Friday, January 25, 2019
Bob Carlson ABA president from Montana & Joseph Kubes Findlaw & Ken Vercammen Estate Committee Chair .JPG
Bob Carlson ABA president from Montana & Joseph Kubes Findlaw & Ken Vercammen Estate Committee Chair .JPG
ABA Committee Meeting Las Vegas
ABA Estate Planning, Probate and Trust and Elder Law Joint Committee Meeting Friday Jan 25 at 9am
round table discussion Free to all ABA attendees
Caesars Palace Las Vegas, NV Forum Ballroom 23 Pool Level
Ideas to be discussed:
-BUILDING THE MILLION DOLLAR ESTATE PLANNING PRACTICE
A Lawyer’s Guide toCreating a Winning Estate Planning Practice
Ethically Building Your Practice using free and low-cost online methods
1. Website specific http://www.njwillsprobatelaw.com
2. Blog https://njprobate.blogspot.com
3. Facebook Law Office
4. LinkedIn- post articles, events
5. Google+ aka Google Plus
6. Twitter
7. YouTube
8. Avvo Legal rating
9. JD Supra
10. Justia Lawyer Directory:
11. Yelp for Business Owners
Plus
Jan 25 7:00 AM – 7:40 AM See the Strip in the Daylight Jog with Ken Vercammen, in the Palace Casino. This is the main hotel entrance in front of The Fountains and out to the Las Vegas Blvd/The Strip.
Thursday, January 24, 2019
Friday, January 18, 2019
UAW-FCA-Ford-General Motors Legal Services Plan for NJ area Retirees
UAW-FCA-Ford-General Motors Legal Services Plan for NJ area Retirees
UAW-FCA-Ford-General Motors Legal Services Plan (the Plan) is a program established and operated for the sole purpose of providing personal legal services to eligible Participants for legal problems arising out of the laws in the United States or Canada. The new Legal Services Plan is a Taft-Hartley Plan created for the purpose of providing “office legal work” (no litigation) and referral services to certain eligible UAW members. It opened on January 25, 2017. Call (800) 482-7700 to request legal services.
For Wills, Power of Attorney, and Estate matters in New Jersey, you can ask to be referred to
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
The Vercammen law office is near the Edison NJ Elks where UAW Local 595 Linden New Jersey (GM Assembly Plant) meets and where UAW Ford Metuchen Edison meet.
What is Covered Under My Legal Services Plan?
The new Legal Services Plan that was negotiated in the 2015 UAW contracts is quite different from the ones that ended under the 2011 contracts. Although it does not provide litigation services, the new Legal Services Plan does provide “office services” (advice and document preparation) for a number of legal matters. Here are some matters that may benefit you under your new legal services plan:
· Wills and Estates. Everyone needs to plan their estate and that usually means the preparation of a Will or Trust. Planning your estate carefully with the assistance of an attorney can give you peace of mind now and make things easier for your family after your death or incapacity.
· Powers of Attorney and Deeds. An attorney can review your current documents, discuss if new ones are needed and prepare new ones if necessary. Make sure your family clearly understands your wishes.
How do I open a case?
Contact the Legal Services Plan at (800) 482-7700. Eligibility will be verified and coverage will be explained. Please note that the Plan emphasizes communication by phone and email.
What if my legal issue is not a covered office work matter ?
Even when a matter is not covered for Staff Attorney assistance, you may be entitled to a low cost referral to a private attorney. Your Legal Services Plan has entered into contracts with hundreds of private attorneys to represent eligible UAW members for a reduced rate.
|
Intake
To open a case call 1-800-482-7700 to talk with one of our knowledgeable Intake Professionals.
More info at
https://www.uawlegalservices.com
Thursday, January 17, 2019
Court Rule 3:26-2. Authority to Set Bail
Court Rule 3:26-2. Authority to Set Bail |
(a) Authority to Set Conditions of Pretrial Release. A Superior Court judge may set conditions of pretrial release for a person charged with any offense and may set monetary bail or take any action in accordance with the Uniform Criminal Extradition Law, N.J.S.A. 2A:160-6 et seq., for any person arrested in any extradition proceeding. Conditions of pretrial release for any offense except homicide or a person arrested in any extradition proceeding may be set by any other judge provided that judge is setting conditions of pretrial release as part of a first appearance pursuant to Rule 3:4-2(b). (b) Conditions of Release. Conditions of pretrial release shall be set pursuant to R. 3:4-2 (c) or (d) for persons for whom a complaint-warrant or a warrant on indictment is issued for an initial charge involving an indictable offense or a disorderly persons offense. A defendant who is the subject of a warrant on indictment is an eligible defendant pursuant to N.J.S.A. 2A:162-15 et seq. (1) The court shall order the pretrial release of a defendant on personal recognizance or on the execution of an unsecured appearance bond when, after considering all the circumstances, the Pretrial Services Program’s risk assessment and recommendations on conditions of release prepared pursuant to N.J.S.A. 2A:162-25, and any information that may be provided by a prosecutor or the defendant, the court finds that the release would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the defendant will not obstruct or attempt to obstruct the criminal justice process. When the court orders pretrial release pursuant to this subparagraph, the court shall, in the document authorizing the release, notify the defendant that the defendant must appear in court when required and that a failure to appear may result in the issuance of a warrant for the defendant’s arrest. (2) If the court does not find, after consideration, that the release described in subparagraph (1) of this paragraph will reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that defendant will not obstruct or attempt to obstruct the criminal justice process, the court may order the pretrial release of the defendant subject to the following: (A) the defendant shall appear in court as required; (B) the defendant shall not commit any offense during the period of release; (C) the defendant shall avoid all contact with an alleged victim of the crime; and (D) the defendant shall avoid all contact with all witnesses who may testify concerning the offense that are named in the document authorizing the defendant’s release or in a subsequent court order. The court may impose other non-monetary conditions of release as set forth in subparagraph (3). (3) The non-monetary condition or conditions of a pretrial release ordered by the court pursuant to this paragraph shall be the least restrictive condition, or combination of conditions, that the court determines will reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or community, and that the defendant will not obstruct or attempt to obstruct the criminal justice process, which