Kenneth Vercammen's Law office represents individuals
charged with criminal and serious traffic violations throughout New Jersey.
As set forth in NJ Practice, Vol. 31, Criminal Practice and
Procedure, (1997), Sec 292, the defendant has a right to bail before conviction
except if he/she is charged with a crime punishable by death and the prosecutor
presents proof that there is a likelihood of conviction and reasonable grounds
to believe that the death penalty may be imposed. 3 This means that absent
exceptional circumstances the defendant has a right to pretrial liberty if the
defendant provides surety in such amount as in the judgment of the court will
insure the defendant's appearance at trial. 4 Stated in other terms, the right
to bail means that in the absence of exceptional circumstances the defendant
has the right to have the court set bail in an amount which does not exceed that
which will insure defendant's appearance at trial, and if the defendant can
"come up" with cash in that amount, or 10 percent of that amount if
the defendant is eligible to be released on 10 percent cash bail,5 or a bond or
other surety, then the defendant must be released. Immediately retain a local
criminal attorney. Don't wait for a Public Defender to look at your case down
the road while you sit in jail.
BAIL PROCEDURES
Any person unable to post bail shall have his or her bail
reviewed by a Superior Court judge not later than the next day which is neither
a Saturday, Sunday or legal holiday. 7 A first motion for a reduction of bail
shall be held by the Court no later than 7 days after it is filed.8
AMOUNT OF BAIL
R. 3:26-1(a) provides in relevant part that "{a}ll
persons, shall be bailable before conviction on such terms as, in the judgment
of the court, will insure their presence in court when required having regard
for their background, residence, employment and family status and, particularly,
the general policy against unnecessary sureties and detention." These
factors are specified in more detail in State v. Johnson 10 as follows:
seriousness of the charge; the likelihood of conviction and the extent of
punishment; defendant's criminal record, if any, and previous record on bail,
if any; defendant's reputation and mental condition; the length of his/her
residence in the community; defendant's family ties and relationships;
defendant's employment status, record of employment and financial condition;
the identity of responsible members of the community vouching for his/her
reliability; and any other factors indicating defendant's mode of life, or ties
to the community. The likelihood of flight must be considered in light of these
factors and bail set accordingly. R. 3:26-2[c]. R. 3:26-2[d]. 61 N.J. 351, 294
A.2d 245 [1972].
The Courts often examine some of the following criteria:
RESIDENCE - Lived at present residence one year or more. PRIOR RECORD No
convictions. FAMILY TIES - Lives with family and has frequent contact with
other relatives. EMPLOYMENT - Has regular job less than four months, or
receiving Unemployment Compensation, or welfare aid, or supported by family or
savings. TOTAL TIME IN NEW JERSEY - Ten years or more residence or business in New
Jersey. MISCELLANEOUS FACTORS MAKING FLIGHT UNLIKELY - Good Health
CONCLUSION If facing a criminal offense, retain an attorney
to represent you immediately.
A criminal attorney can make a motion to reduce bail
RULE 3:26. BAIL
3:26-1. Right to Bail Before Conviction
(a) Persons Entitled; Standards for Fixing. All persons,
except those charged with crimes punishable by death when the prosecutor
presents proof that there is a likelihood of conviction and reasonable grounds
to believe that the death penalty may be imposed, shall be bailable before
conviction on such terms as, in the judgment of the court, will ensure their
presence in court when required. The factors to be considered in setting bail
are: (1) the seriousness of the crime charged against defendant, the apparent
likelihood of conviction, and the extent of the punishment prescribed by the
Legislature; (2) defendant's criminal record, if any, and previous record on
bail, if any; (3) defendant's reputation, and mental condition; (4) the length
of defendant's residence in the community; (5) defendant's family ties and
relationships; (6) defendant's employment status, record of employment, and
financial condition; (7) the identity of responsible members of the community
who would vouch for defendant's reliability; (8) any other factors indicating
defendant's mode of life, or ties to the community or bearing on the risk of
failure to appear, and, particularly, the general policy against unnecessary
sureties and detention. In its discretion the court may order the release of a
person on that person's own recognizance. The court may also impose terms or
conditions appropriate to the defendant's release including conditions
necessary to protect persons in the community. (b) On Failure to Indict. If a
person committed for a crime punishable by death is not indicted within 3
months after commitment, a judge of the Superior Court, for good cause shown,
may admit the person to bail. (c) On Failure to Move Indictment. If an
indictment or accusation is not moved for trial within 6 months after
arraignment, a judge of the Superior Court, for cause shown, may discharge the
defendant upon the defendant's own recognizance. (d) Extradition Proceedings.
