Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Saturday, December 29, 2012

PRE-TRIAL INTERVENTION TO DISMISS CRIMINAL CHARGES


PRE-TRIAL INTERVENTION TO DISMISS CRIMINAL CHARGES

By Kenneth A. Vercammen, Esq.
  
         Under New Jersey Criminal Statute and Court Rules, someone charged with an indictable criminal offense who has no prior indictable offenses can apply for Pre-Trial Intervention (PTI).

         This Statute permits someone under limited instances to have the prosecution stopped and enter into a probation type program.  If someone successfully completes PTI, the indictable criminal charge is dismissed.

         PTI is not available if the criminal offense is a disorderly person offense, such as simple assault, harassment or shoplifting.  For persons facing a first offense possession of marijuana charge, they can apply for a Conditional Discharge.  NJSA 2C: 36-1.  As a practical matter, in Municipal Courts, the defense attorneys sometimes can work out an agreement with the complainant in a municipal court criminal ticket to have the prosecution put on hold for six months.  If the defendant complies with a stipulated agreement, such as staying away from the complainant, after 6 months the criminal charges are dismissed.

         It is imperative for someone facing criminal charges, whether indictable or not, to immediately hire an experienced criminal attorney.  Do not rely on a real estate attorney to be familiar with recent cases affecting PTI and criminal law. 
        
         PTI should be applied for immediately with Criminal Case Management.  The Court Rules have time limits for PTI application and appeals from denial of PTI.   Procedurally, once the accused applies for PTI, a decision to accept or reject is made by the Criminal Case Manager.  If approved, then the County Prosecutor's office must approve.  Thereafter, the Superior Court Judge assigned to the case must approve the defendant.
        
         If the defendant is rejected by either the Criminal Case Manager or the Prosecutor, a timely appeal must be filed with the Superior Court Judge. 

In Practice, we recommend the client obtain letters of reference, proof of employment, a resume and other supporting documents to provide to the Criminal Case Manager.  Similar to sentencing, you want to provide any beneficial facts and papers to demonstrate the defendant is a first time offender who is unlikely to again be involved in a criminal case.

         Similar to Probation following a guilty plea or conviction, the Court can require the defendant to perform certain acts.  Typical re-trial orders direct the defendant to not get arrested, undergo drug and alcohol testing and counseling, pay restitution or perform other acts.  Non-compliance will result in dismissal from PTI.  Thereafter, the defendant must face trial on all indictable charges.

CONDITIONAL DISCHARGE OF DRUG CHARGES IN MUNICIPAL COURT

         Some people are charged with possession of small amounts of marijuana.  N.J.S.A. 2C:36A-1 provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under N.J.S.A. 24:21-27, 2C:43-12 or 2C:36A-1 may apply for a conditional discharge.  The court upon notice to the prosecutor and subject to 2C:36A-1(c) may, on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation,, supervised or unsupervised attendance at Narcotics Anonymous, etc.).  Since the granting of a conditional discharge is optional with the court, defense counsel should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community.

         Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances.  For applicable caselaw on conditional discharges, see State v. Sanders, N.J. Super. 515 (App. Div. 1979), State v. Banks, 157 N.J. Super. 442 (Law Div. 1978), State v. Grochulski, 133 N.J. Super. 586 (Law Div. 1975), State v. Teitelbaum, 160 N.J. Super. 450 (Law Div. 1978), State v. DiLuzio, 130 N.J. Super. 220 (Law Div. 1974).  The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty.  The court further has the option to suspend a defendant's driver's license for between six months and two years.

         The conditional discharge period is also between six months and two years.  If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes.  The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed.  If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.

         Drug related offenses carry substantial penalties which will effect a client for the rest of his life.  The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances.  Members of the Bar must accept the challenge and apply their legal talents to ensure that the rights of their clients are protected.

CONCLUSION

         Pre-trial intervention is an excellent opportunity for someone to avoid a trial and conviction.  If facing criminal charges, quickly sit down with a criminal attorney to protect your rights.  If accepted into Pre-Trial Intervention, Motions to Suppress Evidence and other Motions are put on hold.