Kenneth Vercammen's Law office represents people
charged with criminal offenses and disorderly offenses. We provide
representation throughout New Jersey. Criminal charges can cost you. If
convicted, you can face high fines, jail, Probation and other penalties. Don't
give up! Our Law Office can provide experienced attorney representation for
criminal violations. Our website njlaws.com provides information on criminal
offenses we can be retained to represent people.
Under the New Jersey Court Rules, a New Jersey
Attorney can negotiate with the Prosecutor to attempt to reduce penalties.
We can appear in court for you on most Central New
Jersey criminal traffic violations. The following is the law in New Jersey on
Plea Bargains:
Rule: 7:6-2. Pleas, Plea Agreements (Municipal
Court, Traffic)
(a) Pleas Allowed, Guilty Plea. (1) Generally. A
defendant may plead not guilty or guilty, but the court may, in its discretion,
refuse to accept a guilty plea. The court shall not, however, accept a guilty
plea without first addressing the defendant personally and determining by
inquiry of the defendant and, in the court's discretion, of others, that the
plea is made voluntarily with understanding of the nature of the charge and the
consequences of the plea and that there is a factual basis for the plea. Upon
the request of the defendant, the court may, at the time of the acceptance of a
guilty plea, order that the plea shall not be evidential in any civil
proceeding. If a defendant refuses to plead or stands mute or if the court
refuses to accept a guilty plea, the court shall enter a plea of not guilty. If
a guilty plea is entered, the court may hear the witnesses in support of the
complaint prior to judgment and sentence and after such hearing may, in its
discretion, refuse to accept the plea. (2) Corporate Defendants. A defendant
that is a corporation, partnership or unincorporated association may enter a
plea by an authorized officer or agent and may appear by an officer or agent
provided the appearance is consented to by the named party defendant and the
court finds that the interest of justice does not require the appearance of
counsel. If a defendant that is a corporation, partnership, or unincorporated
association fails to appear or answer, the court, if satisfied that service was
duly made, shall enter an appearance and a plea of not guilty for the defendant
and thereupon proceed to hear the complaint. (b) Withdrawal of Plea. A motion
to withdraw a plea of guilty shall be made before sentencing, but the court may
permit it to be made thereafter to correct a manifest injustice. (c)
Conditional Pleas. With the approval of the court and the consent of the
prosecuting attorney, a defendant may enter a conditional plea of guilty,
reserving on the record the right to appeal from the adverse determination of
any specified pretrial motion. A defendant who prevails on appeal shall be
afforded the opportunity to withdraw the guilty plea. Nothing in this rule
shall be construed as limiting the right to appeal provided by R. 7:5-2(c)(2).
(d) Plea Agreements. Plea agreements may be entered into only pursuant to the
Guidelines and accompanying Comment issued by the Supreme Court, both of which
are annexed as an Appendix to Part VII, provided, however, that: (1) the
complaint is prosecuted by the municipal prosecutor, the county prosecutor, or
the Attorney General; and (2) the defendant is either represented by counsel or
knowingly waives the right to counsel on the record; and (3) the prosecuting
attorney represents to the court that the complaining witness and the victim,
if the victim is present at the hearing, have been consulted about the
agreement; and (4) the plea agreement involves a matter within the jurisdiction
of the municipal court and does not result in the downgrade or disposition of
indictable offenses without the consent of the county prosecutor, which consent
shall be noted on the record; and (5) the sentence recommendations, if any, do
not circumvent minimum sentences required by law for the offense. When a plea
agreement is reached, its terms and the factual basis that supports the
charge(s) shall be fully set forth on the record pursuant to section (a)(1) of
this rule. If the judge determines that the interest of justice would not be
served by accepting the agreement, the judge shall so state, and the defendant
shall be informed of the right to withdraw the plea if already entered.
APPENDIX TO PART VII. GUIDELINES FOR OPERATION OF
PLEA AGREEMENTS IN THE MUNICIPAL COURTS OF NEW JERSEY GUIDELINE 1. PURPOSE
The purpose of these Guidelines is to allow for
flexibility in the definitions and exclusions relating to the plea agreement
process as that process evolves and certain offenses come to demand lesser or
greater scrutiny.