Where a person has been arrested in any extradition proceeding, that person may
be admitted to bail except where that person is charged with a crime punishable
by death.
Note: Source-R.R. 3:9-1(a)(b)(c)(d); paragraph (a) amended
September 28, 1982 to be effective immediately; paragraphs (a), (b), (c) and
(d) amended July 13, 1994 to be effective January 1, 1995; paragraph (a)
amended July 10, 1998 to be effective September 1, 1998.
3:26-2. Authority to Set Bail
(a) Authority to Set Initial Bail. A Superior Court judge
may set bail for a person charged with any offense. Bail for any offense except
murder, kidnapping, manslaughter, aggravated manslaughter, aggravated sexual
assault, sexual assault, aggravated criminal sexual contact, a person arrested
in any extradition proceeding or a person arrested under N.J.S.A. 2C:29-9b for
violating a restraining order may be set by any other judge, or in the absence
of a judge, by a municipal court administrator or deputy court administrator.
(b) Initial Bail Set. Initial bail shall be set pursuant to R. 3:4-1(a) or (b)
on indictable or non-indictable offenses. (c) Review of Initial Set. Any person
unable to post bail shall have his or her bail reviewed by a Superior Court
judge no later than the next day which is neither a Saturday, Sunday nor a
legal holiday. Except in those indictable cases in which a Superior Court judge
has set bail, a municipalcourt judge has the authority to make bail revisions
up to and including the time of the defendant's first appearance before the
court. A municipal court judge has the authority to make bail revisions on any
non-indictable offense at any time during the course of the proceedings. (d)
Bail Reductions. A first motion for bail reduction shall be heard by the court
no later than seven days after it is filed.
Note: Source-R.R. 3:9-3(a)(b)(c); amended July 24, 1978 to
be effective September 11, 1978; amended May 21, 1979 to be effective June 1,
1979; amended August 28, 1979 to be effective September 1, 1979; amended July
26, 1984 to be effective September 10, 1984; caption amended, former text
amended and redesignated paragraph (a) and new paragraphs (b), (c) and (d)
adopted July 13, 1994 to be effective January 1, 1995; paragraph (b) amended
January 5, 1998 to be effective February 1, 1998.
3:26-3. Bail for Witness
(a) Authority to Issue. A Superior Court judge may, on
application, conduct proceedings under N.J.S.A. 2C:104-1 et seq. as to any
person who can give testimony relevant to the prosecution or defense of a
pending indictment, accusation, or complaint for a crime or a criminal
investigation before a grand jury. (b) Application. The application shall be
captioned in Superior Court and entitled "In the Matter of (name of person
alleged to be a material witness)". The application shall include a copy
of the pending indictment, complaint, or accusation and an affidavit
containing: (1) the name and address of the person alleged to be a material
witness, (2) a summary of the facts believed to be known by the alleged
material witness and the relevance to the criminal action or investigation, (3)
the grounds for belief that the person has material and necessary information
concerning the pending criminal action or investigation, and (4) the reasons
why the alleged material witness is unlikely to respond to a subpoena. If the
application requests an arrest warrant, the affidavit shall set forth why
immediate arrest is necessary. (c) Order to Appear. If there is probable cause
to support issuance of a material-witness order against the person named in the
application, the court may order the person to appear at a hearing to determine
whether the person should be adjudged a material witness. The order and a copy
of the application shall be served personally on the alleged material witness
at least 48 hours before the hearing, unless the judge adjusts the time period
for good cause, and shall advise the person of: (1) the time and place of the
hearing, and (2) the right to be represented by an attorney and to have an
attorney appointed if the person cannot afford one. (d) Warrant for Immediate
Detention. If there is clear and convincing evidence that the person will not
be available as a witness unless immediately detained, the court may issue an
order requiring that the person be brought before the court immediately. If the
detention does not take place during regular court hours, the person shall be
brought to the emergency-duty Superior Court judge. The judge shall inform the
person: (1) the reason for detention, (2) the time and place of the hearing to
determine whether the person is a material witness, and (3) that the person has
a right to an attorney and to have an attorney appointed if the person cannot
afford one. The judge shall set conditions for release, or, if there is clear
and convincing evidence that the person will not be available as a witness
unless detention is continued, the judge may order the person held until the
material-witness hearing, which shall take place as soon as practicable but no
later than 48 hours after detention. (e) Detention Without Prior Court Authorization.
