| Indictments in Criminal Cases in Superior Court |
| 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
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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
accused's 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 defendant's 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 prosecutor's 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 prosecutor's 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 defendant's
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 defendant's 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 defendant's
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.
Call Kenneth Vercammen and issue for a confidential
consultation.
About the Author Kenneth A. Vercammen is a trial attorney in
Edison, Middlesex County, New Jersey. He often lectures for the New Jersey
State Bar Association, New Jersey Institute for Continuing Legal Education and
Middlesex County College on personal injury, criminal / municipal court law,
and drunk driving. He has published 125 articles in national and New Jersey
publications on municipal court and litigation topics. He has served as a
Special Acting Prosecutor in seven different cities and towns in New Jersey and
also successfully defended hundreds of individuals facing Municipal Court and
Criminal Court charges. In his private practice, he has devoted a substantial
portion of his professional time to the preparation and trial of litigated
matters. He has appeared in Courts throughout New Jersey several times each
week on many personal injury matters, Municipal Court trials, matrimonial
hearings, and contested administrative law hearings. Since 1985, his primary
concentration has been on litigation matters. Mr. Vercammen gained other legal
experiences as the Confidential Law Clerk to the Court of Appeals of Maryland
(Supreme Court), with the Delaware County, PA District Attorney Office handling
Probable Cause Hearings, Middlesex County Probation Dept as a Probation
Officer, and an Executive Assistant to Scranton District Magistrate, Thomas
Hart, in Scranton, PA. KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW
2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge
what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to
random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a
DNA sample, which could be used by law enforcement for the investigation of
criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a
victim who has suffered a loss and if the court finds that you are able or will
be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be
required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you
may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense.
2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000,
and lose your driver's license for 6 months - 2years. You must pay a Law
Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board
assessment of $50 ($100 minimum if you are convicted of a crime of violence)
for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund
assessment for each conviction.
14. If you are being sentenced to probation, you must pay a
fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future
cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is
not impossible. There are a number of viable defenses and arguments which can
be pursued to achieve a successful result. Advocacy, commitment, and
persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal
offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first
degree, for a specific term of years which shall be fixed by the court and
shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a
specific term of years which shall be fixed by the court and shall be between
five years and 10 years;
(3) In the case of a crime of the third degree, for a
specific term of years which shall be fixed by the court and shall be between
three years and five years;
(4) In the case of a crime of the fourth degree, for a
specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines
and Restitutions. A person who has been convicted of an offense may be
sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the
first degree;
(2) $150,000.00 when the conviction is of a crime of the
second degree;
b. (1) $15,000.00 when the conviction is of a crime of the
third degree;
(2) $10,000.00 when the conviction is of a crime of the
fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons
offense;
d. $500.00, when the conviction is of a petty disorderly
persons offense;
If facing any criminal charge, retain an experienced
attorney immediately to determine you rights and obligations to the court.
Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