may include that the defendant: (A) remain in the custody of a designated person, who agrees to assume supervision and to report any violation of a release condition to the court, if the designated person is able to reasonably assure the court that the defendant will appear in court when required, will not pose a danger to the safety of any other person or the community, and will not obstruct or attempt to obstruct the criminal justice process; (B) will maintain employment, or, if unemployed, actively seek employment; (C) maintain or commence an educational program; (D) abide by specified restrictions on personal associations, place of abode or travel; (E) report on a regular basis to a designated law enforcement agency, or other agency, or Pretrial Services Program; (F) comply with a specified curfew; (G) refrain from possessing a firearm, destructive device, or other dangerous weapon; (H) refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance without a prescription by a licensed medical practitioner; (I) undergo available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose; (J) return to custody for specified hours following release for employment, schooling, or other limited purposes; (K) be placed in a pretrial home supervision capacity with or without the use of an approved electronic monitoring device. The court may order the defendant to pay all or a portion of the costs of the electronic monitoring, but the court may waive the payment for a defendant who is indigent and who has demonstrated to the court an inability to pay all or a portion of the costs; or (L) satisfy any other condition that is necessary to reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the defendant will not obstruct or attempt to obstruct the criminal justice process. If the court enters a release order that is contrary to the release recommendations, including release conditions, of the Pretrial Services Program obtained by using a risk assessment instrument, then the court shall set forth in the document authorizing the release its reasons for not accepting the release recommendations. (c) Modification of Release Conditions. (1) Monetary Bail Reductions. If a defendant is unable to post monetary bail, the defendant shall have that monetary bail reviewed promptly and may file an application with the court seeking a monetary bail reduction which shall be heard in an expedited manner. (2) Review of Conditions of Release. Except as provided in paragraphs (d) or (e) a Superior Court judge may review the conditions of pretrial release set pursuant to Rule 3:26-1 on its own motion, or upon motion by the prosecutor or the defendant alleging that there has been a material change in circumstance that justifies a change in conditions. Any review of conditions pursuant to this rule shall be decided within 30 days of the filing of the motion. Upon a finding that there has been a material change in circumstance, the judge may set new conditions of release but may not order the defendant detained except as provided in Rule 3:4A. (d) Violations of Conditions of Release. (1) Violation of Condition of Release When Defendant Released from Jail. Upon the motion of the prosecutor, when a defendant for whom a complaint-warrant or warrant on indictment was issued is released from custody, the court, upon a finding, by a preponderance of the evidence, that the defendant while on release violated a restraining order or condition of release, or upon a finding of probable cause to believe that the defendant has committed a new crime while on release, may revoke the defendant's release and order that the defendant be detained pending trial where the court, after considering all relevant circumstances including but not limited to the nature and seriousness of the violation or criminal act committed, finds clear and convincing evidence that no monetary bail, non-monetary conditions of release or combination of monetary bail and conditions would reasonably assure the defendant's appearance in court when required, the protection of the safety of any other person or the community, or that the defendant will not obstruct or attempt to obstruct the criminal justice process. (2) Hearing on Violations of Conditions of Release. The defendant shall have a right to be represented by counsel and, if indigent, to have counsel appointed if he or she cannot afford counsel. The defendant shall be provided all available discovery. The defendant shall be afforded the right to testify, to present witnesses, to cross-examine witnesses who appear at the hearing and to present information by proffer or otherwise. Testimony of the defendant given during the hearing shall not be admissible on the issue of guilt in any other judicial proceeding, but the testimony shall be admissible in proceedings related to the defendant’s subsequent failure to appear, proceedings related to any subsequent offenses committed during the defendant’s release, proceedings related to the defendant’s subsequent violation of any conditions of release, any subsequent perjury proceedings, and for the purpose of impeachment in any subsequent proceedings. The defendant shall have the right to be present at the hearing. The rules governing admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing. (e) Person Released on a Complaint-Summons or Summons on Indictment Who is Thereafter Arrested on a Warrant for a Failure to Appear. If a defendant charged on a complaint-summons or a summons on indictment is subsequently arrested on a warrant for a failure to appear in court when required, that defendant shall be eligible for release on personal recognizance or release on monetary bail by sufficient sureties at the discretion of the court. If monetary bail was not set when an arrest warrant for the defendant was issued, the court shall set monetary bail without unnecessary delay, but in no case later than 12 hours after arrest. 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; paragraph (d) amended July 9, 2013 to be effective September 1, 2013; paragraph (a) amended July 27, 2015 to be effective September 1, 2015; caption amended, paragraphs (a) and (b) caption and text amended, former paragraphs (c) and (d) deleted, and new paragraphs (c), (d), and (e) adopted August 30, 2016 to be effective January 1, 2017; paragraphs (b) and (d)(1) amended November 14, 2016 to be effective January 1, 2017; paragraph (a) amended December 6, 2016 to be effective January 1, 2017; paragraphs (b) and (d)(1) amended, and caption and text of paragraph (e) amended July 28, 2017 to be effective September 1, 2017. |
CLAIM OF RIGHT THEFT 2C:20-2c(2)) model jury charge
CLAIM OF RIGHT DEFENSE TO THEFT OFFENSES
(N.J.S.A. 2C:20-2c(2))model jury charge
In addition tohis/hergeneral denial of guilt, the defendant contends thathe/sheis not guilty of (insert appropriate offenses such as theft or receiving stolen property) becausehe/shewas acting pursuant to a claim of right to the property.
