Indictable Offenses
Compiled by Kenneth A. Vercammen, Past Chair NJ State Bar
Municipal Court and DWI Section
Our office represents people charged with criminal and
disorderly persons offenses. We provide representation throughout New Jersey.
Criminal charges can cost you. If convicted of a criminal offense, you face
prison, high fines, Probation over 18 months and other penalties. Don't give
up! Our Law Office can provide experienced attorney representation for criminal
matters. Our website njlaws.com provides information on criminal offenses we
can be retained to represent people.
According to the NJ Judiciary Website
http://www.judiciary.state.nj.us/criminal/crproc.htm#indictment , the Criminal
Division of Superior Court manages criminal complaints from the time they are
lodged to their resolution or disposition. The accused, or defendant is charged
with an offense as a result of a formal complaint issued by a law enforcement
agent or a citizen who believes an offense has been committed against their
person or property. It can also result from an indictment by a panel of
citizens gathered to consider evidence, called a grand jury. Arrests can occur
at the scene of a crime or based on warrants or sworn statements ordering a
court appearance. All arrests must be based on probable cause, or reasonable
grounds to believe that an offense has been committed, and the defendant may
have committed the offense. Complaints state the reasons for the charge, and
refer to offenses listed in the New Jersey Code of Criminal Justice (Title 2C)
that includes all of the laws against criminal behavior.
Criminal offenses are heard, or considered in Superior
Court, and are more serious than non-criminal charges heard in municipal courts
where the offense occurred. Defendants found guilty, or convicted of crimes
face more serious consequences, with punishments spanning probation supervision
and fines to the loss of liberty through confinement for a year or more. Crimes
are classified by degree. Degrees range from first to fourth degree offenses. A
First degree crime carries the potential penalty of 10-20 years in prison. A
Second degree crime carries a potential penalty of 5-10 years. Defendants who
are convicted of first and second degree crimes face a presumptive term of
incarceration. It is assumed that they will be sentenced to serve time in
prison. A Third degree crime may result in 3-5 years if convicted, while Fourth
degree crimes carry a potential penalty of up to 18 months in jail. There is a
presumption of non-custodial sentences on 3rd and 4th degree offenses.
Complaints heard in municipal courts are disorderly persons
offenses or petty disorderly persons violations, which carry less restrictive
punishments upon conviction. Disorderly persons offenses may be sentenced to up
to 6 months in a county jail. Petty disorderly convictions may render up to 30
days in jail.
First Appearance
Once a complaint is issued, defendants are either arrested
or issued a summons or notice to appear in municipal or Superior Court on a
first appearance. If they fail to appear, a warrant may be issued for the
accuseds arrest by a judge if there is proof of service, or evidence that the
accused received the summons or notice and failed to appear. At the first court
appearance, defendants are advised of their rights. Their bail is reviewed.
Right To Counsel
At their first appearance defendants are advised of their
right to counsel. This means that they are entitled to have an attorney
represent them and answer the charges.
In making indigence determinations, Criminal Division staff
consider defendants ability to post bail, the amount of bail posted, the
willingness of friends and family members to pay for an attorney, and any
factor related to a defendants claim of impoverishment. They review tax
returns, credit and wage records and any other relevant information regarding
the ability of defendants to hire their own attorneys.
Pre-Indictment Events Following the filing of a complaint
and the first court appearance, the prosecutors office in each county
determines whether to pursue a criminal complaint. Prosecutors determine if
cases have merit and sufficient evidence to pursue a conviction. In most
counties, the prosecutors Case Screening Unit reviews police reports and
interviews victims and witnesses to determine if the original charges will be
prosecuted. If there is insufficient evidence, the charges are downgraded to
disorderly persons offenses and remanded or sent to the municipal courts for a
hearing or dismissed. In some counties, prosecutors pre-screen potential
Superior Court filings before a complaint is signed.
The Grand Jury
If a criminal case has not been, downgraded, diverted or
dismissed, the prosecutor will present the case to a grand jury for an
indictment. The grand jury is composed of a group of citizens who have been
selected from voter registration, drivers license and tax lists. The grand jury
considers evidence presented by the county prosecutor and determines if there
is sufficient evidence to formally charge defendants and require them to
respond to the charge(s). An indictment is not a finding of guilt. Generally,
neither the accused nor their attorneys are present. Witnesses normally testify
regarding the crime. After considering evidence, if a majority of the 23 jurors
vote to indict defendants, they must face further criminal proceedings. The
return of an indictment is called a true bill. If a majority finds the evidence
to be insufficient to indict, the grand jury enters a no bill and the charge(s)
are dismissed. The jury may, however, decide to charge defendants with a less
serious offense, to be downgraded or remanded to the municipal court. The
accused must appear in municipal court to face a disorderly persons or petty
disorderly persons charge.
