DEFENSE OF PERSONAL PROPERTY model jury charge 2C:3‑6c

JUSTIFICATION - SELF DEFENSEUSE OF FORCE IN DEFENSE OF PERSONAL PROPERTY model jury charge(N.J.S.A. 2C:3-6c)

The State claims that the defendant illegally used force against the victim in this case.The defendant, on the other hand, claims that he/she had a justifiable right to use the level of force he/she did use to protect his/her personal property.Personal property is defined as tangible items other than real estate consisting of things that are moveable, temporary or consumable in nature, commonly known in the law as chattels.

In other words what the State alleges as an illegal assault, the defense characterizes as a justifiable legal defense of defendants personal property or personalty.

The law recognizes that a person cannot use deadly force to protect personal property, but can only use a non-deadly level of force upon another person when he/she reasonably believes it necessary to prevent that other person from attempting to commit a theft criminal mischief or other criminal interference with personal property in the defendants possession or in the possession of another for whose protection the defendant reasonably believes he/she is acting.

Remember that deadly force cannot be used by a person protecting his/her own personal property or that of another (unless justified for some other lawful purposes other than the protection of personal property such as self-protection of his/her physical well-being or protection of another person, or the protection of his/her premises).

Our law defines deadly force as force used with the purpose of causing death or serious bodily harm or which the user knows can create a substantial risk of death or serious bodily harm.Serious bodily harm is an injury which creates a substantial risk of death, or which causes serious, permanent disfigurement, or which causes the protracted loss or impairment of the function of any part of the body.Shooting a firearm at somebody, or even at a place where the shooter believes somebody to be, is deadly force.However, pointing or otherwise brandishing a weapon is not deadly force, so long as there is no actual purpose to use the weapon.

The other level of force which a defendant may be entitled to use with limitations about which I shall instruct you is called non-deadly force.To understand this term you should think of this force as any violence, compulsion or constraint executed against a person short of force that poses a threat of causing death or serious bodily harm.It will be your function to decide what level of force was used.If deadly force was used, then this defense fails.If non-deadly force was employed, then you must determine if it was used properly so as to justify the acts of the defendant.

A person has the right to use non-deadly force to protect personal property if three conditions exist:

1.The person is in possession or control of personal property lawfully belonging to him/her or if his/her personal property is in possession of another, he/she is acting to protect that persons lawful possessions, and

2.The person reasonably believes he/she has to use force. [A belief is reasonable if a person of ordinary prudence and intelligence, in the circumstances of this defendant, would hold it.], and

3.The force has to be used and he/she must reasonably believe it is used to prevent or end the commission or attempted commission of a theft, criminal mischief or other criminal interference with personal property.

Therefore, when you consider the defendants right to use non-deadly force, you must first determine if these three conditions existed.If they did not, you should go no further, because the defendant had no legal right to resort to any force.If you find that these conditions did exist, the use of force in defense of ones personal property is limited.

One limitation requires that the defendant request the actor to desist.This limitation requires the user of force first to ask the target of the force to stop or end his/her criminal activity.
The user of force does not have to make this request, however, if he/she reasonably believes:

1.The request would be useless, or

2.Making the request would be dangerous to the would-be requester or anybody else, or

3.Before the request can be effectively made, substantial harm will be done to the physical condition of the personal property.

It is up to you to decide whether or not this limitation on the use of force to protect personal property, the request to desist, applies.If you find that it does and the defendant failed to make such a request, then the defense fails.

[USE THE FOLLOWING IF THE FACTS APPLY]

If, however, you find that this limitation does not apply, then you must examine another limitation.
To protect personalty, the defendant user of force cannot use that force to eject a trespasser, if defendant knows that the trespasser, when ejected, will be exposed to a substantial danger of serious bodily harm.

If you conclude that no limitation applies to restrict this defendants use of force, then you should find the defendant not guilty.If on the other hand, you have found beyond a reasonable doubt that a limitation does apply to the facts of this case, then the defense fails.
Always remember that the State maintains the burden of proving beyond a reasonable doubt that this defense is not justified under the facts of this case.