GUIDELINE 2. DEFINITIONS
For the purpose of these Guidelines, a plea
agreement occurs in a Municipal Court matter whenever the prosecutor and the
defense agree as to the offense or offenses to which a defendant will plead
guilty on condition that any or all of the following occur: (a) the prosecutor
will recommend to the court that another offense or offenses be dismissed, (b)
the prosecutor will recommend to the court that it accept a plea to a lesser or
other offense (whether included or not) than that originally charged, (c) the
prosecutor will recommend a sentence(s), not to exceed the maximum permitted,
to the court or remain silent at sentencing,
GUIDELINE 3. PROSECUTOR'S RESPONSIBILITIES
Nothing in these Guidelines should be construed to
affect in any way the prosecutor's discretion in any case to move unilaterally
for an amendment to the original charge or a dismissal of the charges pending
against a defendant if the prosecutor determines and represents on the record
the reasons in support of the motion.
GUIDELINE 4. LIMITATION
No plea agreements whatsoever will be allowed in
drunken driving or certain drug offenses. Those offenses are: A. Driving while
under the influence of liquor or drugs (N.J.S.A. 39:4-50) and, B. Possession of
marijuana or hashish (N.J.S.A. 2C:35-10a(4)); being under the influence of a
controlled dangerous substance or its analog (N.J.S.A. 2C:35-10b); and use,
possession or intent to use or possess drug paraphernalia, etc. (N.J.S.A.
2C:36-2). If a defendant is charged with driving while under the influence of
liquor or drugs (N.J.S.A. 39:4-50) and refusal to provide a breath sample
(N.J.S.A. 39:4-50.2) arising out of the same factual transaction, and the
defendant pleads guilty to the N.J.S.A. 39:4-50 offense, the judge, on
recommendation of the prosecutor, may dismiss the refusal charge. Nothing
contained in these limitations shall prohibit the judge from considering a plea
agreement as to the collateral charges arising out of the same factual
transaction connected with any of the above enumerated offenses in sections A
and B of this Guideline. The judge may, for certain other offenses subject to
minimum mandatory penalties, refuse to accept a plea agreement unless the
prosecuting attorney represents that the possibility of conviction is so remote
that the interests of justice requires the acceptance of a plea to a lesser
offense.
SUPREME COURT COMMENT
Over the years, various unique practices and
procedures have evolved in connection with the disposition of Municipal Court
cases. Thus, it is the intent of these Guidelines to define regulated plea
agreements as including every common practice that has evolved as a subterfuge
for plea agreements. Therefore, for the purpose of these Guidelines, a plea
agreement shall include all of those traditional practices, utilized by
prosecutors and defense counsel, including "merger",
"dismissal", "downgrade" or "amendment."
Generally, "mergers" involve the dismissal of lesser-included or
related offenses when a defendant pleads to the most serious offense.
"Dismissals" involve motions to dismiss a pending charge or plea
agreement when the municipal prosecutor determines, for cause (usually for
insufficient evidence), that the charge should be dismissed.
"Downgrades" or "amendments" involve the taking of a plea
to a lesser or included offense to that originally charged. Plea agreements are
to be distinguished from the discretion of a prosecutor to charge or
unilaterally move to dismiss, amend or otherwise dispose of a matter. It is
recognized that it is not the municipal prosecutor's function merely to seek
convictions in all cases. The prosecutor is not an ordinary advocate. Rather,
the prosecutor has an obligation to defendants, the State and the public to see
that justice is done and truth is revealed in each individual case. The goal
should be to achieve individual justice in individual cases. In discharging the
diverse responsibilities of that office, a prosecutor must have some latitude
to exercise the prosecutorial discretion demanded of that position. It is well
established, for example, that a prosecutor should not prosecute when the
evidence does not support the State's charges. Further, the prosecutor should
have the ability to amend the charges to conform to the proofs.
