Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.

To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box www.njlaws.com.

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500

Monday, February 25, 2019

Criminal Fraud


2C:21-6. Credit cards

a. Definitions. As used in this section:

(1) Cardholder means the person or organization named on the face of a credit card to whom or for whose benefit the credit card is issued by an issuer.

(2) Credit card means any tangible or intangible instrument or device issued with or without fee by an issuer that can be used, alone or in connection with another means of account access, in obtaining money, goods, services or anything else of value on credit, including credit cards, credit plates, account numbers, or any other means of account access.

(3) Expired credit card means a credit card which is no longer valid because the term shown either on it or on documentation provided to the cardholder by the issuer has elapsed.

(4) Issuer means the business organization or financial institution which issues a credit card or its duly authorized agent.

(5) Receives or receiving means acquiring possession or control or accepting a credit card as security for a loan.

(6) Revoked credit card means a credit card which is no longer valid because permission to use it has been suspended or terminated by the issuer.

b. False statements made in procuring issuance of credit card. A person who makes or causes to be made, either directly or indirectly, any false statement in writing, knowing it to be false and with intent that it be relied on, respecting his identity or that of any other person, firm or corporation, or his financial condition or that of any other person, firm or corporation, for the purpose of procuring the issuance of a credit card is guilty of a crime of the fourth degree.

c. Credit card theft.

(1) A person who takes or obtains a credit card from the person, possession, custody or control of another without the cardholders consent or who, with knowledge that it has been so taken, receives the credit card with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder is guilty of a crime of the fourth degree. Taking a credit card without consent includes obtaining it by any conduct defined and prescribed in Chapter 20 of this title, Theft and Related Offenses.

A person who has in his possession or under his control (a) credit cards issued in the names of two or more other persons or, (b) two or more stolen credit cards is presumed to have violated this paragraph.

(2) A person who receives a credit card that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, and who retains possession with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder is guilty of a crime of the fourth degree.

(3) A person other than the issuer who sells a credit card or a person who buys a credit card from a person other than the issuer is guilty of a crime of the fourth degree.

(4) A person who, with intent to defraud the issuer, a person or organization providing money, goods, services or anything else of value, or any other person, obtains control over a credit card as security for debt is guilty of a crime of the fourth degree.

(5) A person who, with intent to defraud a purported issuer, a person or organization providing money, goods, services or anything else of value, or any other person, falsely makes or falsely embosses a purported credit card or utters such a credit card is guilty of a third degree offense. A person other than the purported issuer who possesses two or more credit cards which are falsely made or falsely embossed is presumed to have violated this paragraph. A person falsely makes a credit card when he makes or draws, in whole or in part, a device or instrument which purports to be the credit card of a named issuer but which is not such a credit card because the issuer did not authorize the making or drawing, or alters a credit card which was validly issued. A person falsely embosses a credit card when, without the authorization of the named issuer, he completes a credit card by adding any of the matter, other than the signature of the cardholder, which an issuer requires to appear on the credit card before it can be used by a cardholder.

(6) A person other than the cardholder or a person authorized by him who, with intent to defraud the issuer, or a person or organization providing money, goods, services or anything else of value, or any other person, signs a credit card, is guilty of a crime of the fourth degree. A person who possesses two or more credit cards which are so signed is presumed to have violated this paragraph.

d. Intent of cardholder to defraud; penalties; knowledge of revocation. A person, who, with intent to defraud the issuer, a person or organization providing money, goods, services or anything else of value, or any other person, (1) uses for the purpose of obtaining money, goods, services or anything else of value a credit card obtained or retained in violation of subsection c. of this section or a credit card which he knows is forged, expired or revoked, or (2) obtains money, goods, services or anything else of value by representing without the consent of the cardholder that he is the holder of a specified card or by representing that he is the holder of a card and such card has not in fact been issued, is guilty of a crime of the third degree. Knowledge of revocation shall be presumed to have been received by a cardholder four days after it has been mailed to him at the address set forth on the credit card or at his last known address by registered or certified mail, return receipt requested, and, if the address is more than 500 miles from the place of mailing, by air mail. If the address is located outside the United States, Puerto Rico, the Virgin Islands, the Canal Zone and Canada, notice shall be presumed to have been received 10 days after mailing by registered or certified mail.

e. Intent to defraud by person authorized to furnish money, goods, or services; penalties.

(1) A person who is authorized by an issuer to furnish money, goods, services or anything else of value upon presentation of a credit card by the cardholder, or any agent or employees of such person, who, with intent to defraud the issuer or the cardholder, furnishes money, goods, services or anything else of value upon presentation of a credit card obtained or retained in violation of subsection c. of this section or a credit card which he knows is forged, expired or revoked violates this paragraph and is guilty of a crime of the third degree.

(2) A person who is authorized by an issuer to furnish money, goods, services or anything else of value upon presentation of a credit card by the cardholder, fails to furnish money, goods, services or anything else of value which he represents in writing to the issuer that he has furnished is guilty of a crime of the fourth degree.

f. Incomplete credit cards; intent to complete without consent. A person other than the cardholder possessing two or more incomplete credit cards, with intent to complete them without the consent of the issuer or a person possessing, with knowledge of its character, machinery, plates or any other contrivance designed to reproduce instruments purporting to be the credit cards of an issuer who has not consented to the preparation of such credit cards, is guilty of a crime of the third degree. A credit card is incomplete if part of the matter other than the signature of the cardholder, which an issuer requires to appear on the credit card, before it can be used by a cardholder, has not yet been stamped, embossed, imprinted or written on it.

g. Receiving anything of value knowing or believing that it was obtained in violation of subsection d. of N.J.S.2C:21-6. A person who receives money, goods, services or anything else of value obtained in violation of subsection d. of this section, knowing or believing that it was so obtained is guilty of a crime of the fourth degree. A person who obtains, at a discount price a ticket issued by an airline, railroad, steamship or other transportation company which was acquired in violation of subsection d. of this section without reasonable inquiry to ascertain that the person from whom it was obtained had a legal right to possess it shall be presumed to know that such ticket was acquired under circumstances constituting a violation of subsection d. of this section.

h. Fraudulent use of credit cards.

A person who knowingly uses any counterfeit, fictitious, altered, forged, lost, stolen or fraudulently obtained credit card to obtain money, goods or services, or anything else of value; or who, with unlawful or fraudulent intent, furnishes, acquires, or uses any actual or fictitious credit card, whether alone or together with names of credit cardholders, or other information pertaining to a credit card account in any form, is guilty of a crime of the third degree.

2C:21-32 Short title; definitions relative to counterfeit marks; offenses.


1. a. This act shall be known and may be cited as the New Jersey Trademark Counterfeiting Act.

b.As used in this act:

(1)Counterfeit mark means a spurious mark that is identical with or substantially indistinguishable from a genuine mark that is registered on the principal register in the United States Patent and Trademark Office or registered in the New Jersey Secretary of States office or a spurious mark that is identical with or substantially indistinguishable from the words, names, symbols, emblems, signs, insignias or any combination thereof, of the United States Olympic Committee or the International Olympic Committee; and that is used or is intended to be used on, or in conjunction with, goods or services for which the genuine mark is registered and in use.