The Indictment Process The grand jury will consider evidence
presented by the county prosecutor and determine if there is sufficient
evidence to formally charge the defendant and oblige him to respond to the
charge(s). The indictment is not a finding of guilt or a conviction. The
finding is a true bill that triggers further proceedings in the Criminal
Superior Court. If a majority finds the evidence to be insufficient to indict,
the grand jury enters a no bill and the charge(s) are dismissed. The jury may,
however, decide to charge the defendant with a less serious offense, to be
heard in municipal court. In this instance, the offense has been downgraded or
remanded. The accused must appear in municipal court to face a disorderly
persons or petty disorderly persons charge.
The Pre-Arraignment Conference and The Arraignment
Within twenty-one days of the return of an indictment, a
pre-arraignment conference is held. This pre-arraignment conference is
scheduled by Criminal Division Staff. Defendants may wish to apply for public
defender representation at this point if they are not yet represented. Prior to
this conference, discovery or evidence is available to defense counsel. This
exchange of evidence provides the defense with an opportunity to review the
evidence the prosecution intends to use against the accused prior to the
conference. After reviewing the discovery provided prior to the pre arraignment
conference, defendants may decide to apply for Pretrial Intervention, or to
enter plea bargain negotiations. Defendants may also indicate their intention
to plead guilty to the charge for which they were indicted.
Arraignment/Status Conference Standards
A formal arraignment occurs no later than 50 days after an
indictment. Upon notification by the Criminal Division, defendants must appear
and face formal notification of their charges. They may plead guilty at this point,
either to the charges listed in the indictment, or to revised charges resulting
from plea negotiations. If plea negotiations are ongoing, the parties may
review the status of the plea offer. Defendants may also opt to apply for the
Pretrial Intervention program at this juncture, or be admitted into the program
if they have not applied prior to arraignment. If a guilty plea is entered at
the formal arraignment, Criminal Division judges order a presentence
investigation to be conducted by Criminal Division case supervisors. Sentencing
will follow the presentence investigation, generally 4 to 6 weeks after
convictions. Status Conferences and the Pretrial Conference
Defendants who have pleaded not guilty at this point may
continue plea negotiations or preparation for trial. Pretrial case resolutions
may occur at a status conference, where a defendant may decide to enter a
guilty plea with or without a negotiated plea bargain.
At Pretrial Conferences, defendants may enter a guilty plea
to the charges. At the Pretrial Conference, there is a plea cutoff date, after
which no further plea negotiations can occur. If no agreement to plead guilty
is reached, the matter will proceed to trial. Criminal Division staff track
conferences to ensure that cases are moving without undue delays. The
Administrative Office of the Courts evaluates statistics entered by Criminal
Division staff in each criminal court to stay abreast of overall case movements
statewide. The Criminal Practice Division assists local court staff to address
backlogs if they should occur.
Conclusion It is well established that the prosecution of a
defendant is a criminal proceeding. In such a proceeding the burden of proof is
upon the state to establish all elements of the offense beyond a reasonable doubt.
Defense counsel must subpoena its necessary witnesses and prepare for trial.
Never attempt to represent yourself if you are facing serious charges. Criminal
offenses carry substantial penalties which will effect you for the rest of your
life. The space limits of this article do not allow detailed explanation of the
extensive caselaw on criminal offenses. Other defenses are explained in greater
details in other articles on njlaws.com.
COURT RULE 3:7. INDICTMENT AND ACCUSATION
COURT RULE 3:7. INDICTMENT AND ACCUSATION
3:7-1. Entitling of Papers
The indictment and all subsequent papers in connection
therewith shall be entitled in the Superior Court.
Note: Source-R.R. 3:4-1(b).