Motions in Child Support, Divorce and Family Actions in New Jersey

By Kenneth Vercammen, Esq. Child support is usually determined through a formal court order. Child support orders, wage withholding, and other Court Orders usually continue forever until a Superior Court Judge signs a Formal Court Order modifying the prior Order. For example, in child support issues, even if a divorce decree states support ends when the child ends full time school, child support does not automatically end. A new Motion must be filed in the Superior Court. It is not sufficient for you to simply wait for a child to finish school. Motions are required to terminate alimony or change any prior court order or divorce decree. Many Divorce decrees and Property Settlement Agreements state that child support will end upon emancipation. For example, the term "emancipation" is sometimes defined as follows: (i) The completion of the child's formal education on a matriculated basis, whether it be graduation from a four year undergraduate school or high school, it being understood that so long as the child is diligently pursuing his formal education through a four year undergraduate college education and obtaining passing grades the child shall not be considered emancipated. (ii) Upon the completion of any of the aforesaid segments of the child's education, and upon the failure to commence the next segment of his education, or upon leaving school, the child shall be deemed emancipated unless failure to continue on with his education has resulted from injury or illness or some other cause beyond the child's control. (iii) The marriage of the child. (iv) Entry into the military or armed forces by the child. Your attorney can draft the appropriate Motion to terminate child support if the child is emancipated. You will need to provide your attorney with relevant papers including a copy of the Final Judgment for Divorce, any other Child Support Orders, copy of birth certificate if available, proof of graduation from school or working full time, etc. Sometimes the child support recipient, usually the mother, will sign a Consent Order which your attorney can file without the need for a detailed hearing. However, generally a Formal written Notice of Motion must be filed in the County Superior Court where the child support Order was entered. The requirements of the Motion are detailed and must include the correct filing fees. Child support does not end merely if the child reaches 18 and graduates high school. Most child support Orders continue child support if the child is in college full time. However, don't give up. In the unreported Appellate Division decision of Kozak v Kozak __ NJ Super. __ (App. Div. decided January 9, 2003) the court reduced child support during the period of time the child resided at the college campus. The judge determined it was appropriate to calculate child support only for the period of time the child was not residing at college. The following is a portion of the NJ Court Rules which apply to all family motions. 5:5-4. Motions in Family Actions (a) Motions. Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions. When a motion is brought for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion. When a motion is brought for the modification of an order or judgment for alimony or child support, the pleading filed in support of the motion shall have appended to it a copy of the prior Case Information Statement or Statements filed before entry of the order or judgment sought to be modified and a copy of a current Case Information Statement. (b) Page Limits. Unless the court otherwise permits for good cause shown and except for the certification required by R. 4:42-9(b) (affidavit of service), a certification in support of a motion shall not exceed fifteen pages. A certification in opposition to a motion or in support of a cross-motion or both shall not exceed twenty-five pages. A reply certification to opposing pleadings shall not exceed ten pages. (c) Time for Service and Filing. A notice of motion, except for motions brought pursuant to R. 1:10-3 and motions involving the status of a child, filed more than 45 days after the entry of the written judgment of divorce or annulment, other than an ex parte motion, shall be served and filed, together with supporting affidavits and briefs, when necessary, not later than 29 days before the time specified for the return date. For example, a motion must be served and filed on the Thursday for a motion date falling on a Friday 29 days later. Any opposing affidavits, cross-motions or objections shall be served and filed not later than 15 days before the return date. For example, a response must be served and filed on a Thursday for a motion date falling on a Friday 15 days later. Answers or responses to any opposing affidavits and cross-motions shall be served and filed not later than 8 days before the return date. For example, such papers would have to be served and filed on a Thursday for a motion date falling on the Friday of the following week. If service is made by mail, 3 days shall be added to the above time periods. (d) Advance Notice. Every motion shall include the following language: NOTICE TO LITIGANTS: IF YOU WANT TO RESPOND TO THIS MOTION YOU MUST DO SO IN WRITING. This written response shall be by affidavit or certification. (Affidavits and certifications are documents filed with the court. In either document the person signing it swears to its truth and acknowledges that they are aware that they can be punished for not filing a true statement with the court. Affidavits are notarized and certifications are not.) If you would also like to submit your own separate requests in a motion to the judge you can do so by filing a cross-motion. Your response and/or cross-motion may ask for oral argument. That means you can ask to appear before the court to explain your position. However, you must submit a written response even if you request oral argument. Any papers you send to the court must be sent to the opposing side, either to the attorney if the opposing party is represented by one, or to the other party if they represent themselves. The response and/or cross-motion must be submitted to the court by a certain date. All pre-divorce motions, all enforcement motions (also known as motions for enforcement of litigants' rights, R. 1:10-3), or motions that deal with the status of children must be filed 16 days before the return date. (Since most motion days are on a Friday, motion papers must be filed on the Wednesday 16 days before.) Therefore, a response and/or cross motion must be filed eight days (Thursday) before the return date. All post-judgment motions, including all motions for modification of alimony, child support, custody, or parenting time/visitation must be filed 29 days (Thursday) before the (Friday) return date. Therefore, a response and/or cross-motion must be filed 15 days (Thursday) before the return date. If you mail in your papers you must add three days to the above time periods. Response to motion papers sent to the court are to be sent to the following address: ______________. Call the Family Division Manager's office (_______) if you have any questions on how to file a motion, cross-motion or any response papers. Please note that the Family Division Manager's office cannot give you legal advice. (e) Tentative Decisions. In any Family Part motion scheduled for oral argument pursuant to this rule, the motion judge prior to the motion date may tentatively decide the matter on the basis of the motion papers, posting the tentative decision and making it available to the parties. After such tentative decision has been made, unless either party renews the request for oral argument, that request shall be deemed withdrawn and the tentative decision shall become final and shall be set forth in an appropriate order. If, however, either party renews the request for oral argument, the motion shall be argued as scheduled. This tentative motion decision process shall be subject to the general supervision of the Family Presiding Judge of the vicinage. (f) Orders on Family Part Motions. Absent good cause to the contrary, a written order shall be entered at the conclusion of each motion hearing. Hire an experienced attorney when you have important legal needs. Typical fees for the Motion range between $1,500- $4,500 depending on work involved and experience level of the attorney. The following is a portion of the additional information your attorney will need to draft a Motion: 1. Your Full Name: ________________________________ First Name _________________________________ Last Name 2. Your Street Adress: ___________________________________________________________________ ______________________________ City _______________ State _______________ Zip Code 3. Telephone Number: ______________________________ Cell ______________________________ Day ______________________________ Night 4. Email Address: _____________________________________________________________ 5. (a)Referred by: _____________________________________________________________ 6. Your Date of Birth: ________________________________ Month/Day/Year Your Social Security Number ________________________________ 7. Date of Marriage, if any 8. Other Parent: ________________________________ First Name _________________________________ Last Name 9. Street Adress: ___________________________________________________________________ ______________________________ City _______________ State _______________ Zip Code 10. Name, Address, & Birthdate of all Child(ren); Person with whom Child(ren) reside with: ________________________________ Child's Full Name ________________________________ Child's Full Name ________________________________ Child's Full Name ________________________________ Child's Full Name ________________________________ Address ________________________________ Address ________________________________ Address ________________________________ Address _______________ Birthdate _______________ Birthdate _______________ Birthdate _______________ Birthdate ________________________ Reside With ________________________ Reside With ________________________ Reside With ________________________ Reside With MISCELLANEOUS INFORMATION: 1. Name and Address of Your Employer (Provide Name and Address of Company if Self- Employed) Name of Employer _______________________________ Address ___________________________ BRIEF DESCRIPTION OF SPECIFIC PROBLEMS OR CONCERN_____________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________ _____________________________________________________________________________________________________________