(2)Retail value means the counterfeiters regular selling price for the item or service bearing or identified by the counterfeit mark. In the case of items bearing a counterfeit mark which are components of a finished product, the retail value shall be the counterfeiters regular selling price of the finished product on or in which the component would be utilized.

c.A person commits the offense of counterfeiting who, with the intent to deceive or defraud some other person, knowingly manufactures, uses, displays, advertises, distributes, offers for sale, sells, or possesses with intent to sell or distribute within, or in conjunction with commercial activities within New Jersey, any item, or services, bearing, or identified by, a counterfeit mark.

A person who has in his possession or under his control more than 25 items bearing a counterfeit mark shall be presumed to have violated this section.

d. (1) An offense set forth in this act shall be punishable as a crime of the fourth degree if:

the offense involves fewer than 100 items bearing a counterfeit mark;

the offense involves a total retail value of less than $1,000.00 for all items bearing, or services identified by, a counterfeit mark; or
the offense involves a first conviction under this act.
(2)An offense set forth in this act shall be punishable as a crime of the third degree if:
the offense involves 100 or more but fewer than 1,000 items bearing a counterfeit mark;
the offense involves a total retail value of $1,000.00 or more but less than $15,000.00 of all items bearing, or services identified by, a counterfeit mark; or
the offense involves a second conviction under this act.
(3)An offense set forth in this act shall be punishable as a crime of the second degree if:
the offense involves 1,000 or more items bearing a counterfeit mark;
the offense involves a total retail value of $15,000.00 or more of all items bearing, or services identified by a counterfeit mark; or
the offense involves a third or subsequent conviction under this act.
In addition, any person convicted under this act, notwithstanding the provisions of N.J.S.2C:43-3, shall be fined by the court an amount up to threefold the retail value of the items or services involved, providing that the fine imposed shall not exceed the following amounts: for a crime of the fourth degree, $100,000.00; for a crime of the third degree, $250,000.00; and for a crime of the second degree, $500,000.00.
e.All items bearing a counterfeit mark, and all personal property, including but not limited to, any items, objects, tools, machines, equipment, instrumentalities or vehicles of any kind, employed or used in connection with a violation of this act, shall be subject to forfeiture in accordance with the procedures set forth in chapter 64 of Title 2C of the New Jersey Statutes.
f.For purposes of this act:
(1)the quantity or retail value of items or services shall include the aggregate quantity or retail value of all items bearing, or services identified by, every counterfeit mark the defendant manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses;
(2)any State or federal certificate of registration of any intellectual property shall be prima facie evidence of the facts stated therein.
g.Conviction for an offense under this act does not preclude the defendants liability for the civil remedy available pursuant to section 2 of P.L. 1987, c.454 (C.56:3-13.16).

2C:64-1 Property subject to forfeiture.

2C:64-1. Property Subject to Forfeiture.
a.Any interest in the following shall be subject to forfeiture and no property right shall exist in them:
(1)Controlled dangerous substances, firearms which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices, untaxed cigarettes, untaxed special fuel, unlawful sound recordings and audiovisual works and items bearing a counterfeit mark. These shall be designated prima facie contraband.
(2)All property which has been, or is intended to be, utilized in furtherance of an unlawful activity, including, but not limited to, conveyances intended to facilitate the perpetration of illegal acts, or buildings or premises maintained for the purpose of committing offenses against the State.
(3)Property which has become or is intended to become an integral part of illegal activity, including, but not limited to, money which is earmarked for use as financing for an illegal gambling enterprise.
(4)Proceeds of illegal activities, including, but not limited to, property or money obtained as a result of the sale of prima facie contraband as defined by subsection a. (1), proceeds of illegal gambling, prostitution, bribery and extortion.
b.Any article subject to forfeiture under this chapter may be seized by the State or any law enforcement officer as evidence pending a criminal prosecution pursuant to section 2C:64-4 or, when no criminal proceeding is instituted, upon process issued by any court of competent jurisdiction over the property, except that seizure without such process may be made when not inconsistent with the Constitution of this State or the United States, and when
(1)The article is prima facie contraband; or
(2)The property subject to seizure poses an immediate threat to the public health, safety or welfare.
c.For the purposes of this section:
Items bearing a counterfeit mark means items bearing a counterfeit mark as defined in N.J.S.2C:21-32.
Unlawful sound recordings and audiovisual works means sound recordings and audiovisual works as those terms are defined in N.J.S.2C:21-21 which were produced in violation of N.J.S.2C:21-21.
Untaxed special fuel means diesel fuel, No. 2 fuel oil and kerosene on which the motor fuel tax imposed pursuant to R.S.54:39-1 et seq. is not paid that is delivered, possessed, sold or transferred in this State in a manner not authorized pursuant to R.S.54:39-1 et seq. or P.L. 1938, c.163 (C.56:6-1 et seq.).

Criminal Defense

Compiled by Kenneth A. Vercammen, Past Chair NJ State Bar Municipal Court and DWI Section

Our office represents people charged with criminal and disorderly persons offenses. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted of a criminal offense, you face prison, high fines, Probation over 18 months and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal matters. Our website KennethVercammen.com provides information on criminal offenses we can be retained to represent people.

According to the NJ Judiciary Website http://www.judiciary.state.nj.us/criminal/crproc.htm#indictment, the Criminal Division of Superior Court manages criminal complaints from the time they are lodged to their resolution or disposition. The accused, or defendant is charged with an offense as a result of a formal complaint issued by a law enforcement agent or a citizen who believes an offense has been committed against their person or property. It can also result from an indictment by a panel of citizens gathered to consider evidence, called a grand jury. Arrests can occur at the scene of a crime or based on warrants or sworn statements ordering a court appearance. All arrests must be based on probable cause, or reasonable grounds to believe that an offense has been committed, and the defendant may have committed the offense. Complaints state the reasons for the charge, and refer to offenses listed in the New Jersey Code of Criminal Justice (Title 2C) that includes all of the laws against criminal behavior.

Criminal offenses are heard, or considered in Superior Court, and are more serious than non-criminal charges heard in municipal courts where the offense occurred. Defendants found guilty, or convicted of crimes face more serious consequences, with punishments spanning probation supervision and fines to the loss of liberty through confinement for a year or more. Crimes are classified by degree. Degrees range from first to fourth degree offenses. A First degree crime carries the potential penalty of 10-20 years in prison. A Second degree crime carries a potential penalty of 5-10 years. Defendants who are convicted of first and second degree crimes face a presumptive term of incarceration. It is assumed that they will be sentenced to serve time in prison. A Third degree crime may result in 3-5 years if convicted, while Fourth degree crimes carry a potential penalty of up to 18 months in jail. There is a presumption of non-custodial sentences on 3rd and 4th degree offenses.