Our law provides that it is a defense to prosecution[1]for
(insert appropriate charge such as theft or receiving stolen property)
that the defendant acted under an honest claim of right to the property
(or service) involved or thathe/shehad a right to acquire or dispose of the property ashe/shedid. An honest claim is one that is genuinely, though not necessarily correctly, believed by the defendant.
This defense, you should note, is not limited to situations in which a defendant believedhe/sheowned the property.[2]Rather, it includes those situations in which the defendant honestly, although not necessarily correctly, believed thathe/shehad either the right or the authorization to receive, take, acquire, or dispose of the property.
As
I have mentioned to you, since this is a criminal case the burden of
proof is on the State. The defendant is, therefore, not required to
prove thathe/sheacted
pursuant to a claim of right; rather the burden is on the State to
prove that the defendant did not act pursuant to a claim of right. Thus,
if the State has proven all the elements of (insert offense) beyond a
reasonable doubt and has also proven beyond a reasonable doubt that the
defendant did not honestly believe thathe/shehad
a right to the property or was authorized to receive, take, acquire, or
dispose of the property, then you must find the defendant guilty of
(insert offense).
On
the other hand, if the State has failed to prove beyond a reasonable
doubt one or more elements of (insert offense) or if the State has
failed to prove beyond a reasonable doubt that the defendant did not
honestly believehe/shehad
a right to the property or was authorized to receive, take, acquire, or
dispose of the property, then you must find the defendant not guilty.
[1]The
statute literally states that a claim of right is an affirmative
defense, but when the charge is given the term affirmative should be
deleted in order to avoid any suggestion that the defendant bears the
burden of proof. However, since the defense is an affirmative one, the
charge should only be given when there is some evidence which would
support it.N.J.S.A. 2C:1-13b(1).SeeState v. Ippolito, 287N.J. Super.
375 (App. Div. 1996) where the Court found an evidential basis for this
charge in the defendants testimony that his co-defendant told him that
the co-defendants boss had approved his taking of the property. (Id. at 378).
Court Rule 3:26-1. Right to Bail Before Conviction
Court Rule 3:26-1. Right to Bail Before Conviction |
(a) Persons Entitled; Standards for Fixing.
(1) Persons Charged on a Complaint-Warrant or Warrant on Indictment. Except when the prosecutor files a motion for pretrial detention pursuant to N.J.S.A. 2A:162-18 and 19 and R. 3:4A, all persons for whom a complaint-warrant or a warrant on indictment is issued for an initial charge involving an indictable offense or disorderly persons offense shall be released before conviction on either personal recognizance, the execution of an unsecured appearance bond, or the least restrictive non-monetary conditions that, in the judgment of the court, will reasonably assure their presence in court when required, the protection of the safety of any other person or the community, and that the defendant will not obstruct or attempt to obstruct the criminal justice process. A defendant who is the subject of a warrant on indictment is an eligible defendant pursuant to N.J.S.A. 2A:162-15 et seq. In addition to these non-monetary conditions, monetary conditions may be set for a defendant but only when it is determined that no other conditions of release will reasonably assure the defendant's appearance in court when required. The court shall consider all the circumstances, the Pretrial Services Program's risk assessment and recommendations and any information that may have been provided by a prosecutor or the defendant on conditions of release before making any pretrial release decision. If the court enters a release order containing conditions contrary to those recommended by the Pretrial Services Program obtained using a risk assessment instrument then the court shall set forth its reasons for not accepting those recommendations. The court shall make a pretrial release determination no later than 48 hours after a defendant's commitment to the county jail. When a defendant is charged with a crime or offense involving domestic violence, the court authorizing the release may, as a condition of release, prohibit the defendant from having any contact with the victim. The court may impose any additional limitations upon contact as otherwise authorized by N.J.S.A. 2C:25-26. (2) Persons Charged on a Complaint-Summons or Summons on Indictment. A defendant who is charged on a complaint-summons or summons on indictment shall be released from custody. If the defendant later fails to appear in court when required and the court issues a bench warrant for the defendant's arrest, the court shall at that time either (A) order that the defendant be released on personal recognizance upon arrest or (B) set monetary bail. (b) Restrictions on Contact. If the court imposes conditions of pretrial release that include restrictions on contact between the defendant and defendant's minor child, (1) a copy of the order imposing the restrictions shall be transmitted to the Family Part, and (2) such restrictions shall not affect contact authorized by an order of the Family Part in a child abuse/neglect case entered after any restriction on contact was imposed as part of a bail order. (c) Crimes with Bail Restrictions Defined in N.J.S.A. 2A:162-12. If a defendant is charged with a crime with bail restrictions as defined in N.J.S.A. 2A:162- 12, and the court has set a monetary bail or a combination of a monetary bail and nonmonetary