Defense of Drug Charges in New Jersey

Kenneth Vercammen has defended individuals charged with drug offenses in both Superior Court and Municipal Court. The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses: NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:35-10(b), using or being under the influence of CDS; NJSA 2C:35-10(c), failure to deliver CDS to police; NJSA 2C:36-2, possession of drug paraphernalia Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed. Moreover, the court must suspend the defendants drivers license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed. If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge. CONDITIONAL DISCHARGE New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted supervisory treatment under 24:21-27, 2C:43-12 or 2C: 36A-l may apply for a conditional discharge. The court upon notice to the prosecutor and subject to 2C: 36A-l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a conditional discharge is optional to the court, you should be prepared to prove, through letters, documents, or even witnesses, that the defendants continued presence in the community or in a civil treatment program, will not pose a danger to the community. You should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendants drivers license between six months and two years. The conditional discharge period is also between six months and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory. SUPPRESSION MOTION A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5-7. The court rules have been amended to provide the Suppression Motion can be held directly in the Municipal Court. Your attorney can subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is very important. PRE-TRIAL The Municipal Court prosecutor is responsible for providing discovery. Rules 3:13-3, 7:4-2, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990). The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35-19. If the State intends to introduce the lab certificate at the trial, a notice of an intent to proffer that certificate and all reports relating to the analysis of the CDS shall be served on defense counsel at least 20 days before the proceeding begins. This includes an actual copy of the lab certificate. Within 10 days of receipt, the Defense counsel must notify the Prosecutor in writing. This will not only alert the Prosecutor to the Defendants objections concerning the admission of the lab certificate into evidence, but also set forth grounds for the objection, 2C:35-19c. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence. THE TRIAL The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). The State must prove knowledge or purpose on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Purpose means it was defendants conscious intention to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990). If actual possession cannot be demonstrated, defendants constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975). In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held that there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS secretly contained in envelopes in a vinyl bag resting on the back seat next to another passenger in the car. In addition to establishing if the item seized is a CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutors witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug. If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence. CONCLUSION Drug related offenses carry substantial penalties which will effect a person for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances. Do not permit drug use and you will not have to worry about the substantial penalties. New Drug Possession Law: 2C:35-10 Possession, use or being under the influence, or failure to make lawful disposition 2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition. a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to: (1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $35,000.00 may be imposed; (2) Any controlled dangerous substance, or its analog, classified in Schedule V, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $15,000.00 may be imposed; (3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish is guilty of a crime of the fourth degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or (4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person. Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service. b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person. In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog. c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute. Amended 1988, c.44, s.5; 1997, c.181, s.6. 2C:35-10.2 Possession, etc. of gamma hydroxybutyrate; penalties 4. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, gamma hydroxybutyrate unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section. L.1997,c. 194, s.4. 2C:35-10.3 Possession, etc. of flunitrazepam; penalties 6. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, flunitrazepam, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section. L.1997,c. 194, s.6.

NJ Court Rule 1:6 Motions and Briefs in the Trial Courts, NJ Court RUle 1:6-1 Applicability of Rule

Rule 1:6 shall apply to all trial courts, except the Municipal Courts and except as otherwise provided by R. 3:26-2(d) (motions for bail reductions), R. 5:5-4 (motions in civil family actions), and R. 6:3-3 (motions in the Special Civil Part). 1:6-2. Form of Motion; Hearing (a) Generally. An application to the court for an order shall be by motion, or in special cases, by order to show cause. A motion, other than for bail pursuant to R. 3:26-2(d) or one made during a trial or hearing, shall be by notice of motion in writing unless the court permits it to be made orally. Every motion shall state the time and place when it is to be presented to the court, the grounds upon which it is made and the nature of the relief sought and shall be accompanied by a proposed form of order in accordance with R. 3:1-4(a) or R. 4:42-1(e), as applicable. The form of order shall note whether the motion was opposed or unopposed. If the motion or response thereto relies on facts not of record or not subject of judicial notice, it shall be supported by affidavit made in compliance with R. 1:6-6. The motion shall be deemed uncontested and there shall be no right to argue orally in opposition unless responsive papers are timely filed and served stating with particularity the basis of the opposition to the relief sought. (b) Civil Motions in Chancery Division and Specially Assigned Cases. When a civil action, by reason of its complexity or other good cause, has been specially assigned prior to trial to an individual judge for disposition of all pretrial and trial proceedings and in all cases pending in the Superior Court, Chancery Division, all motions therein shall be made directly to the judge assigned to the cause, who shall determine the mode and scheduling of their disposition. Except as provided in R. 5:5-4, motions filed in causes pending in the Superior Court, Chancery Division, Family Part, shall be governed by this paragraph. (c) Civil and Family Part Discovery and Calendar Motions. Every motion in a civil case or a case in the Chancery Division, Family Part, not governed by paragraph (b), involving any aspect of pretrial discovery or the calendar, shall be listed for disposition only if accompanied by a certification stating that the attorney for the moving party has either (1) personally conferred orally or has made a specifically described good faith attempt to confer orally with the attorney for the opposing party in order to resolve the issues raised by the motion by agreement or consent order and that such effort at resolution has been unsuccessful, or (2) advised the attorney for the opposing party by letter, after the default has occurred, that continued non-compliance with a discovery obligation will result in an appropriate motion being made without further attempt to resolve the matter. The moving papers shall also set forth the date of any scheduled pretrial conference, arbitration proceeding scheduled pursuant to R. 4:21A, calendar call or trial, or state that no such dates have been fixed. Discovery and calendar motions shall be disposed of on the papers unless, on at least two days notice, the court specifically directs oral argument on its own motion or, in its discretion, on a party's request. A movant's request for oral argument shall be made either in the moving papers or reply; a respondent's request for oral argument shall be made in the answering papers. (d) Civil and Family Part Motions-Oral Argument. Except as otherwise provided by R. 5:5-4 (family actions), no motion shall be listed for oral argument unless a party requests oral argument in the moving papers or in timely-filed answering or reply papers, or unless the court directs. A party requesting oral argument may, however, condition the request on the motion being contested. If the motion involves pretrial discovery or is directly addressed to the calendar, the request shall be considered only if accompanied by a statement of reasons and shall be deemed denied unless the court otherwise advises counsel prior to the return day. As to all other motions, the request shall be granted as of right. (e) Oral Argument-Mode. The court in civil matters, on its own motion or on a party's request, may direct argument of any motion by telephone conference without court appearance. A verbatim record shall be made of all such telephone arguments and the rulings thereon. (f) Order; Record Notation. If the court has made findings of fact and conclusions of law explaining its disposition of the motion, the order shall so note indicating whether the findings and conclusions were written or oral and the date on which they were rendered. If no such findings have been made, the court shall append to the order a statement of reasons for its disposition if it concludes that explanation is either necessary or appropriate. If the order directs a plenary or other evidential hearing, it shall specifically describe the issues to be so tried. A written order or record notation shall be entered by the court memorializing the disposition made on a telephone motion. 1:6-3. Filing and Service of Motions and Cross-Motions (a) Motions Generally. Other than an ex parte motion and except as otherwise provided by R. 4:46-1 (summary judgment) and R. 5:5-4(c) (post judgment motions), a notice of motion shall be filed and served not later than 16 days before the specified return date unless otherwise provided by court order, which may be applied for ex parte. Thus, for example, if the return date of the motion is a Friday, the motion must be filed and served not later than the Wednesday, 16 days prior. If a motion is supported by affidavit or certification, the affidavit or certification shall be filed and served with the motion. Except as provided by R. 4:49-1(b) (motion for new trial), any opposing affidavits, certifications or objections filed pursuant to R. 1:6-2 shall be filed and served not later than 8 days before the return date unless the court relaxes that time. Thus, for example, if the return date is on a Friday, any response must be filed and served no later than Thursday of the prior week. Reply papers responding to opposing affidavits or certifications shall be filed and served not later than 4 days before the return date unless the court otherwise orders. Thus, for example, such papers must be filed and served on Monday for a return date of the following Friday. No other papers may be filed without leave of court. (b) Cross-Motions. A cross-motion may be filed and served by the responding party together with that party's opposition to the motion and noticed for the same return date only if it relates to the subject matter of the original motion. A cross-motion relating to the subject matter of the original motion shall, if timely filed pursuant to this rule, relate back to the date of the filing of the original motion. The original moving party's response to the cross-motion shall be filed and served as provided by paragraph (a) for reply papers. The court may, however, on request of the original moving party, or on its own motion, enlarge the time for filing an answer to the cross-motion, or fix a new return date for both. No reply papers may be served or filed by the cross-movant without leave of court. (c) Completion of Service. For purposes of this rule, service of motion papers is complete only on receipt at the office of adverse counsel or the address of a pro se party. If service is by ordinary mail, receipt will be presumed on the third business day after mailing. 1:6-4. Superior Court; Place for Filing Motions, Orders to Show Cause and Orders The original of all motion papers, orders to show cause and orders in civil actions in the Superior Court shall be filed in accordance with R. 1:5-6(b), except that in all actions in the Chancery Division or specially assigned to a judge of the Law Division or, if the judge to whom the motion is assigned is known, a copy of all motion papers shall also be filed with the judge. 1:6-5. Briefs The moving party's brief in support of a motion shall, pursuant to R. 1:6-3, be served and submitted to the court with the moving papers. The respondent shall serve and submit an answering brief at least 8 days before the return date. A reply brief, if any, shall be served and submitted at least 4 days before the return date. Briefs may not be submitted after the time fixed by this rule or by court order, including the pretrial order, without leave of court, which may be applied for ex parte. 1:6-6. Evidence on Motions; Affidavits If a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions. 1:6-7. Reading of Moving Papers and Briefs in Advance Insofar as possible judges shall read moving papers and briefs in advance of the hearing and to this end, when briefs are submitted in the trial courts, the matter shall be assigned insofar as possible to the judge in advance of the hearing. The parties shall promptly advise the court if the matter has been disposed of by settlement prior to the hearing date.