___________________
Plea Bargaining in Superior Court: (Indictable;
Felony Type Cases)
RULE 3:9. PRETRIAL PROCEDURE 3:9-1. Pre arraignment
Conference; Plea Offer; Arraignment/Status Conference; Pretrial Hearings;
Pretrial Conference
(a) Pre arraignment Conference. After an indictment
has been returned, or an indictment sealed pursuant to R. 3:6-8 has been
unsealed, a copy of the indictment, together with the discovery for each
defendant named therein, shall be either delivered to the criminal division
manager's office, or be available at the prosecutor's office, within 14 days of
the return or unsealing of the indictment. After the return or unsealing of the
indictment the defendant shall be notified in writing by the criminal division
manager's office to appear for a pre arraignment conference which shall occur
within 21 days of indictment. At the pre arraignment conference the defendant
shall be: informed of the charges; notified in writing of the date, place and
time for the arraignment/status conference; and, if the defendant so requests,
be allowed to apply for pretrial intervention. The criminal division manager's
office shall not otherwise advise the defendant regarding the case. The
criminal division manager's office, shall ascertain whether the defendant is
represented by counsel and, if not, whether the defendant can afford counsel.
If indicated that the defendant cannot afford counsel, the defendant shall be
required to fill out the Uniform Defendant Intake Report. If a defendant does
not appear for a pre arraignment conference, the criminal division manager
shall notify the criminal presiding judge who may issue a bench warrant. A
defendant's attorney seeking discovery shall obtain a copy of the indictment
and discovery from either the criminal division manager's office, or the
prosecutor's office, no later than 28 days after the return or unsealing of the
indictment. No pre arraignment conference shall be required where the defendant
has counsel and the criminal division manager's office has established to its
satisfaction: (1) that an appearance has been filed under Rule 3:8-1; (2) that
discovery, if requested, has been obtained; and (3) that defendant and counsel
have obtained a date, place and time for the arraignment/status conference. (b)
Plea Offer. Prior to the arraignment/status conference the prosecutor and the
defense attorney shall discuss the case, including any plea offer, and any
outstanding or anticipated motions and discovery issues and report thereon at
the arraignment/status conference. Any plea offer to be made by the prosecutor
shall be in writing and forwarded to the defendant's attorney. (c)
Arraignment/Status Conference; In Open Court. The arraignment/status conference
shall be conducted in open court no later than 50 days after indictment. The
judge shall advise the defendant of the substance of the charge and confirm
that the defendant has reviewed with counsel the indictment and the discovery.
The defendant shall enter a plea to the charges. If the plea is not guilty
counsel shall report on the results of plea negotiations, and such other
matters, discussed pursuant to R. 3:9-1(b), which shall promote a fair and
expeditious disposition of the case. At that time, the dates for hearing of
motions and a further status conference, if necessary shall be scheduled
according to the differentiated needs of each case. Each status conference
shall be held in open court with the defendant present. (d) Pretrial Hearings.
Hearings to resolve issues relating to the admissibility of statements by
defendant, pretrial identifications of defendant, sound recordings, and motions
to suppress shall, unless otherwise ordered by the court, be held prior to the
pretrial conference and, upon a showing of good cause, hearings as to
admissibility of other evidence may also be held pretrial. (e) Pretrial
Conference. If the court determines that discovery is complete; that all
motions have been decided or scheduled in accordance with paragraph (d); and
that all reasonable efforts to dispose of the case without trial have been made
and it appears that further negotiations or an additional status conference
will not result in disposition of the case, or progress toward disposition of
the case, the judge shall conduct a pretrial conference. The conference shall
be conducted in open court with the prosecutor, defense counsel and the defendant
present. Unless objected to by a party, the court shall ask the prosecutor to
describe, without prejudice, the case including the salient facts and
anticipated proofs and shall address the defendant to determine that the
defendant understands: (1) the State's final plea offer, if one exists; (2) the
sentencing exposure for the offenses charged, if convicted; (3) that ordinarily
a negotiated plea will not be accepted after the pretrial conference and a
trial date has been set; (4) the nature, meaning and consequences of the fact
that a negotiated plea will not be accepted after the pretrial conference has
been conducted and a trial date has been set; and (5) that the defendant has a
right to reject the plea offer and go to trial and that if the defendant goes
to trial the State must prove the case beyond a reasonable doubt. If the case
is not otherwise disposed of, a pretrial memorandum shall be prepared in a form
prescribed by the Administrative Director of the Courts. The pretrial
memorandum shall be reviewed on the record with counsel and the defendant
present and shall be signed by the judge who, in consultation with counsel,
shall fix the trial date. No admissions made by the defendant or defendant's
attorney at the conference shall be used against the defendant unless the
admissions are reduced to writing and signed by the defendant and defendant's
attorney. The court shall also inform the defendant of the right to be present
at trial, the trial date set, and the consequences of a failure to appear for trial,
including the possibility that the trial will take place in defendant's
absence.