conditions of pretrial release, no later than the time of posting monetary bail or proffering the surety or bail bond, the defendant shall provide to the prosecutor, on the Bail Source Inquiry Questionnaire promulgated by the Attorney General, relevant information about the obligor, indemnifier or person posting cash bail, the security offered, and the source of any money or property used to post the cash bail or secure the surety or bail bond. (d) Extradition Proceedings. Where a person has been arrested in any extradition proceeding pursuant to the Uniform Criminal Extradition Law, N.J.S.A. 2A:160-6 et seq., the court may set monetary bail or bond except where that person is charged with a crime punishable by death or life imprisonment. The court may also commit the person to the county jail as provided by the Uniform Criminal Extradition Law, N.J.S.A. 2A:160-6 et seq. (e) Issuance of Restraining Orders By Electronic Communication. (1) Temporary Domestic Violence Restraining Orders. Procedures authorizing the issuance of temporary domestic violence restraining orders by electronic communication are governed by R. 5:7A(b). (2) N.J.S.A. 2C:35-5.7 and N.J.S.A. 2C:14-12 Restraining Orders. A judge may as a condition of release issue a restraining order pursuant to N.J.S.A. 2C:35-5.7 ("Drug Offender Restraining Order Act of 1999") and N.J.S.A. 2C:14-12 ("Nicole's Law") upon sworn oral testimony of a law enforcement officer or prosecuting attorney who is not physically present. Such sworn oral testimony may be communicated to the judge by telephone, radio or other means of electronic communication. The judge shall contemporaneously record such sworn oral testimony by means of a recording device if available; otherwise, adequate notes summarizing what is said shall be made by the judge. Subsequent to taking the oath, the law enforcement officer or prosecuting attorney must identify himself or herself, specify the purpose of the request and disclose the basis of the application. This sworn testimony shall be deemed to be an affidavit for the purposes of issuance of a restraining order. Upon issuance of the restraining order, the judge shall memorialize the specific terms of the order. That memorialization shall be either by means of a recording device, or by adequate notes. Thereafter, the judge shall direct the law enforcement officer or prosecuting attorney to memorialize the specific terms authorized by the judge on a form, or other appropriate paper, designated as the restraining order. This order shall be deemed a restraining order for the purpose of N.J.S.A. 2C:35-5.7 ("Drug Offender Restraining Order Act of 1999") and N.J.S.A. 2C:14-12 ("Nicole's Law"). The judge shall direct the law enforcement officer or prosecuting attorney to print the judge's name on the restraining order. A copy of the restraining order shall be served upon the defendant by any officer authorized by law. Within 48 hours, the law enforcement officer or prosecuting attorney shall deliver to the judge, either in person, by facsimile transmission or by other means of electronic communication, the signed restraining order along with a certification of service upon the defendant. The certification of service shall include the date and time that service upon the defendant was made or attempted to be made in a form approved by the Administrative Director of the Courts. The judge shall verify the accuracy of these documents by affixing his or her signature to the restraining order. (3) Certification of Offense Location for Drug Offender Restraining Orders. When a restraining order is issued by electronic communication pursuant to N.J.S.A. 2C:35-5.7 ("Drug Offender Restraining Order Act of 1999") where the law enforcement officer or prosecuting attorney is not physically present at the same location as the court, the law enforcement officer or prosecuting attorney must provide an oral statement describing the location of the offense. Within 48 hours the law enforcement officer or prosecuting attorney shall deliver to the judge, either in person, by facsimile transmission or by other means of electronic communication, a certification describing the location of the offense. 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; new paragraph (b) adopted, and former paragraphs (b), (c), and (d) redesignated as paragraphs (c), (d), and (e) June 15, 2007 to be effective September 1, 2007; new paragraph (c) adopted and former paragraphs (c), (d), and (e) redesignated as paragraphs (d), (e), and (f) July 9, 2008 to be effective September 1, 2008; paragraph (a) amended and new paragraph (g) adopted July 9, 2013 to be effective September 1, 2013; caption amended, text of paragraph (a) amended and redesignated as paragraph (a)(1) with caption added, new paragraph (a)(2) adopted, paragraphs (b) and (c) amended, former paragraphs (d) and (e) deleted; former paragraph (f) amended and redesignated as paragraph (d), former paragraph (g) amended and redesignated as paragraph (e) August 30, 2016 to be effective January 1, 2017; paragraph (a)(1) amended November 14, 2016 to be effective January 1, 2017; paragraphs (a)(1), (a)(2), and (d) amended December 6, 2016 to be effective January 1, 2017; captions and text of paragraphs (a)(1) and (a)(2) amended July 28, 2017 to be effective September 1, 2017 |
Civil Model Jury Charge 5.30C crosswalk duty
5.32C Duty of DRIVERS AND PedestrianS Crossing at MARKED OR UNMARKED CROSSWALK (Approved 6/10)
In
addition to considering the general duty I have just described (Model
Civil Charge 5.30 G-2), you are required to consider the following
statutory provisions that involve pedestrians crossing at marked or
unmarked crosswalks which are part of our New Jersey Motor Vehicle Act. They are referred to in N.J.S.A.