Refinancing Your Mortgage

If you are a homeowner who was lucky enough to buy when mortgage rates were low, you may have no interest in refinancing your present loan. But perhaps you bought your home when rates were higher. Or perhaps you have an adjustable-rate loan and would like to obtain different terms. Should you refinance? This brochure will answer some questions that may help you decide. If you do refinance, the process will remind you of what you went through in obtaining the original mortgage. That's because, in reality, refinancing a mortgage is simply taking out a new mortgage. You will encounter many of the same procedures--and the same types of costs--the second time around. Would Refinancing Be Worth It? Refinancing can be worthwhile, but it does not make good financial sense for everyone. A general rule of thumb is that refinancing becomes worth your while if the current interest rate on your mortgage is at least 2 percentage points higher than the prevailing market rate. This figure is generally accepted as the safe margin when balancing the costs of refinancing a mortgage against the savings. There are other considerations, too, such as how long you plan to stay in the house. Most sources say that it takes at least three years to realize fully the savings from a lower interest rate, given the costs of the refinancing. (Depending on your loan amount and the particular circumstances, however, you might choose to refinance a loan that is only 1.5 percentage points higher than the current rate. You may even find you could recoup the refinancing costs in a shorter time.) Refinancing can be a good idea for homeowners who: * want to get out of a high interest rate loan to take advantage of lower rates. This is a good idea only if they intend to stay in the house long enough to make the additional fees worthwhile. * have an adjustable-rate mortgage (ARM) and want a fixed-rate loan to have the certainty of knowing exactly what the mortgage payment will be for the life of the loan. * want to convert to an ARM with a lower interest rate or more protective features (such as a better rate and payment caps) than the ARM they currently have. * want to build up equity more quickly by converting to a loan with a shorter term. * want to draw on the equity built up in their house to get cash for a major purchase or for their children's education. If you decide that a refinancing is not worth the costs, ask your lender whether you may be able to obtain all or some of the new terms you want by agreeing to a modification of your existing loan instead of a refinancing. What Are the Costs of Refinancing? The fees described below are the charges that you are most likely to encounter in a refinancing. * Application Fee. This charge imposed by your lender covers the initial costs of processing your loan request and checking your credit report. * Title Search and Title Insurance. This charge will cover the cost of examining the public record to confirm ownership of the real estate. It also covers the cost of a policy, usually issued by a title insurance company, that insures the policy holder in a specific amount for any loss caused by discrepancies in the title to the property. Be sure to ask the company carrying the present policy if it can re-issue your policy at a re-issue rate. Because costs may vary significantly from area to area and from lender to lender, the following are ESTIMATES ONLY. Your actual closing costs may be higher or lower than the ranges indicated below: * Application Fee $ 75.00 to $300.00 * Appraisal Fee 150.00 to 400.00 * Survey Costs 125.00 to 300.00 * Homeowner's Hazard Insurance 300.00 to 600.00 * Lender's Attorney's Review Fees 75.00 to 200.00 * Title Search and Title Insurance 450.00 to 600.00 * Home Inspection Fees 175.00 to 350.00 * Loan Origination Fees 1.00% of loan * Mortgage Insurance 0.50% to 1.0% * Points 1.00% to 3.0% * Your Attorney ________ * Lender's Attorney's Review Fees. The lender will usually charge you for fees paid to their own lawyer or company that conducts the closing for the lender. In most situations, the attorney conducting settlement is providing a service to the lender. You may also be required to pay for other legal services relating to your loan which are provided to the lender. You should retain your own attorney to represent you at all stages of the transaction including settlement. The cost of your attorney should be discussed in advance and added to the list of costs above. * Loan Origination Fees and Points. The origination fee is charged for the lender's work in evaluating and preparing your mortgage loan. Points are prepaid finance charges imposed by the lender at closing to increase the lender's yield beyond the stated interest rate on the mortgage note. One point equals one percent of the loan amount. For example, one point on a $75,000 loan would be $750. In some cases, the points you pay can be financed by adding them to the loan amount. The total number of points a lender charges will depend on market conditions and the interest rate to be charged. * Appraisal Fee. This fee pays for an appraisal which is a supportable and defensible estimate or opinion of the value of the property. * Miscellaneous. Depending on the type of loan you have and other factors, another major expense you might face is the fee for a VA loan guarantee, FHA mortgage insurance, or private mortgage insurance. There are a few other closing costs in addition to these. Should You Refinance Your ARM? In deciding whether to refinance an ARM you should consider these questions: 1. Is the next interest rate adjustment on your existing loan likely to increase your monthly payments substantially? Will the new interest rate be two or three percent age points higher than the prevailing rates being offered for either fixed-rate loans other ARMs? 2. If the current mortgage sets a cap on your monthly payments, are those payments large enough to pay off your loan by the end of the original term? 3. Will refinancing to a new ARM or a fixed-rate loan enable] you to pay your loan in full by the end the term? Conclusion In conclusion, a homeowner should plan on paying an average of 3 to 6 percent of the outstanding principal in refinancing costs, plus any prepayment penalties and the costs of paying off any second mortgages that may exist. One way of saving on some of these costs is to check first with the lender who holds your current mortgage. The lender may be willing to waive some of them, especially if the work relating to the mortgage closing is still current. This could include the fees for the title search, inspections, and so on.