3:7-2. Use of Indictment or Accusation
A crime punishable by death shall be prosecuted by
indictment. Every other crime shall be prosecuted by indictment unless the
defendant, after having been advised of the right to indictment, shall waive
the right in a signed writing, in which case the defendant may be tried on
accusation. Such accusation shall be prepared by the prosecuting attorney and
entitled and proceeded upon in the Superior Court. Nothing herein contained,
however, shall be construed as limiting the criminal jurisdiction of a
municipal court over indictable offenses provided by law and these rules.
Note: Source-R.R. 3:4-2(a)(b). Amended August 28, 1979 to be
effective September 1, 1979; amended July 13, 1994 to be effective September 1,
1994.
3:7-3. Nature and Contents of Indictment or Accusation
(a) Nature and Contents Generally. The indictment or
accusation shall be a written statement of the essential facts constituting the
crime charged, need not contain a formal commencement and shall be signed by
the prosecuting attorney. The indictment shall be endorsed as a true bill by
the foreperson and conclude: against the peace of this State, the government
and dignity of the same. Allegations made in one count of the indictment or
accusation may be incorporated by reference in another count. It may be alleged
in a single count either that the means by which the defendant committed the
offense are unknown or that the defendant committed it by one or more specified
means. An indictment or accusation or any count thereof charging the violation
of a statute or statutes shall state the official or customary citation
thereof, but error in the citation or its omission shall not be ground for
dismissal of the indictment or accusation or for reversal of a conviction if
the error or omission did not prejudicially mislead the defendant. Surplusage
in the indictment or accusation may be stricken by the court on defendants
motion.
(b) Indictment for Murder or Manslaughter. Every indictment
for murder shall specify whether the act is murder as defined by N.J.S.A. 2C:11-3(a)(1),
(2) or (3) and whether the defendant is alleged: (1) to have committed the act
by his or her own conduct or (2) to have procured the commission of the offense
by payment or promise of payment, of anything of pecuniary value or (3) to be
the leader of a drug trafficking network, as defined in N.J.S.A.2C:35-3, and
who, in furtherance of a conspiracy enumerated in N.J.S.A. 2C:35-3, commanded
or by threat or promise solicited the commission of the offense. In every
indictment for aggravated manslaughter or manslaughter, it is sufficient to
charge that the defendant committed aggravated manslaughter or manslaughter
contrary to N.J.S.A. 2C:11-4.
Note: Source-R.R. 3:4-3(a)(b)(c), 3:4-4. Paragraphs (a) and
(b) amended August 28, 1979 to be effective September 1, 1979; paragraph (b)
amended September 28, 1982 to be effective immediately; paragraph (b) amended
July 13, 1993 to be effective immediately; paragraphs (a) and (b) amended July
13, 1994 to be effective September 1, 1994.
3:7-4. Amendment of Indictment or Accusation
The court may amend the indictment or accusation to correct
an error in form or the description of the crime intended to be charged or to
charge a lesser included offense provided that the amendment does not charge
another or different offense from that alleged and the defendant will not be
prejudiced thereby in his or her defense on the merits. Such amendment may be
made on such terms as to postponing the trial, to be had before the same or
another jury, as the interest of justice requires.
Note: Source-R.R. 3:4-5. Amended August 28, 1979 to be
effective September 1, 1979; amended July 13, 1994 to be effective September 1,
1994.
3:7-5. Bill of Particulars
A bill of particulars shall be ordered by the court if the
indictment or accusation is not sufficiently specific to enable the defendant
to prepare a defense. The defendant shall move therefore pursuant to Rule
3:10-2. The application shall point out clearly the particulars sought by the
defense. The prosecutor shall furnish the bill of particulars within 10 days
after the order of the court. Further particulars may be ordered when a demand
therefor is promptly made. A bill of particulars may be amended at any time,
subject to such conditions as the interest of justice requires. Any particulars
that have been furnished to the defendant pursuant to R. 3:13-3 and 4 shall not
be subject to an application pursuant to this rule.
Note: Source-R.R. 3:4-6; amended June 29, 1990, to be
effective September 4, 1990; amended July 13, 1994 and December 9, 1994, to be
effective January 1, 1995.
3:7-6. Joinder of Offenses
Two or more offenses may be charged in the same indictment
or accusation in a separate count for each offense if the offenses charged are
of the same or similar character or are based on the same act or transaction or
on 2 or more acts or transactions connected together or constituting parts of a
common scheme or plan. Relief from prejudicial joinder shall be afforded as
providedby R. 3:15-2.