39:4-36 which provides, in part that the driver of a vehicle shall
yield the right of way to a pedestrian crossing the roadway within a
marked crosswalk or within any unmarked crosswalk at an intersection.
The
driver of a vehicle shall stop and remain stopped to allow a pedestrian
to cross the road within a marked crosswalk when the pedestrian is
upon, or within one lane of, half of the roadway upon which the vehicle
is traveling or onto which it is turning. Half
of the roadway means all traffic lanes conveying traffic is one
direction of travel, and includes the entire width of a one-way roadway.
No
pedestrian shall leave a curb or other place of safety and walk or run
into the path of a vehicle which is so close that it is impossible for
the driver to yield or stop.
In
the event of a collision between a vehicle and a pedestrian within a
marked crosswalk, or at an unmarked crosswalk at an intersection, there
shall be a permissive inference that the driver did not exercise due
care for the safety of the pedestrian.
Court Rule 3:25-4. Speedy Trial for Certain Defendants
Court Rule 3:25-4. Speedy Trial for Certain Defendants |
(a) Eligible Defendant. For purposes of this rule, the term "defendant" or "eligible defendant" shall mean a person for whom a complaint-warrant or warrant on indictment was issued for an initial charge involving an indictable offense or a disorderly persons offense and who: (1) is detained pursuant to R. 3:4A or R. 3:26-2(d)(1), or (2) is detained in jail due to an inability to post monetary bail pursuant to R. 3:26. A defendant who is the subject of a warrant on indictment is an eligible defendant pursuant to N.J.S.A. 2A:162-15 et seq. This rule only applies to an eligible defendant who is arrested on or after January 1, 2017, regardless of whether the crime or offense related to the arrest was allegedly committed before, on, or after January 1, 2017. For defendants who are detained only for a disorderly persons offense, the limits on pretrial incarceration are governed by R. 7:8-11. (b) On Failure to Indict. (1) Time Period. Except as provided in paragraph (d), prior to the return of an indictment, an eligible defendant shall not remain detained in jail for more than 90 days following the date of the defendant’s commitment to the county jail pursuant to R. 3:4-1(a)(2) or (b) or R. 3:26-2(d)(1) not counting excludable time as set forth in paragraph (i) of this rule. (2) Motion by the Prosecutor to Extend Time for Failure to Indict. If the eligible defendant is not indicted within the time frame calculated pursuant to subparagraph (b)(1) of this rule, the eligible defendant shall be released from jail unless on motion of the prosecutor, the court finds that a substantial and unjustifiable risk to the safety of any other person or the community or the obstruction of the criminal justice process would result from the defendant’s release from custody, so that no appropriate conditions for the defendant’s release could reasonably address that risk, and also finds that the failure to indict the defendant in accordance with the time requirement set forth in this rule was not due to unreasonable delay by the prosecutor. The prosecutor must file a notice of motion accompanied by a brief with an explanation of the reasons for the delay that justify the extension of time for return of the indictment. The motion to extend the time to return an indictment shall be filed with the court and served upon the defendant and defense counsel by the prosecutor no later than 15 calendar days prior to the expiration of the 90 day time frame, adjusted for excludable time, calculated pursuant to paragraph (b)(1) of this rule. Upon good cause shown this deadline may be relaxed. (3) Objection by Defendant. Within 5 calendar days of the receipt of the prosecutor’s motion to extend the time to return an indictment, the defendant may file an objection to the prosecutor’s motion and request oral argument. If the court decides to hold oral argument the argument must be held within 5 calendar days of the defendant’s request. (4) Court Determination. (A) The court shall consider and render a decision on the prosecutor’s motion to extend the time to return an indictment and any objections filed by the defendant within 5 calendar days of the prosecutor’s motion, defendant’s objection, or oral argument, whichever is later. The court may, in its discretion, render a decision on the papers without the need for oral argument. (B) Upon consideration of the motion, if the court finds that a substantial and unjustifiable risk to the safety of any other person or the community or the obstruction of the criminal justice process would result, and also finds that the failure to indict the eligible defendant in accordance with the time requirement calculated pursuant to paragraph (b)(1) of this rule was not due to unreasonable delay by the prosecutor, the court may allocate an additional period of time, not to exceed 45 days, in which the return of an indictment shall occur. (C) If the court orders an eligible defendant detained pursuant to R. 3:4A or R. 3:26-2(d)(1) and the maximum period of detention is reached or if the court currently does not find a substantial and unjustifiable risk or finds unreasonable delay by the prosecutor as described in this rule, the court shall establish conditions of pretrial release, pursuant to R. 3:26, and release the defendant. (c) On Failure to Commence Trial. (1) Time Period. Except as provided in paragraph (d), an eligible defendant who has been indicted shall not remain detained in jail for more than 180 days on that charge following the return or unsealing of the indictment or the detention of the eligible defendant pursuant to R. 3:26-2(d)(1), whichever is later, not counting excludable time as set forth in paragraph (i) of this rule, before commencement of the trial. For an eligible defendant whose most serious charge is a disorderly persons offense, the time period shall begin with the defendant’s initial detention. See R. 7:8-11. (2) Motion by the Prosecutor. If the trial does not commence within the time frame calculated pursuant to paragraph (c)(1) of this rule, the eligible defendant shall be released from jail unless, on motion of the prosecutor, the court finds that a substantial and unjustifiable risk to the safety of any other person or the community or the obstruction of the criminal justice process would result from the defendant’s release from custody, so that no appropriate conditions for the defendant’s release could reasonably address that risk, and also finds that the failure to commence trial in accordance with the time requirement set forth in this rule was not due to unreasonable delay by