Misdemeanors and Disorderly Person Offenses in New Jersey

A Felony is called a "crime" in New Jersey. A Misdemeanor is generally called a Disorderly Person's offense in New Jersey. New Jersey does not call criminal offenses felonies or misdemeanors. An offense which would be a felony in other states is simply called a "crime" in New Jersey. A lower misdemeanor type criminal matter is under the "Disorderly Person" offense. Kenneth Vercammen's Law office represents individuals charged with criminal and disorderly persons offenses. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted, you can face jail, high fines, Probation over 18 months and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for disorderly;y [misdemeanor] , marijuana, and other offenses. Our website KennethVercammen.com provides information on criminal offenses we can be retained to represent people. The following is the law in New Jersey as of 2004: 2C:43-1. Degrees of Crimes. a. Crimes defined by this code are classified, for the purpose of sentence, into four degrees, as follows: (1) Crimes of the first degree; (2) Crimes of the second degree; (3) Crimes of the third degree; and (4) Crimes of the fourth degree. A crime is of the first, second, third or fourth degree when it is so designated by the code. An offense, declared to be a crime, without specification of degree, is of the fourth degree. b. Notwithstanding any other provision of law, a crime defined by any statute of this State other than this code and designated as a high misdemeanor shall constitute for the purpose of sentence a crime of the third degree. Except as provided in sections 2C:1-4c. and 2C:1-5b. and notwithstanding any other provision of law, a crime defined by any statute of this State other than this code and designated as a misdemeanor shall constitute for the purpose of sentence a crime of the fourth degree. 2C:43-2. Sentence in accordance with code; authorized dispositions. a. Except as otherwise provided by this code, all persons convicted of an offense or offenses shall be sentenced in accordance with this chapter. b. Except as provided in subsection a. of this section and subject to the applicable provisions of the code, the court may suspend the imposition of sentence on a person who has been convicted of an offense, or may sentence him as follows: (1) To pay a fine or make restitution authorized by N.J.S. 2C:43-3 or P.L. 1997, c.253 (C. 2C:43-3.4 et al.); or (2) To be placed on probation and, in the case of a person convicted of a crime, to imprisonment for a term fixed by the court not exceeding 364 days to be served as a condition of probation, or in the case of a person convicted of a disorderly persons offense, to imprisonment for a term fixed by the court not exceeding 90 days to be served as a condition of probation; or (3) To imprisonment for a term authorized by sections 2C:11-3, 2C:43-5, 2C:43-6, 2C:43-7, and 2C:43-8 or 2C:44-5; or (4) To pay a fine, make restitution and probation, or fine, restitution and imprisonment; or (5) To release under supervision in the community or to require the performance of community-related service; or (6) To a halfway house or other residential facility in the community, including agencies which are not operated by the Department of Human Services; or (7) To imprisonment at night or on weekends with liberty to work or to participate in training or educational programs. c. Instead of or in addition to any disposition made according to this section, the court may postpone, suspend, or revoke for a period not to exceed two years the driver's license, registration certificate, or both of any person convicted of a crime, disorderly persons offense, or petty disorderly persons offense in the course of which a motor vehicle was used. In imposing this disposition and in deciding the duration of the postponement, suspension, or revocation, the court shall consider the severity of the crime or offense and the potential effect of the loss of driving privileges on the person's ability to be rehabilitated. Any postponement, suspension, or revocation shall be imposed consecutively with any custodial sentence. d. This chapter does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. Such a judgment or order may be included in the sentence. e. The court shall state on the record the reasons for imposing the sentence, including its findings pursuant to the criteria for withholding or imposing imprisonment or fines under sections 2C:44-1 to 2C:44-3, where imprisonment is imposed, consideration of the defendant's eligibility for release under the law governing parole and the factual basis supporting its findings of particular aggravating or mitigating factors affecting sentence. f. The court shall explain the parole laws as they apply to the sentence and shall state: (1) the approximate period of time in years and months the defendant will serve in custody before parole eligibility; (2) the jail credits or the amount of time the defendant has already served; (3) that the defendant may be entitled to good time and work credits; and (4) that the defendant may be eligible for participation in the Intensive Supervision Program. 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; e. Any higher amount equal to double the pecuniary gain to the offender or loss to the victim caused by the conduct constituting the offense by the offender. In such case the court shall make a finding as to the amount of the gain or loss, and if the record does not contain sufficient evidence to support such a finding the court may conduct a hearing upon the issue. For purposes of this section the term "gain" means the amount of money or the value of property derived by the offender and "loss" means the amount of value separated from the victim or the amount of any payment owed to the victim and avoided or evaded and includes any reasonable and necessary expense incurred by the owner in recovering or replacing lost, stolen or damaged property, or recovering any payment avoided or evaded, and, with respect to property of a research facility, includes the cost of repeating an interrupted or invalidated experiment or loss of profits. The term "victim" shall mean a person who suffers a personal physical or psychological injury or death or incurs loss of or injury to personal or real property as a result of a crime committed against that person, or in the case of a homicide, the nearest relative of the victim. The terms "gain" and "loss" shall also mean, where appropriate, the amount of any tax, fee, penalty and interest avoided, evaded, or otherwise unpaid or improperly retained or disposed of; f. Any higher amount specifically authorized by another section of this code or any other statute; g. Up to twice the amounts authorized in subsection a., b., c. or d. of this section, in the case of a second or subsequent conviction of any tax offense defined in Title 54 of the Revised Statutes or Title 54A of the New Jersey Statutes, as amended and supplemented, or of any offense defined in chapter 20 or 21 of this code; h. In the case of violations of chapter 35, any higher amount equal to three times the street value of the controlled dangerous substance or controlled substance analog. The street value for purposes of this section shall be determined pursuant to subsection e. of N.J.S. 2C:44-2. The restitution ordered paid to the victim shall not exceed the victim's loss, except that in any case involving the failure to pay any State tax, the amount of restitution to the State shall be the full amount of the tax avoided or evaded, including full civil penalties and interest as provided by law. In any case where the victim of the offense is any department or division of State government, the court shall order restitution to the victim. Any restitution imposed on a person shall be in addition to any fine which may be imposed pursuant to this section. 2C:43-8. Sentence of imprisonment for disorderly persons offenses and petty disorderly persons offenses A person who has been convicted of a disorderly persons offense or a petty disorderly persons offense may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall not exceed 6 months in the case of a disorderly persons offense or 30 days in the case of a petty disorderly persons offense.