Complaints heard in municipal courts are disorderly persons offenses or petty disorderly persons violations, which carry less restrictive punishments upon conviction. Disorderly persons offenses may be sentenced to up to 6 months in a county jail. Petty disorderly convictions may render up to 30 days in jail.

First Appearance

Once a complaint is issued, defendants are either arrested or issued a summons or notice to appear in municipal or Superior Court on a first appearance. If they fail to appear, a warrant may be issued for the accuseds arrest by a judge if there is proof of service, or evidence that the accused received the summons or notice and failed to appear. At the first court appearance, defendants are advised of their rights. Their bail is reviewed.

Right To Counsel

At their first appearance defendants are advised of their right to counsel. This means that they are entitled to have an attorney represent them and answer the charges.

In making indigence determinations, Criminal Division staff consider defendants ability to post bail, the amount of bail posted, the willingness of friends and family members to pay for an attorney, and any factor related to a defendants claim of impoverishment. They review tax returns, credit and wage records and any other relevant information regarding the ability of defendants to hire their own attorneys.

Pre-Indictment Events Following the filing of a complaint and the first court appearance, the prosecutors office in each county determines whether to pursue a criminal complaint. Prosecutors determine if cases have merit and sufficient evidence to pursue a conviction. In most counties, the prosecutors Case Screening Unit reviews police reports and interviews victims and witnesses to determine if the original charges will be prosecuted. If there is insufficient evidence, the charges are downgraded to disorderly persons offenses and remanded or sent to the municipal courts for a hearing or dismissed. In some counties, prosecutors pre-screen potential Superior Court filings before a complaint is signed.

The Grand Jury

If a criminal case has not been, downgraded, diverted or dismissed, the prosecutor will present the case to a grand jury for an indictment. The grand jury is composed of a group of citizens who have been selected from voter registration, drivers license and tax lists. The grand jury considers evidence presented by the county prosecutor and determines if there is sufficient evidence to formally charge defendants and require them to respond to the charge(s). An indictment is not a finding of guilt. Generally, neither the accused nor their attorneys are present. Witnesses normally testify regarding the crime. After considering evidence, if a majority of the 23 jurors vote to indict defendants, they must face further criminal proceedings. The return of an indictment is called a true bill. If a majority finds the evidence to be insufficient to indict, the grand jury enters a no bill and the charge(s) are dismissed. The jury may, however, decide to charge defendants with a less serious offense, to be downgraded or remanded to the municipal court. The accused must appear in municipal court to face a disorderly persons or petty disorderly persons charge.

The Indictment Process The grand jury will consider evidence presented by the county prosecutor and determine if there is sufficient evidence to formally charge the defendant and oblige him to respond to the charge(s). The indictment is not a finding of guilt or a conviction. The finding is a true bill that triggers further proceedings in the Criminal Superior Court. If a majority finds the evidence to be insufficient to indict, the grand jury enters a no bill and the charge(s) are dismissed. The jury may, however, decide to charge the defendant with a less serious offense, to be heard in municipal court. In this instance, the offense has been downgraded or remanded. The accused must appear in municipal court to face a disorderly persons or petty disorderly persons charge.

The Pre-Arraignment Conference and The Arraignment

Within twenty-one days of the return of an indictment, a pre-arraignment conference is held. This pre-arraignment conference is scheduled by Criminal Division Staff. Defendants may wish to apply for public defender representation at this point if they are not yet represented. Prior to this conference, discovery or evidence is available to defense counsel. This exchange of evidence provides the defense with an opportunity to review the evidence the prosecution intends to use against the accused prior to the conference. After reviewing the discovery provided prior to the pre arraignment conference, defendants may decide to apply for Pretrial Intervention, or to enter plea bargain negotiations. Defendants may also indicate their intention to plead guilty to the charge for which they were indicted.

Arraignment/Status Conference Standards

A formal arraignment occurs no later than 50 days after an indictment. Upon notification by the Criminal Division, defendants must appear and face formal notification of their charges. They may plead guilty at this point, either to the charges listed in the indictment, or to revised charges resulting from plea negotiations. If plea negotiations are ongoing, the parties may review the status of the plea offer. Defendants may also opt to apply for the Pretrial Intervention program at this juncture, or be admitted into the program if they have not applied prior to arraignment. If a guilty plea is entered at the formal arraignment, Criminal Division judges order a presentence investigation to be conducted by Criminal Division case supervisors. Sentencing will follow the presentence investigation, generally 4 to 6 weeks after convictions. Status Conferences and the Pretrial Conference

Defendants who have pleaded not guilty at this point may continue plea negotiations or preparation for trial. Pretrial case resolutions may occur at a status conference, where a defendant may decide to enter a guilty plea with or without a negotiated plea bargain.

At Pretrial Conferences, defendants may enter a guilty plea to the charges. At the Pretrial Conference, there is a plea cutoff date, after which no further plea negotiations can occur. If no agreement to plead guilty is reached, the matter will proceed to trial. Criminal Division staff track conferences to ensure that cases are moving without undue delays. The Administrative Office of the Courts evaluates statistics entered by Criminal Division staff in each criminal court to stay abreast of overall case movements statewide. The Criminal Practice Division assists local court staff to address backlogs if they should occur.

Conclusion It is well established that the prosecution of a defendant is a criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges. Criminal offenses carry substantial penalties which will effect you for the rest of your life. The space limits of this article do not allow detailed explanation of the extensive caselaw on criminal offenses. Other defenses are explained in greater details in other articles on KennethVercammen.com.

COURT RULE 3:7. INDICTMENT AND ACCUSATION

COURT RULE 3:7. INDICTMENT AND ACCUSATION
3:7-1. Entitling of Papers


The indictment and all subsequent papers in connection therewith shall be entitled in the Superior Court.


Note: Source-R.R. 3:4-1(b).
3:7-2. Use of Indictment or Accusation


A crime punishable by death shall be prosecuted by indictment. Every other crime shall be prosecuted by indictment unless the defendant, after having been advised of the right to indictment, shall waive the right in a signed writing, in which case the defendant may be tried on accusation. Such accusation shall be prepared by the prosecuting attorney and entitled and proceeded upon in the Superior Court. Nothing herein contained, however, shall be construed as limiting the criminal jurisdiction of a municipal court over indictable offenses provided by law and these rules.