the prosecutor. The prosecutor must file a notice of motion accompanied by a brief explaining the reasons for the delay that justify the extension of time to commence trial. The motion to extend time to commence trial shall be filed with the court and served upon the defendant and defense counsel by the prosecutor no later than 15 calendar days prior to the date of the expiration of the 180 day time frame, adjusted for excludable time, calculated pursuant to subparagraph (c)(1) of this rule. Upon good cause shown this deadline may be relaxed. (3) Objection by Defendant. Within 5 calendar days of the receipt of the prosecutor’s motion to extend the time to commence trial, the defendant may file an objection to the prosecutor’s motion and request oral argument. If the court decides to hold oral argument the argument must be held within 5 calendar days of the defendant’s request. (4) Court Determination. (A) The court shall consider and render a decision on the prosecutor’s motion to extend the time to commence trial and any objection filed by the defendant within 5 calendar days of the prosecutor’s motion, the defendant’s objection, or oral argument, whichever is later. The court may, in its discretion, render a decision on the papers without the need for oral argument. (B) Upon consideration of the motion, if the court finds that a substantial and unjustifiable risk to the safety of any other person or the community or the obstruction of the criminal justice process would result, and also finds that the failure to commence trial in accordance with the time requirement calculated pursuant to paragraph (c)(1) of this rule was not due to unreasonable delay by the prosecutor, the court may allocate an additional period of time of no more than 60 days in which the defendant’s trial shall commence. If exceptional circumstances are shown, the court may allocate an additional reasonable period of time to commence trial. If the court allocates any additional time, the court should specify its reasons for granting the extension and set forth a specific date for the trial. (C) If the court orders an eligible defendant detained pursuant to R. 3:4A or R. 3:26-2(d)(1) and the maximum period of detention is reached, or if the court currently does not find a substantial and unjustifiable risk or finds unreasonable delay by the prosecutor as described in this rule, the court shall establish conditions of pretrial release, pursuant to R. 3:26, and release the defendant. (d) Period to Readiness of Prosecutor for Trial. (1) An eligible defendant shall be released from jail upon conditions set by the court, after a release hearing if, excluding any delays attributable to the defendant, two years after the court’s issuance of the pretrial detention order pursuant to R. 3:4A or R. 3:26-2(d)(1) for the eligible defendant or after the detention of the eligible defendant in jail due to an inability to post monetary bail as a condition of release, the prosecutor is not ready to proceed to voir dire or to opening argument, or to proceed to the hearing of any motions that had been reserved for the time of trial. In the case of an eligible defendant whose most serious charge is a fourth-degree offense, the maximum time period for the defendant’s incarceration shall be 18 months. In the case of an eligible defendant whose most serious charge is a disorderly persons offense, the maximum time period for the defendant’s incarceration shall be six months. See R. 7:8-11. (2) A delay shall be considered attributable to the defendant if the delay constitutes excluded time pursuant to: (A) subparagraph (1) of paragraph (i) of this rule, but only if the defendant maintains that he or she is not competent to stand trial or is incapacitated; (B) subparagraph (2) of paragraph (i) of this rule; (C) subparagraph (3) of paragraph (i) of this rule, but only if the defendant filed the motion unless the motion was filed in response to unreasonable actions of the prosecutor; (D) subparagraph (4) of paragraph (i) of this rule, but only if the request for the continuance was made by the defendant unless the request was made in response to unreasonable actions by the prosecutor; (E) subparagraph (5) of paragraph (i) of this rule, but only if the defendant left the jurisdiction after receiving notice of a charge or charges in this jurisdiction; (F) subparagraph (9) of paragraph (i) of this rule; (G) subparagraph (11) of paragraph (i) of this rule; or (H) subparagraph (12) of paragraph (i) of this rule, but only if the delay resulted from unreasonable acts or omissions of the defendant. (3) An eligible defendant shall not be released from jail pursuant to subparagraph (1) of this paragraph if, on or before the expiration of the applicable period of detention, the prosecutor has represented that the State is ready to proceed to voir dire or to opening arguments, or to proceed to the hearing of any motions that had been reserved for trial. The prosecutor’s statement of readiness shall be made on the record in open court or in writing. (e) Commencement of Trial. For the purposes of this rule, a trial is considered to have commenced when the court determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions that had been reserved for the time of trial. (f) Subsequent and Superseding Indictments. For purposes of calculating the time period pursuant to paragraph (c)(1) of this rule, the return of a superseding indictment against the defendant shall extend the time for the trial to commence. The court shall schedule the trial to commence as soon as reasonably practicable taking into consideration the nature and extent of differences between the superseded and superseding indictments, including the degree to which the superseding indictment is based on information that was available at the time of the original indictment or that could have been obtained through reasonably diligent efforts at the time of the original indictment. If an indictment is dismissed without prejudice upon motion of the defendant for any reason, and a subsequent indictment is returned, the time for trial shall begin running from the date of the return of the subsequent indictment. (g) New Trial. A trial ordered after a mistrial or upon a motion for a new trial, pursuant to R. 3:20-1, shall commence within 120 days of the entry of the order of the court. A trial ordered upon the reversal of a judgment by any appellate court shall commence within 120 days of the service of that court’s trial mandate. (h) Charge or Indictment in Another Matter. If the defendant is charged or indicted in another matter that results in the defendant’s pretrial detention, the time calculations set forth in this rule shall run independently