Miranda Warning, Right to Remain Silent

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. The Fifth Amendment to the United States Constitution prohibits the use of involuntary statements and confessions at trial. The State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda doctrine. New Jersey requires the higher standard of beyond a reasonable doubt when the court determines if Miranda has not been fully complies with. State v Yough, 49 NJ 587, 600-601 (1967), State v Whittington 142 NJ Super. 45, 49-50 (App. Div. 1976), State v Flower 224 NJ Super. 208, 213 (Law Div 1987) affd per curiam 224 NJ Super. 90 (App. Div. 1988). WHAT IS INTERROGATION? As set forth in NJ Practice , Vol. 32 Criminal Practice and Procedure (West 1998) Section 755, (L. Arnold) in Rhode Island V Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) the United States Supreme Court held that the term "interrogation" under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit, an incriminating response from the suspect. It is "an established principle of our federalist system" that states may afford "individual liberties more expansive than those afforded by the federal constitution." State v Novembrino 105 NJ 95, 144-145 (1987). Generally, a statement given by a defendant is not admissible in a criminal case unless the court is satisfied beyond a reasonable doubt that the defendant was informed of his Miranda rights before giving the statement and "in light of all the circumstances attending the confession it was given voluntarily." State v Hampton, 61 NJ 250, 272 (1972). What is at stake is ensuring the use of effective procedural safeguards to secure the right of the Fifth Amendment to the United States Constitution that " no person shall be.... compelled in any criminal case to be a witness against himself," which is now made applicable to state action by the Due Process Clause of the Fourteenth Amendment. However, once informed of his rights " a defendant may waive effectuation of these rights provided the waiver is made voluntarily, knowingly and intelligently." State v Flower 224 NJ Super. 208, 213 (Law Div 1987) affd per curiam 224 NJ Super. 90 (App. Div. 1988). citing Miranda v Arizona 384 US 436, 444, 86 S. Ct 1602, 1612, 16 L. Ed 2d 694 (1966); emphasis in Flowers. In State v Flower 224 NJ Super. 208, 213 (Law Div 1987) affd per curiam 224 NJ Super. 90 (App. Div. 1988), the defendant had a low IQ and limited vocabulary. He gave confessions to police and a confession to DYFS. The court excluded the confession to the police, even though Miranda warnings were given and there was lack of coercion and an admitted waiver of rights by the defendant. The court concluded that since the Defendant could not understand his Miranda rights, he could not waive them. One cannot knowingly and intelligently waive a right that he cannot understand or appreciate. 224 NJ Super. at 216. The court also excluded confessions to a DYFS investigator on the same grounds since she was acting in a law enforcement capacity and failed to inform Defendant of his Miranda rights. Id at 220. Where it is charged that a confession was given under the influence of narcotics or during a withdrawal period, central question of voluntariness remains the same, and the trial court must scrutinize all the pertinent facts attending the confession with particular focus on Defendants demeanor, coherence, articulateness, capacity to full use of his faculties, his memory and his overall intelligence. State v Arcediano 371 F. Supp. 457 (D. NJ 1974); See also Wade v Yeager 245 F. Supp 62 (D. NJ 1964). The State must prove beyond a reasonable doubt that the waiver was made knowingly and intelligently. If the suspect is intoxicated or under the influence of drugs to the point that he cannot understand his constitutional rights, then any waiver is void. If the suspect is suffering from a mental disability which renders him incapable of understanding his constitutional rights, then any waiver is void. The level of mental disability which would render a suspect incapable of understanding his constitutional rights is probably close to the point at which the suspect could be said to be incapable of managing his own affairs. Where circumstances cast doubt on knowing and intelligent quality of alleged waiver of right to counsel, there can be no waiver. State vs. Dickens 192 NJ Super. 290 (App. Div. 1983). Intoxication is grounds to suppress statements. See e.g. Common vs. Brithsher 563 A.2d 502, App granted 575 A.2d 107. (If Defendants intoxication combined to render him incapable of understanding Miranda warning waiver of Miranda rights would be invalid); Common vs. Andel 477 A.2d 13 56 (1984); (Defendants waiver of his Miranda rights was vitiated by his intoxication, his eyes glaring and had a strong odor of alcohol. Statements made by defendant while in custody should suppressed.) The court has always set high standards of proof for the waiver of constitutional rights Johnson vs. Zerbst 304 US 458 58 S. Court 1019, 82 Ed 146 (1938). In Common vs. Hosey 334 NE 2d 44 ( Mass 75 ) the court reversed and remanded a matter where tried judge allowed admission of defendants statement to police where defendant was extremely high, extremely emotional and detected from reality. Due process requires not only that a conviction not be based on an involuntary confession but also that a trial court hold what has become known as a Jackson Denno hearing when a defendant contests the voluntariness of his statement. Miller vs. Dugger 838 F. 2d 1530 ( 11 Cir. 1988) cert. den 486 US 1061. 