Note: Source-R.R. 3:4-7; amended August 28, 1979 to be
effective September 1, 1979.
3:7-7. Joinder of Defendants
Two or more defendants may be charged in the same indictment
or accusation if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting an
offense or offenses. Such defendants may be charged in one or more counts
together or separately and all of the defendants need not be charged in each
count. The disposition of the indictment or accusation as to one or more of several
defendants joined in the same indictment or accusation shall not affect the
right of the State to proceed against the other defendants. Relief from
prejudicial joinder shall be afforded as provided by R. 3:15-2.
Note: Source-R.R. 3:4-8.
3:7-8. Issuance of Warrant or Summons Upon Indictment or
Accusation
Upon the return of an indictment or the filing of an
accusation a summons or warrant shall be issued in accordance with R. 3:3-1 by
the criminal division manager as designee of the deputy clerk of the Superior
Court in the manner provided by law for each defendant named in the indictment
or accusation who is not under bail. The criminal division manager as designee
of the deputy clerk of the Superior Court, upon request, shall issue more than
one warrant or summons for the same defendant. If the defendant fails to appear
in response to a summons, a warrant shall issue.
If a summons is issued upon indictment to a defendant who
has not been previously held to answer a complaint, the defendant shall undergo
all post-arrest identification procedures that are required by law upon arrest,
on the return date of the summons, or upon written request of the appropriate
law enforcement agency.
Note: Source-R.R. 3:4-9. Amended July 22, 1983 to be
effective September 12, 1983; amended July 13, 1994 to be effective January 1,
1995.
3:7-9. Form of Warrant and Summons
The warrant shall contain the name of the defendant or, if
the defendants name is unknown, any name or description by which the defendant
can be identified with reasonable certainty, shall describe the offense charged
in the indictment or accusation and shall command that the defendant be
arrested and brought before the court. Conditions of pretrial release shall be
fixed by the court and endorsed thereon, and in such case the sheriff or warden
may take any bail. The summons shall be in the same form as the warrant except
that it shall be directed to thedefendant and require the defendant to appear
to plead before the court at a stated time and place. The summons shall also
state that if the defendant fails to so appear, a warrant for defendants arrest
shall issue.
Note: Source-R.R. 3:4-10(a)(b); amended July 13, 1994 to be
effective January 1, 1995.
3:7-10. Execution of Service; Return
(a) Execution of Warrant. The warrant shall be executed in
accordance with R. 3:3-3.
(b) Summons to an Individual. The summons shall be served
upon an individual in accordance with R. 4:4-4.
(c) Summons to a Corporation. Service of a summons upon a
defendant corporation, municipal or otherwise, shall be made in accordance with
R. 4:4-4. If the defendant corporation does not appear, the court shall order
the clerk to enter an appearance for said corporation and endorse the plea of
not guilty on the indictment or accusation, and further proceedings may then be
had thereon in the same manner as if the corporation had appeared and so
pleaded. A plea to an indictment or accusation by a defendant corporation shall
be made by an attorney of this State.
(d) Service Upon a Corporation by Publication. If the
summons directed to a corporation is returned not served and it appears to the
satisfaction of the court that the summons could not be served, the court shall
by order direct the corporation to cause its appearance and plea to be entered
by a day certain. A copy of such order shall within 5 days after the date
thereof be published in a newspaper in this State once, at least 2 weeks
preceding the day certain so specified. If the defendant corporation does not
appear within the time specified by the order, the court, if satisfied that publication
has been duly made, shall direct the clerk to enter an appearance and a plea of
not guilty for the defendant corporation, and thereupon further proceedings may
be had on the indictment or accusation as provided by these rules.
(e) Return. The officer executing a warrant shall make
prompt return thereof to the court, and at the request of the prosecuting
attorney any unexecuted warrant shall be returned and cancelled. The officer
serving a summons shall make return thereof on or before the return day. At the
request of the prosecuting attorney made at any time while the indictment or
accusation is pending, a warrant returned unexecuted and not cancelled or a
summons returned unserved or a duplicate thereof may be delivered by the clerk
to the sheriff or other authorized officer for execution or service.
Note: Source-R.R. 3:4-11, 3:4-12(a)(b), 3:4-13. Paragraph
(d) amended July 7, 1971 to be effective September 13, 1971.