for each matter. (i) Excludable Time Criteria. The following periods shall be excluded in computing the time in which a case shall be indicted or tried: (1) The time resulting from an examination and hearing on competency and the period during which the defendant is incompetent to stand trial or incapacitated. Excluded time shall begin tolling once the judge signs an order for the examination of the defendant for competency pursuant to N.J.S. 2C:4-5, or once the defense serves the court with a report from its own expert stating that the defendant is not competent to proceed; (2) The time from the filing to the disposition of a defendant’s application for supervisory treatment pursuant to N.J.S. 2C:36A-1 or N.J.S. 2C:43-12 et seq., special probation pursuant to N.J.S. 2C:35-14, drug or alcohol treatment as a condition of probation pursuant to N.J.S. 2C:45-1, or other pretrial treatment or supervisory program; (3) The time resulting from the filing of a motion by either the prosecution or defendant subject to the following: (A) If briefing, argument, and any evidentiary hearings required to complete the record are not complete within 60 days of the filing of the notice of motion, or within any longer period of time authorized pursuant to R. 3:10-2(f), any additional time shall not be excluded. (B) Unless the court reserves its decision until the time of trial, if the court does not decide the motion within 30 days after the record is complete, any additional time during which the motion is under advisement by the court shall not be excluded unless the court finds there are extraordinary circumstances affecting the court’s ability to decide the motion, in which case no more than an additional 30 days shall be excluded. (C) If the court reserves its decision on a motion until the time of trial, the time from the reservation to disposition of that motion shall not be excluded. When the court reserves a motion for the time of trial, the court will be obligated to proceed directly to voir dire or to opening statements after the disposition of the motion. (4) The time resulting from a continuance granted at the defendant’s request or at the request of both the defendant and the prosecutor; such request must specify the amount of time for which the continuance is sought; (5) The time resulting from the detention of the defendant in another jurisdiction, provided the prosecutor has been diligent and has made reasonable efforts to obtain the defendant’s presence; (6) The time resulting from exceptional circumstances including, but not limited to, a natural disaster, the unavoidable unavailability of the defendant, material witness or other evidence, when there is a reasonable expectation that the defendant, witness or evidence will become available in the near future; (7) On motion of the prosecutor, the delay resulting when the court finds that the case is complex due to the number of defendants or the nature of the prosecution subject to the following: (A) the prosecutor shall include in the motion the specific factual basis justifying the delay and the length of the delay sought; the defendant may file an objection within five calendar days of receipt of the prosecutor's motion; and the court may decide the motion without oral argument; (B) the court shall grant the motion only if (i) the prosecutor establishes that due to the complexity of the case it is unreasonable to expect adequate preparation for pretrial proceedings or the trial itself within the time periods set forth in this Rule and (ii) the court finds that the interests of justice served by granting the delay outweigh the best interests of the public and the defendant in a speedy trial; (C) the court ordinarily should grant the motion only when the case involves more than two defendants, novel questions of fact or law, numerous witnesses who may be difficult to locate or produce, or voluminous or complicated evidence; (D) if the court grants the motion, the court shall specify the period of delay and shall set forth on the record, either orally or in writing, its findings as required under subparagraph (7)(B)(ii); and (E) the court may grant the motion only with the approval of the criminal presiding judge. (8) The time resulting from a severance of codefendants when that severance permits only one trial to commence within the time period for trial set forth in this Rule, subject to the following: (A) except as provided in subparagraph (8)(B), the subsequent trial shall commence within 60 days of the conclusion of the previous trial; (B) the court may extend the date for the commencement of the subsequent trial upon the request of the defendant, the defendant’s consent to a request by the prosecutor, or a finding by the court upon motion of the prosecutor that there is good cause for the extension; and (C) if the subsequent trial does not commence within 60 days or, if applicable, within the extended period, any additional time shall not be excluded. (9) The time resulting from a defendant’s failure to appear for a court proceeding; (10) The time resulting from a disqualification or recusal of a judge, provided that the amount of excluded time under this subparagraph shall not exceed 30 days; (11) The time resulting from a failure by the defendant to provide timely and complete discovery; (12) The time for other periods of delay not specifically enumerated if the court finds good cause for the delay, provided that this provision shall be narrowly construed; and (13) Any other time otherwise required by statute. The failure by the prosecutor to provide timely and complete discovery shall not be considered excludable time unless the discovery only became available after the time established for discovery. (j) Excludable Time Calculations. The court shall keep track of each and every instance of excludable time calculated pursuant to this rule, including the number of days excluded as determined by the judge, and ensure that all excludable time is accurately reflected in an appropriate judiciary case management system. The court shall provide notice to the defendant and prosecutor of the impending release date for the defendant at least 20 days prior to that release date. Counsel shall also keep track of excludable time and the pending release dates for an eligible defendant. Note: Adopted August 30, 2016 to be effective January 1, 2017; paragraphs (a), (c)(1), and (d)(1) amended November 14, 2016 to be effective January 1, 2017; paragraphs (a), (b)(4)(C), (c)(1), (c)(4)(C), and (d)(1) amended December 13, 2016 to be effective January 1, 2017; paragraph (a) amended July 28, 2017 to be effective September 1, 2017. |
Chain of Custody in a Criminal Case
According to N.J.