Note: Source-R.R. 3:4-2(a)(b). Amended August 28, 1979 to be effective September 1, 1979; amended July 13, 1994 to be effective September 1, 1994.
3:7-3. Nature and Contents of Indictment or Accusation


(a) Nature and Contents Generally. The indictment or accusation shall be a written statement of the essential facts constituting the crime charged, need not contain a formal commencement and shall be signed by the prosecuting attorney. The indictment shall be endorsed as a true bill by the foreperson and conclude: against the peace of this State, the government and dignity of the same. Allegations made in one count of the indictment or accusation may be incorporated by reference in another count. It may be alleged in a single count either that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. An indictment or accusation or any count thereof charging the violation of a statute or statutes shall state the official or customary citation thereof, but error in the citation or its omission shall not be ground for dismissal of the indictment or accusation or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant. Surplusage in the indictment or accusation may be stricken by the court on defendants motion.
(b) Indictment for Murder or Manslaughter. Every indictment for murder shall specify whether the act is murder as defined by N.J.S.A. 2C:11-3(a)(1), (2) or (3) and whether the defendant is alleged: (1) to have committed the act by his or her own conduct or (2) to have procured the commission of the offense by payment or promise of payment, of anything of pecuniary value or (3) to be the leader of a drug trafficking network, as defined in N.J.S.A.2C:35-3, and who, in furtherance of a conspiracy enumerated in N.J.S.A. 2C:35-3, commanded or by threat or promise solicited the commission of the offense. In every indictment for aggravated manslaughter or manslaughter, it is sufficient to charge that the defendant committed aggravated manslaughter or manslaughter contrary to N.J.S.A. 2C:11-4.


Note: Source-R.R. 3:4-3(a)(b)(c), 3:4-4. Paragraphs (a) and (b) amended August 28, 1979 to be effective September 1, 1979; paragraph (b) amended September 28, 1982 to be effective immediately; paragraph (b) amended July 13, 1993 to be effective immediately; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994.
3:7-4. Amendment of Indictment or Accusation


The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.


Note: Source-R.R. 3:4-5. Amended August 28, 1979 to be effective September 1, 1979; amended July 13, 1994 to be effective September 1, 1994.
3:7-5. Bill of Particulars


A bill of particulars shall be ordered by the court if the indictment or accusation is not sufficiently specific to enable the defendant to prepare a defense. The defendant shall move therefore pursuant to Rule 3:10-2. The application shall point out clearly the particulars sought by the defense. The prosecutor shall furnish the bill of particulars within 10 days after the order of the court. Further particulars may be ordered when a demand therefor is promptly made. A bill of particulars may be amended at any time, subject to such conditions as the interest of justice requires. Any particulars that have been furnished to the defendant pursuant to R. 3:13-3 and 4 shall not be subject to an application pursuant to this rule.


Note: Source-R.R. 3:4-6; amended June 29, 1990, to be effective September 4, 1990; amended July 13, 1994 and December 9, 1994, to be effective January 1, 1995.
3:7-6. Joinder of Offenses


Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as providedby R. 3:15-2.


Note: Source-R.R. 3:4-7; amended August 28, 1979 to be effective September 1, 1979.
3:7-7. Joinder of Defendants


Two or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. The disposition of the indictment or accusation as to one or more of several defendants joined in the same indictment or accusation shall not affect the right of the State to proceed against the other defendants. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.


Note: Source-R.R. 3:4-8.
3:7-8. Issuance of Warrant or Summons Upon Indictment or Accusation


Upon the return of an indictment or the filing of an accusation a summons or warrant shall be issued in accordance with R. 3:3-1 by the criminal division manager as designee of the deputy clerk of the Superior Court in the manner provided by law for each defendant named in the indictment or accusation who is not under bail. The criminal division manager as designee of the deputy clerk of the Superior Court, upon request, shall issue more than one warrant or summons for the same defendant. If the defendant fails to appear in response to a summons, a warrant shall issue.
If a summons is issued upon indictment to a defendant who has not been previously held to answer a complaint, the defendant shall undergo all post-arrest identification procedures that are required by law upon arrest, on the return date of the summons, or upon written request of the appropriate law enforcement agency.


Note: Source-R.R. 3:4-9. Amended July 22, 1983 to be effective September 12, 1983; amended July 13, 1994 to be effective January 1, 1995.
3:7-9. Form of Warrant and Summons


The warrant shall contain the name of the defendant or, if the defendants name is unknown, any name or description by which the defendant can be identified with reasonable certainty, shall describe the offense charged in the indictment or accusation and shall command that the defendant be arrested and brought before the court. Conditions of pretrial release shall be fixed by the court and endorsed thereon, and in such case the sheriff or warden may take any bail. The summons shall be in the same form as the warrant except that it shall be directed to thedefendant and require the defendant to appear to plead before the court at a stated time and place. The summons shall also state that if the defendant fails to so appear, a warrant for defendants arrest shall issue.


Note: Source-R.R. 3:4-10(a)(b); amended July 13, 1994 to be effective January 1, 1995.
3:7-10. Execution of Service; Return


(a) Execution of Warrant. The warrant shall be executed in accordance with R. 3:3-3.
(b) Summons to an Individual. The summons shall be served upon an individual in accordance with R. 4:4-4.
(c) Summons to a Corporation. Service of a summons upon a defendant corporation, municipal or otherwise, shall be made in accordance with R. 4:4-4. If the defendant corporation does not appear, the court shall order the clerk to enter an appearance for said corporation and endorse the plea of not guilty on the indictment or accusation, and further proceedings may then be had thereon in the same manner as if the corporation had appeared and so pleaded. A plea to an indictment or accusation by a defendant corporation shall be made by an attorney of this State.
(d) Service Upon a Corporation by Publication. If the summons directed to a corporation is returned not served and it appears to the satisfaction of the court that the summons could not be served, the court shall by order direct the corporation to cause its appearance and plea to be entered by a day certain. A copy of such order shall within 5 days after the date thereof be published in a newspaper in this State once, at least 2 weeks preceding the day certain so specified. If the defendant corporation does not appear within the time specified by the order, the court, if satisfied that publication has been duly made, shall direct the clerk to enter an appearance and a plea of not guilty for the defendant corporation, and thereupon further proceedings may be had on the indictment or accusation as provided by these rules.
(e) Return. The officer executing a warrant shall make prompt return thereof to the court, and at the request of the prosecuting attorney any unexecuted warrant shall be returned and cancelled. The officer serving a summons shall make return thereof on or before the return day. At the request of the prosecuting attorney made at any time while the indictment or accusation is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the clerk to the sheriff or other authorized officer for execution or service.


Note: Source-R.R. 3:4-11, 3:4-12(a)(b), 3:4-13. Paragraph (d) amended July 7, 1971 to be effective September 13, 1971.

Call Kenneth Vercammen and issue for a confidential consultation.

About the Author Kenneth A. Vercammen is a trial attorney in Edison, Middlesex County, New Jersey. He often lectures for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College on personal injury, criminal / municipal court law, and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges. In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, matrimonial hearings, and contested administrative law hearings. Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA. KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030

Criminal Court System


The following contains some pertinent information that might be of help to you as you become involved in the criminal justice system as a victim or witness.

Apprehension and Arrest of the Accused

There are three basic routes a case can take in order to be brought to court: 
  1. Arrest of the accused at the scene of the crime;
  2. Arrest based on a warrant issued by the court in response to a sworn complaint;
  3. Arrest based on indictment by a Grand Jury as the result of its investigation.
In all three instances, the evidence available must show that there is "probable cause" to believe that a crime was committed and that the person to be charged took part in committing the crime.