3:9-2. Pleas
A defendant may plead only guilty or not guilty to
an offense. The court, in its discretion, may refuse to accept a plea of guilty
and shall not accept such plea without first addressing the defendant
personally and determining by inquiry of the defendant and others, in the
court's discretion, that there is a factual basis for the plea and that the
plea is made voluntarily, not as a result of any threats or of any promises or
inducements not disclosed on the record, and with an understanding of the
nature of the charge and the consequences of the plea. When the defendant is
charged with a crime punishable by death, no factual basis shall be required
from the defendant before entry of a plea of guilty to a capital offense or to
a lesser included offense, provided the court is satisfied from the proofs
presented that there is a factual basis for the plea. For good cause shown the
court may, in accepting a plea of guilty, order that such plea not be
evidential in any civil proceeding. If a plea of guilty is refused, no
admission made by the defendant shall be admissible in evidence against the
defendant at trial. If a defendant refuses to plead or stands mute, or if the
court refuses to accept a plea of guilty, a plea of not guilty shall be
entered. Before accepting a plea of guilty, the court shall require the
defendant to complete, insofar as applicable, and sign the appropriate form
prescribed by the Administrative Director of the Courts, which shall then be
filed with the criminal division manager's office.
3:9-3. Plea Discussions; Agreements; Withdrawals
(a) Plea Discussions Generally. The prosecutor and
defense attorney may engage in discussions relating to pleas and sentences and
shall engage in discussions about such matters as will promote a fair and
expeditious disposition of the case, but except as hereinafter authorized the
judge shall take no part in such discussions. (b) Entry of Plea. When the
prosecutor and defense counsel reach an agreement concerning the offense or
offenses to which a defendant will plead on condition that other charges
pending against the defendant will be dismissed or an agreement concerning the
sentence that the prosecutor will recommend, or when pursuant to paragraph (c)
the defendant pleads guilty based on indications by the court of the maximum
sentence to be imposed, such agreement and such indications shall be placed on
the record in open court at the time the plea is entered. (c) Disclosure to
Court. On request of the prosecutor and defense counsel, the court in the
presence of both counsel may permit the disclosure to it of the tentative
agreement and the reasons therefor in advance of the time for tender of the
plea or, if no tentative agreement has been reached, the status of negotiations
toward a plea agreement. The court may then indicate to the prosecutor and
defense counsel whether it will concur in the tentative agreement or, if no
tentative agreement has been reached and with the consent of both counsel, the
maximum sentence it would impose in the event the defendant enters a plea of
guilty, assuming, however, in both cases that the information in the
presentence report at the time of sentence is as has been represented to the
court at the time of the disclosure and supports its determination that the
interests of justice would be served thereby. If the agreement is reached
without such disclosure or if the court agrees conditionally to accept the plea
agreement as set forth above, or if the plea is to be based on the court's
conditional indication about the sentence, all the terms of the plea, including
the court's concurrence or its indication concerning sentence, shall be placed
on the record in open court at the time the plea is entered. Nothing in this
Rule shall be construed to authorize the court to dismiss or downgrade any
charge without the consent of the prosecutor. (d) Agreements Involving the
Right to Appeal. Whenever a plea agreement includes a provision that defendant
will not appeal, the court shall advise the defendant that notwithstanding the
inclusion of this provision, the defendant has the right to take a timely
appeal if the plea agreement is accepted, but that if the defendant does so,