Where a law enforcement officer hasdetained an alleged material witness without
prior court authorization, the law enforcement officer shall immediately bring
the person before a Superior Court judge. If the detention does not take place
during regular court hours, the person shall be brought to the emergent duty
Superior Court judge. The judge shall determine whether there is probable cause
to believe that the person is a material witness of a crime and, if an
indictment, accusation, or complaint for that crime has not issued or if a
grand jury has not commenced a criminal investigation of that crime, the judge
shall determine whether there is probable cause to believe that, within 48
hours of the detention, an indictment, accusation, or complaint will issue or a
grand jury investigation will commence. The judge will then proceed as if an
application for an order had been made under paragraph (b). (f) Material
Witness Hearing. At the material-witness hearing, the person shall have the
rights: (1) to be represented by an attorney and to have an attorney appointed
if the person cannot afford one, (2) to be heard and to present witnesses and
evidence, and (3) unless otherwise sealed by the court for exceptional
circumstances, to have all of the evidence in support of the application, and
(4) to confront and cross-examine witnesses. If there is probable cause to
believe that the person possesses information material to the prosecution of a
defense of a pending indictment, accusation or complaint for a crime, or a
criminal investigation before a grand jury and is unlikely to respond to
subpoena, the judge shall: (1) set forth findings of facts on the record, and
(2) set the conditions of release of the material witness. (g) Conditions of
Release or Detention. Conditions of release for a material-witness or for a
person held on an application for a material-witness order shall be the least
restrictive to effect the order of the court including but not limited to: (1)
placing the witness in the custody of a designated person or organization
agreeing to supervise the person; (2) restricting the travel, association, or
place of abode of the person during the period of detention; (3) requiring the
person to report; (4) setting bail, or (5) imposing other reasonable
restrictions on the material witness. No person may be detained unless the
judge finds, by clear and convincing evidence, that detention is the only
method that will secure the appearance of the material witness. A person
detained as a material witness or pending a material-witness hearing shall be
lodged in appropriate quarters and shall not be held in a jail or prison. (h)
Deposition. The prosecutor, defendant, or material witness may apply to the
Superior Court for an order directing that a deposition be taken to preserve
the witness's testimony, for use at trial if the witness becomes unavailable,
as provided by R. 3:13-2. After a deposition has been taken, the judge shall
vacate the material-witness order and impose the least restrictive conditions
to secure the appearance of the material witness. (i) Reconsideration of
Material Witness Order. On motion of the material witness, prosecutor, or
defendant, a material witness order may be reconsidered at any time by the
court that entered the order.
Note: Source-R.R. 3:9-4; first paragraph re-designated
paragraph (a) and paragraphs (b), (c) (d), (e), (f) and (g) added July 14, 1992
to be effective September 1, 1992; paragraph (g) amended July 13, 1994 and
December 9, 1994, to be effective January 1, 1995; paragraphs (a), (b), (c) and
(d) amended, former paragraphs (e), (f), and (g) amended and redesignated as
paragraphs (f), (g), and (h), and new paragraphs (e) and (i) adopted July 10,
1998 to be effective September 1, 1998.
3:26-4. Form and Place of Deposit; Location of Real Estate;
Record of Recognizances,Discharge and Forfeiture Thereof
(a) Deposit of Bail. A person admitted to bail shall,
together with that person's sureties, sign and execute a recognizance before
the person authorized to take bail or, if the defendant is in custody, the
person in charge of the place of confinement. The recognizance shall contain
the terms set forth in R. 1:13-3(b) and shall be conditioned upon the
defendant's appearance at all stages of the proceedings until final
determination of the matter, unless otherwise ordered by the court. One or more
sureties may be required. Cash may be accepted, and in proper cases no security
need be required. A corporate surety shall be one approved by the Commissioner
of Insurance and shall execute the recognizance under its corporate seal, cause
the same to be duly acknowledged and shall annex thereto proof of authority of
the officers or agents executing the same and of corporate authority and
qualification. Bail given in the Superior Court shall be deposited with the
clerk of the county in which the offense was committed, provided that upon
order of the court bail shall be transferred from the county of deposit to the
county in which defendant is to be tried. Real estate offered as bail for
indictable and non-indictable offenses shall be approved by and deposited with
the clerk of the county in which the offense occurred and not with the
Municipal Court clerk. In any county, with the approval of the Assignment
Judge, a program may be instituted for the deposit in court of cash in the
amount of 10 percent of the amount of bail fixed. (b) Limitation on Individual
Surety. Unless the court for good cause otherwise permits, no surety, other
than an approved corporate surety, shall enter into a recognizance or
undertaking for bail if there remains undischarged any previous recognizance or
bail undertaken by that surety. (c) Real Estate in Other Counties. Real estate