What is a complaint?

A complaint is a statement of facts about an alleged crime which, when filed in court formally charges a person. Facts about a crime are submitted to the County Prosecutor's Office by a local law enforcement agency. Upon review, if the evidence is deemed sufficient for prosecution, a complaint is filed in the court.

This is the initial stage in the prosecution of a criminal matter. If there is not enough information at this time, no complaint is filed.

What is a Warrant of Arrest?

A warrant of arrest is an order signed by a judge, authorizing the police to arrest a person believed to have committed a serious crime.

Case Review and Filing of Charges by the Prosecutor

Following the arrest of the accused by the Police, the case is presented to the prosecutor. The prosecutor, as the people's representative in our system of criminal justice, has the sole responsibility for determining whether or not charges will be presented to the Grand Jury. The initial processing of the case by the prosecutor is often referred to as "screening". At this stage the case is discussed with police, evidence is reviewed and witnesses are interviewed.

The prosecutor then decides whether to do one or more of the following: 
  1. Charge the accused with the same charge or charges made by the police or used in issuing the arrest warrant.
  2. Increase a given charge to a more serious charge, reduce the charge, or add new charges.
The accused is often charged with more than one criminal offense so the filing of charges with the court can be complex legal procedure. The prosecutor must consider all applicable laws, as well as the decisions of the State and Federal Courts.

If the prosecutor determines there is not sufficient evidence or there is no legal basis for charging the accused with a crime, the case is closed and the accused released.

What Happens to the Accused?

The person accused of the crime is now called the defendant. The defendant will make his/her first appearance before a judge soon after the arrest. The appearance is for the purpose of reviewing the amount set for bail, furnishing the defendant with a copy of the complaint, confirming legal counsel, and setting a date for hearing.

What is the Purpose of Bail?

Bail is set by the court, not by the prosecutor. It is used to assure a defendant's appearance in court. The primary factor considered by the court is whether the defendant is likely to appear for trial. Within that context the court will also take into consideration the defendant's background and the seriousness of the offense charged.

Why Would a Case Get Dismissed?

There are a number of reasons why a criminal case may be dismissed or dropped by the prosecutor or the court before trial. For example, the prosecution may decide probable cause has not been established or the defendant may make full restitution or compensation for property loss. The case may also have to be dismissed because of some technical failure of the evidence, or because the defendant cannot be found or is considered incompetent to stand trial. None of the reasons means that the witness are unimportant or unnecessary, or that their willingness to testify is not appreciated. The presence and willingness of witnesses to testify may be the deciding factor in determining what will be done in the case, particularly in getting the accused to plead guilty.

What If Someone Threatens a Witness To Drop the Charges?

Such a person is obstructing justice and may be committing a crime. Call the law enforcement officer in charge of the case. Police can ask the judge to issue a new warrant, or to revoke the defendant's bail.

What If The Defense Attorney Contacts a Witness About The Case?

You may be asked by the defense attorney to talk to him/her about the case. The witness may refuse or can talk. It is the decision of a witness.

Pleas Of Guilty

The defendant in the case may decide to plead guilty. The plea may only come at the last moment before trial, often because the defendant's attorney is hoping that a witness will not show up, or that the case will be dropped for other reasons.

What Happens In A Trial?

In a trial, the prosecutor presents the case for the State, attempting to prove beyond a reasonable doubt that the defendant did commit the crime as charged. The defendant may present his or her side through the use of an attorney.

What Do the Witnesses Do At The Trial?

As a witness for the State, they have an important part in the trial. They may be questioned by the assistant prosecutor about who they are and what they know about the case. The defendant's attorney may then cross-examine them or question them about their knowledge of the case. They may feel during the questioning that their personal motives are doubted, but the process of cross-examination is not meant as a personal attack upon them. It is to ensure that all sides of the case are told and to establish the truth. Witnesses need NOT be present during the entire trial and will be called only when needed.

GLOSSARY

ARRAIGNMENT- Usually the following actions occur at this court event: The defendant is officially notified of the charges against him/her; the defendant is asked whether he/she pleads innocent or guilty, whether there will be trial demand and whether by jury or a trial by judge, if that is an option; and the terms of the defendant's release pending trial is set.

BAIL- Release on bond. The defendant may be released if he/she has put money or a percentage of a sum of money required by the court, formally charges a person.

COMPLAINT- A statement of facts about an alleged crime which, when filed in court, formally charges a person.

CONTEMPT OF COURT- This is an offense that can occur in one of two ways: (1) disrespect or unacceptable behavior in the presence of the court which can be punished immediately by the judge; or (2) outside the presence of the court the failure to abide by an order of the court in which a hearing will be held and unless the defendant can show cause why he/she should not be held in contempt, he/she will be sentenced.

CONTINUANCE- A postponement of a case for trial or hearing to a later date which usually can be granted only by the court.

CRIMINAL CONDUCT- The New Jersey Code of Criminal Justice, effective September 1, 1979 grades criminal conduct into first, second, third or fourth degree offenses, all requiring an indictment by the Grand Jury and entitling the defendant to a trial by jury. These offenses were previously referred to in New Jersey as misdemeanors and high misdemeanors or as misdemeanors and felonies in other jurisdictions.

DEFENDANT- A person formally accused of a crime.

DISMISSAL- The dropping of a case by a judge sometimes at the request of the prosecutor.

DISORDERLY PERSON OFFENSE- A minor violation of the law for which a person may be jailed for no more than six months, does not require a Grand Jury indictment and is ordinarily tried in the municipal court without a jury. This class of offense is New Jersey's equivalent of what are commonly referred to as "misdemeanors" in other jurisdictions.

GRAND JURY- A body of 23 citizens which hears evidence presented by the prosecutor to determine whether there is enough evidence to justify an indictment.

INDICTMENT- A formal criminal charge made by a Grand Jury after considering evidence presented by the prosecutor. Also called a True Bill.

NO BILL- A determination by the Grand Jury that the evidence presented by the prosecution is not sufficient to justify an indictment.

OBSTRUCTION OF JUSTICE- The use of force or threat of force to influence or intimidate a juror or witness. Under N.J.'s new criminal code obstruction of justice will also be referred to as "hindering apprehension or prosecution" and carries a severe penalty.

PAROLE- The early release under conditions of supervision of a person who has been convicted of a crime, sentenced to prison and has served some of that sentence.

PERJURY- Deliberate lying under oath. Perjury is a crime of the third degree punishable by a severe penalty.

PETIT OR PETTY JURY- A jury that hears the evidence presented by both prosecution and defense at a trial, comes to a decision concerning the facts and presents a verdict of guilty or not guilty.

PERSONAL RECOGNIZANCE- The method by which an arrested person is released on his/her word that he/she will return at the designated time for further court appearance.