1085.S. Ct. 2832 100 L. Ed 2d 933 (1988). At the Jackson- Denno hearing and at oral argument, we will explain through cross-examination and witnesses the involuntary nature of any statements the state intends to produce. Custodial interrogation of a suspect must cease if he or she "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent." Miranda v Arizona, 384 U.S. at 473-474. The suspect need not assert his or her privilege to remain silent with the "utmost of legal precision." State v Johnson 120 N.J. 263, 281 (1990) (quoting State v Bey (I) 112 N.J. 45, 65 (1988)). Silence itself can be deemed to be an invocation of the privilege against self-incrimination. State v Johnson 120 N.J. at 281. A suspects request to terminate questioning must be honored, regardless of how ambiguously or equivocally the request is worded. State v Harvey 121 N.J. 407, 417, 419 (1990) (the defendants statement that he would tell the police about the murder, but first wanted to speak with his father, was held to be an invocation of the privilege), cert. denied, 499 U.S. 931 (1991); State v Bey (I) 112 N.J. 45, 64-65 (1988) (defendants statement that he "did not want to talk about it" deemed to be an invocation of the privilege); State v Bohuk, 269 N.J. Super. 581, 593 (App. Div.) (refusal to respond to even preliminary questions concerning a drunk driving charge must be regarded as an assertion by the defendant of the Fifth Amendment privilege), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994). Once the right to remain silent has been asserted, it must be "scrupulously honored." Michigan v Mosley 423 U.S. 96, 102-103 (1975); State v Adams 127 N.J. 438, 445 (1992); State v Fuller 118 N.J. 75, 81 (1990). Under New Jersey law, once a suspect has invoked his or her right to remain silent, the police must issue a new set of Miranda warnings before questioning may resume. State v Hartley 103 N.J. 252, 267 (1986). Any statement obtained without administering fresh warnings is unconstitutionally compelled and inadmissible. State v Hartley 103 N.J. at 256. Moreover, where the police have not "scrupulously honored" a previous invoked right to silence, readministration of Miranda rights may not necessarily cure the violation, when the second questioning follows so closely on the first as to be part and parcel of a continuos interrogation. State v Heartily 103 NJ. at 280-281; State v Malign 288 NJ. Super. 139, 147 (App. Div. 1996). See also West over v United States 384 U.S. 436, 496-497 (1966). If there is any uncertainty or ambiguity about whether or not a suspect has asserted the right to remain silent, the police must cease asking questions about the crime, State v Dixin 125 N.J. 223, 240-41 (1991), but may question the suspect to clarify if the suspect intends to assert his or her right to remain silent. State v. Harvey 151 N.J. 117, 221 (1997); State v Johnson 120 N.J. at 283. See also State v Harvey 121 N.J. at 418-19. "Only if the suspect [then] makes clear that he is not invoking his Miranda rights should substantive questioning be resumed." State v Wright 97 N.J. 113, 120 n. 4 (1984) (quoting U.S. v Riggs 537 F. 2d 1219 (4th Cir. 1976)); See also State v Bohuk 269 N.J. Super. at 593. Waiver of the right to remain silent must be knowing, intelligent and voluntary. Miranda v Arizona 384 U.S. at 463-466; State v Hartley 103 N.J. at 260. The question of waiver is to be determined on a case by case basis, taking into account, among other circumstances, the background, experience, and conduct of the accused. North Carolina v Butler 441 U.S. 369, 374-375 (1979); State v Kennedy 97 N.J. 278, 286 (1984). The State bears the heavy burden of proof to show beyond a reasonable doubt that a defendant has waived his or her right against self-incrimination, State v Reed 133 N.J. at 251; State v Bey (II) 112 N.J. 123, 135 (1988), in contrast to the federal preponderance of the evidence standard. Colorado v Connelly 479 U.S. 157, 165 (1986). State v Hartley 103 N.J. at 260. The issue of waiver arises only if the police have scrupulously honored the suspects right to silence once invoked, or if the suspect never invoked his or her Miranda rights. State v Adams 127 N.J. 438, 445-446 (1992); State v Hartley 103 N.J. at 261. Misrepresentations by police officers during the course of questioning a suspect, by themselves, are not generally sufficient to justify a finding of involuntariness or lack of knowledge. However, misrepresentations by police officers are relevant in analyzing the totality of the circumstances. If the misrepresentations by the police officer actually induced the confession or waiver, the defendants statements will be deemed to be involuntary. State v Cooper 151 N.J. 326, 355 (1997); State v Chew 150 N.J. 30, 66 (1997). Under New Jersey State law, "[t]he State must prove the voluntariness of a confession beyond a reasonable doubt." State v. Galloway 133 N.J. at 654; State v Kelly 61 N.J. 283, 294 (1972). In contrast, the federal burden of proof for voluntariness of a confession is by a preponderance of the evidence. Lego v Twomey 404 U.S. 477, 489 (1972). Further, unlike federal law, New Jersey law requires that the voluntariness issue be demonstrated by admissible evidence. Compare N.J.R.E. 104(c) with Fed. R. Evid. 1101(d)(1); See State v Cavallo 88 N.J. 508, 526, 529 (1986). It should be noted that even if the State establishes the admissibility of a defendants confession, it must still adduce independent proof of facts and circumstances to corroborate the confession, plus independent proof of the crime. State v Maben 132 N.J. 487, 491, 502 (1993); State v Johnson 31 N.J. 489, 502-503 (1960). 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 drivers 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;