the plea agreement may be annulled at the option of the prosecutor, in which
event all charges shall be restored to the same status as immediately before
the entry of the plea. In the event the defendant files an appeal in a case in
which the plea agreement included a provision that the defendant will not
appeal, the State must exercise its right to annul the plea agreement no later
than seven days prior to the date scheduled for oral argument or submission
without argument. (e) Withdrawal of Plea. If at the time of sentencing the
court determines that the interests of justice would not be served by
effectuating the agreement reached by the prosecutor and defense counsel or by
imposing sentence in accordance with the court's previous indications of
sentence, the court may vacate the plea or the defendant shall be permitted to
withdraw the plea. (f) Conditional Pleas. With the approval of the court and
the consent of the prosecuting attorney, a defendant may enter a conditional
plea of guilty reserving on the record the right to appeal from the adverse
determination of any specified pretrial motion. If the defendant prevails on
appeal, the defendant shall be afforded the opportunity to withdraw his or her
plea. Nothing in this rule shall be construed as limiting the right of appeal
provided for in R. 3:5-7(d). (g) Plea Cut Off. After the pretrial conference
has been conducted and a trial date set, the court shall not accept negotiated
pleas absent the approval of the Criminal Presiding Judge based on a material
change of circumstance, or the need to avoid a protracted trial or a manifest
injustice.
Supreme Court Commentary
A "material change of circumstance" means
a change occurring after the pretrial conference that strengthens or weakens
the case of either the prosecution or the defense sufficiently to warrant a
change in their plea-bargaining position. It may be either a change in fact or
in the knowledge of counsel. Some typical examples that may constitute material
change of circumstance are when new charges are filed after the plea cut-off
has been imposed, a justifiable change of attorney has occurred, a witness
becomes no longer available, a mistrial or hung jury occurs, or some evidence
is newly discovered. However, a change that would ordinarily have been
anticipated by a reasonably competent prosecutor or defense attorney, including
some of the foregoing examples, is not material, nor is a change that results
from counsel's lack of ordinary diligence. A "protracted trial" is
one that will probably last two weeks or more. One example of manifest
injustice is a sexual assault case in which the victim is a child: if the trial
is likely to have a substantial adverse impact on the child, the court may
grant waiver. "Manifest injustice" does not exist simply because the
parties are able and willing to enter into a plea bargain on or before the date
of trial. A plea cut-off rule was recommended by twelve members of the Supreme
Court Criminal Practice Committee in a dissent filed with the 1992-94 Criminal
Practice Committee Recommendations on Rules Necessary to Implement the Criminal
Division Operating Standards. See 137 N.J.L.J. 54, 76-77. That recommendation
was adopted and further modified by the Supreme Court as set forth above.
PLEA FORM in Criminal Indictable matters You need to
read, discuss with Your Attorney, then sign and initial each line
DEFENDANT¹S NAME before Judge __________ 1. List
the charges to which you are pleading guilty: Statutory Maximum Ind./Acc./Comp.
# Count Nature of Offense Degree Time Fine VCCB Assmt
Your total exposure as the result of this plea is:
TOTAL __________
APPROPRIATE ANSWER 2 a. Did you commit the
offense(s) to which you are pleading guilty? ___
2.b. Do you understand that before the judge can
find you guilty, you will have to tell the judge what you did that makes you
guilty of the particular offense(s)? ___ 3. Do you understand what the charges
mean? ___
Do you understand that by pleading guilty you are
giving up certain rights? Among them are: a. The right to a jury trial in which
the State must prove you guilty beyond a reasonable doubt?
b. The right to remain silent?
4. c. The right to confront the witnesses against
you?