PLEA- When the defendant is asked by the judge whether he/she wishes to admit guilt or to deny it and go to trial on the charges. The answer is the plea which may be either guilty or not guilty.

PLEA BARGAINING- A necessary aspect of the criminal justice process which promotes the speedy disposition of cases without the necessity of trial. Usually, the defendant will plead guilty to SOME of the charges with the prosecutor often recommending a certain sentence and/or the dismissal of other charges. The goal of the prosecutor in plea bargaining is to try to achieve approximately the same result as would have occurred if the defendant had been convicted after trial.

PROBATION- The release under "good behavior" of a person convicted of a crime as an alternative to imprisonment.

SUBPOENA AD TESTIFICANDUM- A written official summons to appear in court to give testimony under possible penalty of law for failure to appear.

SUBPOENA DUCES TECUM- subpoena that directs the witness to bring to court certain named documents or other evidence.

TRUE BILL- A formal criminal charge made by a Grand Jury after considering evidence presented by the prosecutor. Also called an indictment.

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

Friday, February 22, 2019

Criminal Arrest Defense

CRIMINAL & MUNICIPAL COURT DEFENSE Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a Criminal or Municipal Court matter.

Representation/ What We will do for you. We will review and research necessary statutes and caselaw, contact the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services on the charges you provided us at the initial consultation. At all times we will seek to achieve solutions which are just and reasonable for you. 1. Telephone consultation with client; 2. Office consultation with client; 3. Offer sound legal advice to client, plus access to our legal info website KennethVercammen.com 4. Preparation of letter of representation to Court; 5. Preparation of letter of representation to Prosecutor; 6. Preparation of statement to provide legal services; 7. Copies of all correspondence to Court and Prosecutor to client; 8. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure; 9. Review of necessary statutes and case law; 10. Follow up with Prosecutor for discovery if suspension or jail is likely; 11. Prepare defense and mitigating factors; 12. Miscellaneous correspondence, preparation and drafting of pleadings and legal documents in contested serious cases; 13. Review documents supplied by client and court; 14. Travel to Court; 15. Negotiations with the Prosecutor and Representation in Municipal Court. 16. Preparation of End of Case Letter and client questionnaire. 17. Free Brochures provided on other legal topics such as Worker's Comp, Wills, Personal Injury 18. Free subscription to monthly e-mail newsletter. Provide your email address. 19. Follow up telephone advice [If you call, provide the specific questions with the message]. 20. Invitation to client seminars and Community events via email. 21. Hold and maintain file for seven years in storage as free client service. 22. Free Magnet, Pen, T- shirt, soda/ beer mug, foam soda can holder and estate planning book. Please ask Ken V or staff upon retaining the office. The legal work includes research, correspondence, preparation and drafting of pleadings or other legal documents, conferences in person and by telephone with you and with others, dictating and reviewing letters, negotiations, and any other related work or service to properly represent you in this matter. The Law Firm will provide legal representation through an attorney who is licensed to practice law in New Jersey.

2. Your Responsibility- Please read carefully and follow instructions to help us help you

-After you have retained [paid] your attorney, call the court, plead not guilty and give the court the name of your attorney. In traffic matters, we highly recommend you contact DMV, now Motor Vehicle Commission, and obtain a driver's license abstract. 888-486-3339 or 609-292-6500. This will help you when we go to court. You must fully cooperate with the Law Firm and provide all information relevant to the issues involved in this matter. You must fill out the Interview Sheet accurately. If you do not provide accurate information to the court and our law office, you may expose yourself to a higher DMV surcharge assessment. You must also provide details on what you told the police.

-You should call the Court or Law Office 24 hours before all hearings and court appearances to confirm the case has not been adjourned.

3. Going to Court- You must bring all your original papers and entire file of all documents and letters you have received from our office, the Court, insurance companies and the DMV/ MVC connected to your case whenever you come to the law office, to court, or other appearances where both you and your attorney will be present. When you arrive, please check in. Hearing times are often delayed. If by chance the attorney in my office handling the hearing is not at the hearing room when you arrive, please do not panic. We will soon arrive to handle the case. We often travel from another court. Please remain in the courtroom/hearing room until we arrive, if possible. Usually we will go to speak directly with the Prosecutor or Court Clerk prior to going into the courtroom. In municipal court/traffic cases, we recommend our clients not speak with the Prosecutor but rather wait for your attorney to arrive. If you will have to pay court costs or a fine, bring a checkbook or cash. Most towns and state agencies still do not accept credit cards. Do not leave the court and go home until instructed by Mr. Vercammen or a member of our staff. 4. You must notify the Law Office and the court immediately if your address or phone numbers change. 5. Under the NJ Rules of Professional Conduct and Court Rules, we cannot send a letter of representation to the court until the Retainer is paid in full. All fees and requirements under this written retainer agreement and any other written documents must be complied with. You must also pay all bills as required by this Agreement. If you do not comply with these requirements, the Law Firm will not represent you. Failure to comply with all requirements shall permit the law office to withdraw its offer of representation. We always charge a fee of between $50 - $100 for bad checks.

6 Other Legal Services. We provide representation only on the charges/tickets/offenses you provided to us at the initial consultation. The Law Firm does not guarantee Kenneth Vercammen will be the trial attorney. You and the Law Firm may make additional agreements to provide for legal services not covered by the Agreement. Without such agreements, the Law Firm is not required to do any additional work or any of the following: (a) Provide any legal services after appearance at the trial court; (b) File any Motions or Briefs not set forth on page 1 (c) Appeal any decisions of the trial court or make additional appearances after appearing in Court; (d) provide other legal services or advice not listed on page 1; or (e) Represent you in any other court or Tribunal

Criminal Appeals

Motor vehicle violations and criminal charges can cost you. You may have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. Division of Motor Vehicles or have your license suspended. It is usually best to hire an experienced attorney to represent you for motor vehicle violations. The trial in a Municipal Court is held in front of a Municipal Court Judge, and no jury trial is permitted. The Judge is ordinarily selected by the Town Mayor and Council. The appointment sometimes is based upon input from the Police Chief, PBA and local political organization. If after your trial you are unhappy with the decision and the suspension is excessive, you should hire an experienced attorney for the appeal. There is only twenty days for your attorney to properly prepare the papers and appeal. On appeal, the Judge only reads a transcript and looks at exhibits. There is no new testimony and the appeal judge is bound by the fact finding below, according to State v Lutz 309 N.J. Super. 317 (App. Div. 1998). The following are some of the Court Rules you and your attorney must comply with.

Appeal; How Taken; Time Rule 3:23-2

Appeals from judgments of conviction in the municipal court shall be taken in accordance with R. 3:23 and 3:24, The defendant's attorney must file a notice of appeal with the municipal court within 20 days after the entry of judgment. Within 5 days after the filing of the notice of appeal, one copy thereof shall be served upon the prosecuting attorney, , and one copy thereof shall be filed with the county clerk together with the filing fee and an affidavit of timely filing of said notice with the clerk of court and service upon the prosecuting attorney. On failure to comply with each of the foregoing requirements, the appeal shall be dismissed by the Superior Court, Law Division without further notice or hearing.