Practice, Criminal Procedure by Honorable Leonard Arnold-Retired, J.S.C.
(West Publishing), Volume 32, Chapter 21, Section 1034,Honorable
Leonard Arnold, J.S.C. a party seeking to introduce an item of physical
evidence must prove that the item was that which was taken from a
particular person or place which makes the item relevant as evidence in
the trial. Such proof is provided by testimony identifying the item as
having been taken from that person or place, and by evidence tracing
custody of the item from the time it was taken until it is offered in
evidence. This latter evidence is necessary to avoid any claim of
substitution or tampering. State v. Johnson, 90 N.J.Super. 105, 216 A.2d
397 (App.Div.1965), aff'd 46 N.J. 289, 216 A.2d 392 (1966).
The required proof includes:
1) testimony by an investigator identifying the item as that which the investigator discovered and took;
2) testimony by that investigator that there was no tampering with the item while it was in his/her custody;
3) testimony regarding delivery of the item to the second person who had custody of the item;
4) possibly similar testimony by the second and each subsequent person who had custody of the item until the time of its presentation in court. Where the item has been submitted to a laboratory for analysis, proof of the chain of custody should ideally include: testimony from the person who took the item (or specimen) to the laboratory; proof of the method of reception and storage at the laboratory prior to and after analysis; up to the time of trial. Arnold, N.J. Practice, Criminal Procedure,
Sec. 1034.
The most difficult aspect of the proof specified above is usually the identification of the evidence by the investigator who discovered it. This difficulty arises because of the frequent failure to properly mark the item. Marking means the placing by the investigator of at least his/her initials on the item. Unfortunately, sometimes items are marked by affixing an evidence tag to the item with a string. The investigator then puts his/her initials on the tag. When the string breaks and the tag is lost it may then be impossible for the investigator to identify the item as being the item that was discovered. Arnold, N.J. Practice, Criminal Procedure, volume 32, Section 1034.
Many excellent texts, one such text is the Handbook of Forensic Science, published by the Federal Bureau of Investigation provide information on the proper marking of various types of evidence, and they should be studied by investigators having responsibility for the collection of physical evidence. But the basic rule is as follows: The item should be marked by the investigator placing his/her initials, date, and the case number on the item itself. Metallic surfaces should be so marked
with a machinist's scribe. Liquids, soils and small fragments should be placed in a suitable container and sealed. The container should be marked by scribing the same information on the container, or by using some other permanent form of marking material on the container. Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034.
With respect to avoiding a claim of substitution of another item for that seized or a claim that the item has been tampered with, the problems of proof can be minimized by designating one investigator as the custodian of all the physical evidence in a given investigation.
All investigators who recover physical evidence must turn that evidence over to the custodian, who is then responsible for the evidence from that time forward until trial. Where evidence must be submitted to a laboratory, the custodian delivers that evidence to the laboratory, and obtains a receipt from the laboratory. When the laboratory has completed its examination, it is the custodian who returns to the laboratory, receives the remaining specimen1 from the laboratory, and retains custody of the specimen and brings it to court for trial. By following this procedure, all the physical evidence can be introduced by
calling the various investigators who recovered and marked each item of physical evidence, the custodian, and the laboratory specialist who examined the evidence. (The laboratory specialist testifies not only with respect to the laboratory examination, the specialist's findings and opinion, but also as to the method of reception and storage at the laboratory prior to and after analysis.) Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034.
The identification of evidence and chain of evidence rules require that the proponent of the evidence show that the evidence has not been tampered with, and that there has not been any irregularity which altered its probative value. State v. Roszkowski, 129 N.J. Super. 315, 323 A2d 531 (App.Div. 1974).
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