Methamphetamine - a Criminal Offense in New Jersey

Our office represents people charged with crimes. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted, you can face prison, fines over $10,000, jail, probation over 18 months, and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal violations. Our website, KennethVercammen.com, provides information on criminal offenses for which we can be retained to represent people. Methamphetamine ("meth") can take a novice user and transform him or her into a speed freak in record time. Methamphetamine tempts users with dramatic bursts of energy, talkativeness, and excitement. On meth, users don't need sleep or food, and they can keep going and going for hours. Meth "energy" lasts a few hours, and then slams the user into an exhausted, weak, drug-craving crash. Under the influence of meth, users feel "wired" and edgy. They are often unpredictable, acting friendly and sociable, and then suddenly lashing out in suspicion and violence. Many users compulsively repeat meaningless tasks for hours or pick at imaginary bugs on their skin until it bleeds. The methamphetamine crash makes users feel depressed, anxious, paranoid, and aggressive. They are typically exhausted and shaking. Above all, they usually crave more methamphetamine. When users begin to crash, they start looking for more meth. Even first-timers will binge and crash on the drug until they run out of money or become too mentally disorganized to continue. Methamphetamine is a Controlled Substance, Schedule III drug. Possession of a Schedule III Narcotic There are a number of viable defenses and arguments which can be pursued to achieve a successful result for someone charged with possession of narcotics (CDS). Advocacy, commitment, and persistence are essential to defending a client accused of involvement with Narcotics. In New Jersey, there are drug laws which establish schedules of illegal drugs. New Jersey does not call serious drug offenses "felonies". They are called "crimes" NJSA 24:21-7 Schedule III 7. Schedule III. Drugs a. Tests. The commissioner shall place a substance in Schedule III if he finds that the substance: (1) has a potential for abuse less than the substances listed in Schedules I and II; (2) has currently accepted medical use in treatments in the United States; and (3) abuse may lead to moderate or low physical dependence or high psychological dependence. b. The controlled dangerous substances listed in this section are included in Schedule III, subject to any revision and republishing by the commissioner pursuant to section 3d., and except to the extent provided in any other schedule. c. Any material, compound, mixture, or preparation which contains any quantity of the following substances associated with a stimulant effect on the central nervous system: (1) Amphetamine, its salts, optical isomers, and salts of its optical isomers. (2) Phenmetrazine and its salts. (3) Any substance which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers. (4) Methylphenidate. d. Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system: (1) Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid, except those substances which are specifically listed in other schedules (2) Chlorhexadol (3) Glutethimide (4) Lysergic acid (5) Lysergic acid amide (6) Methyprylon (7) Phencyclidine (8) Sulfondiethylmethane (9) Sulfonethylmethane (10) Sulfonmethane (11) Ketamine hydrochloride. e. Nalorphine. f. Any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof: (1) not more than 1.80 grams of codeine or any of its salts per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium. (2) not more than 1.80 grams of codeine or any of its salts per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts. (3) not more than 300 milligrams of dihydrocodeinone or any of its salts per 100 milliliters or not more than 15 milligrams per dosage unit, with a four-fold or greater quantity of an isoquinoline alkaloid of opium. (4) not more than 300 milligrams of dihydrocodeinone or any of its salts per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts. (5) not more than 1.80 grams of dihydrocodeine or any of its salts per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts. (6) not more than 300 milligrams of ethylmorphine or any of its salts per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts. (7) not more than 500 milligrams of opium or any of its salts per 100 milliliters or per 100 grams, or not more than 25 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts. (8) not more than 50 milligrams of morphine or any of its salts per 100 milliliters or per 100 grams with one or more active, nonnarcotic ingredients in recognized therapeutic amounts. g. The commissioner may by regulation except any compound, mixture, or preparation containing any stimulant or depressant substance listed in subsections a. and b. of this schedule from the application of all or any part of this act if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system; provided, that such admixtures shall be included therein in such combinations, quantity, proportion, or concentration as to vitiate the potential for abuse of the substances which do have a stimulant or depressant effect on the central nervous system.

2C:045-004. Notice and Hearing on Revocation or Modification O

The court shall not revoke a suspension of sentence or probation or delete, add or modify conditions of probation except after a hearing upon written notice to the defendant of the grounds on which such action is proposed. The defendant shall have the right to hear and controvert the evidence against him, to offer evidence in his defense, and to be represented by counsel.

http://www.njlaws.com/2c-45-4.html?id=3312%20.a=

2C:045-003. Summons or Arrest of Defendant Under Suspended Sen in NJ

a. At any time before the discharge of the defendant or the termination of the period of suspension or probation:

(1) The court may summon the defendant to appear before it or may issue a warrant for his arrest;

(2) A probation officer or peace officer, upon request of the chief probation officer or otherwise having probable cause to believe that the defendant has failed to comply with a requirement imposed as a condition of the order or that he has committed another offense, may arrest him without a warrant;

(3) The court, if there is probable cause to believe that the defendant has committed another offense or if he has been held to answer therefor, may commit him without bail, pending a determination of the charge by the court having jurisdiction thereof;

(4) The court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or if he has been convicted of another offense, may revoke the suspension or probation and sentence or resentence the defendant, as provided in this section. No revocation of suspension or probation shall be based on failure to pay a fine or make restitution, unless the failure was willful.

b. When the court revokes a suspension or probation, it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted.

c. The commencement of a probation revocation proceeding shall toll the probationary period until termination of such proceedings. In the event that the court does not find a violation of probation, this subsection shall not operate to toll the probationary period.

http://www.njlaws.com/2c-45-3.html?id=3311%20.a=