Notice of Appeal; Contents 3:23-3.

The notice of appeal shall set forth 1. the title of the action; 2. the name and the address of the appellant and appellant's attorney, 3. a general statement of the nature of the offense; 4. the date of the judgment; 5. the sentence imposed; 6. whether the defendant is in custody; 7. if a fine was imposed; 8 whether the fine was paid or suspended; and 9 the name of the court from which the appeal is taken.

There shall be included in the Notice of Appeal a statement as to whether or not a stenographic record or sound recording was made pursuant to R. 7:8-8 in the court from which the appeal is taken. Where a verbatim record of the proceeding was taken, the Notice of Appeal shall also contain the attorney's certification of compliance with R. 2:5-3(a) (request for transcript) and R. 2:5-3(d) (deposit for transcript) or certification of the filing and service of a motion for abbreviation of transcript pursuant to R. 2:5-3(c).

Duties of Clerk of the Trial Court and Superior Court, Law Division 3:23-4.

(a) Preparation of Transcript. Upon the filing of the notice of appeal, the clerk of the court below shall forthwith deliver to the county clerk the complaint, the judgment of conviction, the exhibits retained by the clerk, and a transcript of the entire docket in the action, and the county clerk shall deliver copies thereof to the prosecuting attorney on request.

(b) Docketing; Hearing Date. Upon the filing of a copy of the notice of appeal, the affidavit and the payment of the filing fees, as provided by R. 3:23-2, the county clerk shall docket the appeal and shall thereafter fix a date for the hearing of the appeal and mail written notice thereof to the prosecuting attorney and the appellant, or, if the appellant is represented, the appellant's attorney.

Stay of Penalties Rule 7:13-2.

A sentence to pay a fine, a fine and costs, a forfeiture, an order for probation, or a revocation of the license to operate a motor vehicle may be stayed by the court in which the conviction was had or to which the appeal is taken on such terms as the court deems appropriate.

Relief Pending Appeal Rule 3:23-5.

(a) Relief From Custodial Sentence. If a custodial sentence (jail) has been imposed, and an appeal from the judgment of conviction has been taken, the defendant shall be admitted to bail by a judge of the Superior Court in accordance with the standards set forth in R. 3:26-1a.

(b) Relief From Fine. A sentence to pay a fine, a fine and costs, or a forfeiture may be stayed by the court in which the conviction was had or to which the appeal is taken upon such terms as the court deems appropriate.

(c) Relief From Order for Probation. An order for probation may be stayed if an appeal is taken.

Hearing on Appeal Rule 3:23-8.

(a) Plenary Hearing; Hearing on Record; Correction or Supplementation of Record; If a verbatim record or sound recording was made pursuant to R. 7:8-8 in the court from which the appeal is taken, the original transcript thereof duly certified as correct shall be filed by the clerk of the court below with the county clerk, and a certified copy served on the prosecuting attorney by the clerk of the court below within 20 days after the filing of the notice of appeal or within such extension of time as the court permits. In such cases the trial of the appeal shall be heard de novo on the record unless it shall appear that the rights of either party may be prejudiced by a substantially unintelligible record or that the rights of defendant were prejudiced below in which event the court to which the appeal has been taken may either reverse and remand for a new trial or conduct a plenary trial de novo without a jury. The court shall provide the municipal court with reasons for the remand. The court may also supplement the record and admit additional testimony whenever : 1) the municipal court erred in excluding evidence offered by the defendant, (2) the state offers rebuttal evidence to discredit supplementary evidence admitted hereunder, or (3) the record being reviewed is partially unintelligible or defective.

Rule 3:23-8 (b) Briefs. Briefs shall be required only if questions of law are involved on the appeal or if ordered by the court and shall be filed and served prior to the date fixed for hearing or such other date as the court fixes. (It is better for the defense to prepare a brief with applicable cases and statutes to assist the Judge who handles the de novo appeal)

(c) Waiver; Exception. The appeal shall operate as a waiver of all defects in the record including any defect in, or the absence of, any process or charge laid in the complaint, and as a consent that the court may, during or before the hearing of the appeal, amend the complaint by making the charge more specific, definite or certain, or in any other manner, including the substitution of any charge growing out of the act or acts complained of or the surrounding circumstances of which the court from whose judgment or sentence the appeal is taken had jurisdiction, except that if the appeal is from a conviction for an indictable offense, the appeal shall not operate as a consent that the complaint may be amended so as to charge such an offense or a new or different indictable offense, unless the defendant agrees to such amendment.

(d) Defenses Which Must Be Raised Before Trial. The defenses of double jeopardy, lack of jurisdiction in the court, failure of the complaint to charge an offense, the unconstitutionality of the statute, regulation promulgated pursuant to statute or ordinance under which the complaint is made and all other defenses and objections based on defects in the institution of the prosecution or in the complaint must be raised by motion and determined in accordance with R. 3:10.

(e) Disposition by Superior Court, Law Division. If the defendant is convicted, the court shall impose sentence as provided by law. If the defendant is acquitted, the court shall order the defendant discharged, the conviction in the court below set aside, and the return of all fines and costs paid by the defendant. An appropriate judgment shall be entered and a copy thereof transmitted to the court below.

Conclusion

If someone is going to appeal a conviction by the Municipal Court Judge, they need to immediately file all the necessary appeal papers, Certifications and briefs. Occasionally, the County Prosecutor's office may even negotiate a plea bargain to a lesser offense with your attorney if permitted under the law. When your driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Please call us if you need experienced legal representation in a traffic/municipal court matter.

Criminal and Traffic Cases Decided by NJ Courts

Selected by Kenneth Vercammen, Esq.

1.  Defendant does not have burden to prove discrimination in stop . State v. Segars 172 NJ 481 (2002). The Municipal Court of Ridgewood erred in ruling that the defendant in this case, who was charged with operating a motor vehicle while his driving privileges were suspended, failed to sustain his burden of proving discriminatory targeting on the part of the officer, who ran a Mobile Data Terminal check on the defendant?s license plate.