Do you understand that if you plead guilty: a. You
will have a criminal record?
b. Unless the plea agreement provides otherwise,
you could be sentenced to serve the maximum time in confinement, to pay the
maximum fine and to pay the maximum Violent Crimes Compensation Board
Assessment?
c. 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? (Penalty is $30 if
offense occurred between January 9, 1986 and December 22, 1991 inclusive. $25
if offense occurred before January 1, 1986.)
5. d. If the offense occurred on or after February
1, 1993 but was before March 13, 1995, and you are being sentenced to probation
or a State correctional facility, you must pay a transaction fee of up to $1.00
for each occasion when a payment or installment payment is made? If the offense
occurred on or after March 13, 1995 and the sentence is to probation, or the
sentence otherwise requires payments of financial obligations to the probation
division, you must pay a transaction fee of up to $2.00 for each occasion when
a payment or installment payment is made?
* VIOLENT CRIMES COMPENSATION BOARD ASSESSMENT
e. If the offense occurred on or after August 2,
1993 you must pay a $75 Safe Neighborhood Services Fund assessment for each
conviction?
f. If the offense occurred on or after January 5,
1994 and you agreeing sentenced to probation, you must pay a fee of up to $25
per month for the term of probation?
g. If the crime occurred on or after January 9,
1997 you must pay a Law Enforcement Officers Training and Equipment Fund
penalty of $30?
5. h. 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?
6. Do you understand that the court could, in its
discretion, impose a minimum time in confinement to be served before you become
eligible for parole, which period could be as long as one half of the period of
the custodial sentenced imposed?
Did you enter a plea of guilty to any charges that
require a mandatory period of parole ineligibility or a mandatory extended
term?
7. a. If you are pleading guilty to such a charge,
the minimum mandatory period of parole ineligibility is years and months (fill
in the number of years/months) and the maximum period of parole ineligibility
can be years and months (fill in the number of years/months) and this period
cannot be reduced by good time, work, or minimum custody credits. 8. Are you
pleading guilty to a crime that contains a presumption of imprisonment which
means that it is almost certain that you will go to state prison?
Are you presently on probation or parole?
9. a. Do you realize that a guilty plea may result
in a violation of your probation or parole? [N/A] Are you presently serving a
custodial sentence on another charge? 10. a. Do you understand that a guilty
plea may affect your parole eligibility? [N/A] 11. Do you understand that if
you have plead guilty to, or have been found guilty on other charges, or are
presently serving a custodial term and the plea agreement is silent on the issue,
the court may require that all sentences be made to run consecutively?
[N/A] List any charges the prosecutor has agreed to
recommend for dismissal: Ind./Acc./Compl. # Count Nature of Offense and Degree
12. 13. Specify any sentence the prosecutor has agreed to recommend:
Has the prosecutor promised that he or she will
NOT:
a. Speak at sentencing?
b. Seek an extended term of confinement?
14. c. Seek a stipulation of parole ineligibility?
15. Are you aware that 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?
16. Do you understand that 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?
17. Do you understand that if you are not a United
States citizen or national, you may be deported by virtue of your plea of
guilty?
18. Have you discussed with your attorney the legal
doctrine of merger?
19. Are you giving up your right at sentence to
argue that there are charges you pleaded guilty to for which you cannot be
given a separate sentence?
20. List any other promises or representations that
have been made by you, the prosecutor, your defense attorney, or anyone else as
a part of this plea of guilty:
21. Have any promises other than those mentioned on
this form, or any threats, been made in order to cause you to plead guilty?
22. a. Do you understand that the judge is not
bound by any promises or recommendations of the prosecutor and that the judge
has the right to reject the plea before sentencing you and the right to impose
a more severe sentence?
b. Do you understand that if the judge decides to
impose a more severe sentence than recommended by the prosecutor, that you may
take back your plea?
c. Do you understand that if you are permitted to
take back your plea of guilty because of the judge¹s sentence, that anything
you say in furtherance of the guilty plea cannot be used against you at trial?
23. Are you satisfied with the advice you have
received from your lawyer?
24. Do you have any questions concerning this plea?