owned by a surety located in a county other than the one in which the bail is
taken may be accepted, in which case the clerk of the court in which the bail
is taken shall forthwith transmit a copy of the recognizance certified by that
clerk to the clerk of the county in which the real estate is situated, who
shall record it in the same manner as if the recognizance had been taken in
that clerk's county. (d) Record of Recognizance. The clerk of every court,
except the municipal court, before which any recognizance shall be entered into
shall record immediately, in alphabetical order in a book kept for that
purpose, the names of the persons entering into the recognizance, the amount
thereof and the date of its acknowledgment. Such book shall be kept in the
clerk's office of the county of which such court shall be held, and be open for
public inspection. In municipal court proceedings the record of the
recognizance shall be entered in the docket book maintained by the clerk. (e)
Record of Discharge; Forfeiture. When any recognizance shall be discharged by
court order upon proof of compliance with the conditions thereof or by reason
of the judgment in any matter, the clerk of the court shall enter the word
"discharged" and the date of discharge at the end of the record of
such recognizance. When any recognizance is forfeited, the clerk of the court
shall enter the word "forfeited", and the date of forfeiture at the
end of the record of such recognizance, and shall give notice of such
forfeiture to the county counsel. When real estate of the surety located in a
county other than the one in which the bail was taken is affected, the clerk of
the court in which such recognizance is given shall forthwith send notice of
the discharge or forfeiture and the date thereof to the clerk of the county
where such real estate is situated, who shall make the appropriate entry at the
end of the record of such recognizance. (f) Cash Deposit. When a person other
than the defendant deposits cash in lieu of bond,the person making the deposit
shall file an affidavit concerning the lawful ownership thereof, and on
discharge such cash may be returned to the owner named in the affidavit. (g)
Ten Percent Cash Bail. Except in first or second degree cases as set forth in
N.J.S.A. 2A:162-12 and unless the order setting bail specifies to the contrary,
whenever bail is set pursuant to Rule 3:26-1, bail may be satisfied by the
deposit in court of cash in the amount of ten-percent of the amount of bail
fixed and defendant's execution of a recognizance for the remaining ninety
percent. No surety shall be required unless the court fixing bail specifically
so orders. When cash equal to ten-percent of the bail fixed is deposited
pursuant to this Rule, if the cash is owned by someone other than the
defendant, the owner shall charge no fee for the deposit other than lawful
interest and shall submit an affidavit with the deposit so stating and also
listing the names of any other persons for whom the owner has deposited bail.
The person making the deposit authorized by this subsection shall file an
affidavit concerning the lawful ownership thereof, and on discharge such cash
may be returned to the owner named in the affidavit.
Note: Source-R.R. 3:9-5(a)(b)(c)(d)(e)(f)(g). Paragraph (a)
amended June 29, 1973 to be effective September 10, 1973; paragraph (a) amended
July 16, 1979 to be effective September 10, 1979; paragraph (g) adopted
November 5, 1986 to be effective January 1, 1987; paragraph (a) amended
November 7, 1988 to be effective January 2, 1989; paragraphs (f) and (g)
amended July 14, 1992 to be effective September 1, 1992; paragraphs (a), (b)
and (c) amended July 13, 1994 to be effective September 1, 1994; paragraph (a)
amended February 27, 1995 to be effective immediately.
3:26-5. Justification of Sureties
Every surety, except an approved corporate surety, shall
justify by affidavit and be required to describe therein the property by which
the surety proposes to justify and the encumbrances thereon, the number and
amount of other recognizances and undertakings for bail entered into by the
surety and remaining undischarged, if any, and all the surety's other
liabilities. No recognizance shall be approved unless the surety thereon shall
be qualified.
Note: Source-R.R. 3:9-6; amended July 13, 1994 to be
effective September 1, 1994.
3:26-6. Forfeiture
(a) Declaration; Notice. Upon breach of a condition of a
recognizance, the court on its own motion shall order forfeiture of the bail,
and the criminal division manager shall forthwith send notice of the forfeiture
to county counsel, the defendant, and the surety. The notice shall direct that
judgment will be entered as to any outstanding bail absent a written objection
seeking to set aside the forfeiture, which must be filed within 45 days of the
date of the notice. (b) Setting Aside. The court may direct that a forfeiture
be set aside if its enforcement is not required in the interest of justice upon
such conditions as it imposes. (c) Enforcement; Remission. When a forfeiture is
not set aside or satisfied, the court shall, upon expiration of the 45 days provided
for in paragraph (a), summarily enter a judgment of default for any outstanding
bail and execution may issue thereon. After entry of such judgment, the court
may remit it in whole or in part in the interest of justice. In any contested
proceeding, county counsel shall appear on behalf of the government. County
counsel shall be responsible for collection of forfeited amounts.
Note: Source-R.R. 3:9-7 (a)(b)(c) (first sentence) (d);
paragraphs (a) and (c) amended July 10, 1998 to be effective September 1, 1998.
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