2.  Phone call creates Jurisdiction in DV.  A.R. v. M.R. 351 NJ Super. 512 (App Div. 2002)    The New Jersey courts may exercise personal jurisdiction over a defendant who subjected his victim to domestic violence in another state, threatened to pursue her if she left him, and attempted to contact her in New Jersey by telephone when she came here for safety.   Source: 11 NJL 1259

3.  Stalking can be putting secret camera in estranged wife?s 
bedroom. H.E.S. v. J.C.S.  ___ NJ Super. __ (App Div. A-719-00T3, Decided March 21, 2002).    Plaintiff?s proof regarding the hidden surveillance equipment in her bedroom does not satisfy the elements of harassment because it does not establish that the defendant had the purpose to harass and to alarm or seriously annoy her;  however, it does establish the predicate offense of stalking because it constitutes a course of conduct that would cause a reasonable person to fear bodily injury, and the trial judge properly entered the final restraining order based on the predicate offense.  Source: 268 NJL 49

4.   Sup MT granted where DV hearing officer did not take details. State v. Johnson 352 NJ Super. 15 (App Div. 2002).    Since the purpose of a search warrant issued pursuant to N.J.S.A. 2C:25-28j is to protect the victim of domestic violence from further violence, not to discover evidence of criminality, ?reasonable cause,? as opposed to ?probable cause,? is the barometer by which the appropriateness of it?s issuance is to be judged; the judge must find reasonable cause to believe that: (1) the defendant has committed an act of domestic violence; (2) he possesses or has access to a firearm or other weapon delineated in N.J.S.A. 2C:39-1r; and that (3) his possession or access to the weapon poses a heightened risk of injury to the victim-- additionally, a description of the weapon and its believed location must be reasonably specified in the warrant.  In this case, although there may have been sufficient facts and information available to satisfy the reasonable-cause requirements outlined here, the procedures were insufficient to establish their existence in the record; plaintiff testified before the Domestic Violence Hearing Officer (DVHO), not the Family Part Judge, who received no written summary, transcript or affidavit that would enable an analysis of whether there was reasonable cause to believe that defendant, her husband, had access to a handgun and, if so, whether that access posed a danger or heightened risk of injury to plaintiff, and the judge did not ?state with specificity the reasons for and scope of the search and seizure authorized by the order,? N.J.S.A.  2C:25-28j;   even in the record before the DVHO there is an absence of any testimony by plaintiff that she was in fear of defendant or, more particularly,  that his access to a weapon created additional risk of harm to her;  accordingly, the Law Division properly granted defendant?s motion to suppress the marijuana that the police found in his bedroom pursuant to the search (which revealed no gun).   Source: 168 N.J.L.J. 1295

5.  School can?t require drug testing of chess club students.   Joye v. Hunterdon Central 353 NJ Super. 600 (App Div. 2002).    The United States Supreme Court held in Earls that the random testing of students involved in extracurricular activities does not violate a privacy interest recognized by the Federal Constitution, and, in the absence of any support in the history, language, or intent of the New Jersey Constitution, there is no basis for concluding that it warrants a different approach; because the parties? briefs developed only constitutional issues, the matter is remanded to permit plaintiffs to proceed on any ground not reached by the trial judge, who should also consider inviting the Attorney General to participate in deciding whether a local board of education has the authority to implement drug testing in the absence of legislation permitting it or statewide standards promulgated by the Legislature or the Department of Education.  Source: 169 N.J.L.J. 745 

6.  4th Amendment does not require police to advise bus passenger of right to refuse search.  US v. Drayton ___ US __(US Supreme Court, No. 01-631, Decided June 17, 2002).                     The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches.  Fourth Amendment permits officers to approach bus passengers at random to ask questions and request their consent to searches, provided a reasonable person would feel free to decline the requests or otherwise terminate the encounter, id. at 436.  The court identified as ?partially worth noting? the factors that the officer, although obviously armed, did not unholster his gun or use it in a threatening way, and that he advised respondent passenger that he could refuse consent to a search.  Relying on this last factor, the Eleventh Circuit erroneously adopted what is in effect a per se rule that evidence obtained during suspicionless drug interdictions on buses must be kept suppressed unless the officers have advised passengers of their right not to cooperate and to refuse consent to a search.    Source: 168 N.J.L.J. 1272

7. Exigent circumstances required private warrantless search of home.  Kirk v. Louisiana ___ US __ (US Supreme Court, No. 01-8419, Decided June 24, 2002).              Court of Appeals? conclusion that warrantless search of a home was constitutional, without deciding whether exigent circumstances were present, violates Us v. Payton doctrine that the ?firm line at the entrance to the house...may not reasonably be searched without a warrant.?   Source: 169 N.J.L.J. 236

8.   Eviction permitted in public housing if family member engages in drug activity.   Dept. of Housing v. Rucker ___ US __(US Supreme Court, No. 00-1770, Decided March 26, 2002).    Statute?s plain language unambiguously requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of the drug-related activity.      Source: 168 N.J.L.J. 58

9.  Expert testing found unreliable regarding police interrogation.  State v. Free 351 NJ Super. 205 (App Div. 2002).     The premises of defendant?s expert,  a social psychologist,   about the effects in general of police interrogation techniques on the credibility of confessions have not gained general acceptance in other jurisdictions and, therefore,   the expert opinions offered in his report are inadmissible as not scientifically reliable,  and the trial court erred in admitting them; also,  the proposed evidence failed to satisfy N.J.R.E. 702?s requirement that the nature of offered expert testimony must be such as ?will assist trier of fact to understand the evidence or to determine a fact in issue.? Source:  168 N.J.L.J. 69

10.   Civil- No reliable scientific foundation that low impact cannot cause herniated disk.  Suanez v. Egeland 353 NJ Super. 191 (App Div. A-3302-00T1, Decided July 11, 2002).    There is no reliable scientific foundation for a purported expert opinion testimony by a biomechanical engineer that a low-impact automobile accident cannot cause a herniated disk.

11. Evidence suppress where entry unjustified.  State v. Lashley 353 NJ Super. 405 (App Div. 2002).    The evidence must be suppressed and the convictions based on it reversed here, where cocaine and packaging paraphernalia were observed by the police upon their warrantless entry of defendant?s dwelling, which was not only unlawful in the absence of both probable cause and exigent circumstances but was unannounced and accomplished with the aid of a steel ram, a method of entry unjustified in the record; the subsequent application for a search warrant referred to the earlier observations, and the warrant, pursuant to which additional evidence was seized, must be invalidated under the State Constitution, if not the Federal, because of the unlawful warrantless forced entry; Chaney is distinguished.  Source:  169 N.J.L.J. 557

New law-    DWI  S of L moved to 90 days.  P.L. 2002, c.57     Extends time to file complaint for drunk driving from 30 to 90 days.

Court Would Not Permit Attack on Old Guilty Plea Based on Adequacy of Factual Basis for 2001 Guilty Plea; State v. Mitchell 373 NJ Super. ___ (App. Div. 2005)

Court Would Not Permit Attack on Old Guilty Plea Based on Adequacy of Factual Basis for 2001 Guilty Plea
State v. Mitchell 373 NJ Super. ___
(App. Div. 2005).


Where a 2001 judgment of conviction included suspension of imposition of sentence, and where in 2003 the court granted a petition to revoke the suspended sentence and imposed a prison term on defendant for the crime to which he had entered his guilty plea in 2001, neither the adequacy of the factual basis set forth on the record in 2001 nor the asserted mental status of defendant at the time of the plea in 2001 could be raised as a basis to attack the imposition of the sentence in 2003. 


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