Sunday, March 20, 2022

Drug charge defense 2c:35-10

    Drug charge defense 

Kenneth Vercammen’s Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses:

NJSA 2C:5-10(a)(4), possession of certain drugs

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 must 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.

       In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.

 

You should hire a Certified Municipal Court Law Attorney such as Kenneth Vercammen to Represent you if you are serious about contesting serious charges. Very few attorneys in New Jersey have been able to pass the rigid test to be recognized by the Supreme Court as a Certified Municipal Court Law Attorney. Ask your attorney if they have actually had trials in the past year or just plead people guilty.

      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 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. 

 

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.

 

 

2C:35-10 Marijuana 2C:35-10 pot charges CDS

Kenneth Vercammen’s Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

The defense of a person charged with possession of drugs or drug paraphernalia is not impossible. Attorneys should not merely suggest that their client plead guilty to save a few dollars. 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 involvement with controlled dangerous substances (CDS).

 

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 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 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 may be imposed;    (3) (a) Prior to the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), 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 may be imposed; 

 

   (b)   On and after to the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), possession of more than six ounces of marijuana, including any adulterants or dilutants, or more than 17 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 may be imposed;

 

   (i)   The odor of marijuana or hashish, or burnt marijuana or hashish, shall not constitute reasonable articulable suspicion to initiate a search of a person to determine a violation of subparagraph (b) of paragraph (3) of this subsection.  A person who violates this paragraph shall not be subject to arrest, detention, or otherwise be taken into custody, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required;

 

   (ii)   A person shall not be deprived of any legal or civil right, privilege, benefit, or opportunity provided pursuant to any law solely by reason of committing a violation of subparagraph (b) of paragraph (3) of this subsection, nor shall committing one or more violations modify any legal or civil right, privilege, benefit, or opportunity provided pursuant to any law, including, but not limited to, the granting, renewal, forfeiture, or denial of a license, permit, or certification, qualification for and the receipt, alteration, continuation, or denial of any form of financial assistance, housing assistance, or other social services, rights of or custody by a biological parent, or adoptive or foster parent, or other legal guardian of a child or newborn infant, or pregnant woman, in any action or proceeding by the Division of Child Protection and Permanency in the Department of Children and Families, or qualification, approval, or disapproval to serve as a foster parent or other legal guardian;

 

   (iii) All local and county law enforcement authorities shall, following the submission process used for the uniform crime reporting system established by P.L.1966, c.37 (C.52:17B-5.1 et seq.), submit a quarterly report to the Uniform Crime Reporting Unit, within the Division of State Police in the Department of Law and Public Safety, or to another designated recipient determined by the Attorney General, containing the number of violations of subparagraph (b) of paragraph (3) of this subsection committed within their respective jurisdictions, plus the race, ethnicity, gender, and age of each person committing a violation, and the disposition of each person's violation.  These violations and associated information, along with a quarterly summary of violations investigated, and associated information collected, by the Division of State Police for the same period shall be summarized by county and municipality in an annual report, and both quarterly summaries and annual reports shall be made available at no cost to the public on the Division of State Police's Internet website; or

 

   (4) (a) Prior to the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person;

 

   (b)   On and after the effective date of P.L.2021, c.19 (C.2C:35-23.1 et al.), possession of six ounces or less of marijuana, including any adulterants or dilutants, or 17 grams or less of hashish is not subject to any punishment, as this possession is not a crime, offense, act of delinquency, or civil violation of law; or

 

   (5)   Possession of one ounce or less of psilocybin is a disorderly persons offense.

 

   Any person who commits any offense set forth in paragraphs (1) through (3) of this subsection 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. (1) Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, not including marijuana or hashish, 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, prohibited 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 prohibited 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 prohibited controlled dangerous substance or controlled substance analog.

 

   (2)   Notwithstanding that using or being under the influence of marijuana or hashish is not a punishable crime, offense, act of delinquency, or civil violation pursuant to this subsection, the smoking, vaping, or aerosolizing of marijuana or hashish may be prohibited or otherwise regulated on or in any property by the person or entity that owns or controls that property, including multifamily housing that is a multiple dwelling as defined in section 3 of P.L.1967, c.76 (C.55:13A-3), the structure or specific units of the structure of a cooperative as defined in section 3 of P.L.1987, c.381 (C.46:8D-3),the units of a condominium, as those terms are defined by section 3 of P.L.1969, c.257 (C.46:8B-3), or a site in a mobile home park as defined in section 3 of P.L.1983, c.386 (C.40:55D-102), which site is leased to the owner of a manufactured home, as defined in that section, that is installed thereon.

 

   c.   Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of paragraph (1) or (2) 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; 2021, c.9; 2021, c.16, s.56; 2021, c.19, s.2.

 

     More info at http://www.njlaws.com/marijuana.html

       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.

     In addition, probation for several 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  Prosecutor and the Court k. 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.

 

 

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

 

Copyright 2016 Vercammen Law

 

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 defendant’s driver’s license between six months and two years.

       The conditional discharge period is also between 1 year 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.

 

    Pre-Trial Motions we usually file:

1.           1.    1)    Suppress Evidence

2.           2.    2)    Miranda/Privilege

3.           3.    3)    Exclude Lab Tests

4.           4.    4)    Discovery

5.           5.    5)    Reciprocal Discovery

6.           6.    6)    Experts

7.           7.    7)    Reciprocal discovery

8.           8.    8)    Speedy Trial

9.           9.    9)    Notice of Objection to Lab Reports

 

PRE‑TRIAL MOTIONS

 

        At a time to be set by the Court, Defendant will move for Orders pursuant to R. 3:10‑5, 3:13‑1, and 7:7-7, as follows and requests oral argument pursuant to R. 1:6‑2(d) to preserve all of defendant's rights and defenses:

 

1)    Suppress Evidence. Defendant will move to suppress, evidence obtained by the State during its investigation of case, pursuant to R. 3:5‑7 and 7:5-2, because evidence‑‑ie defendant's person, breath, blood, and/or other things‑‑was seized unlawfully, without a warrant  and contrary to U.S. Const. Amends. IV and XIV and N.J. Const. Art.1, para.7. Defendant believes the State will use this evidence in proceedings before this Court on the above captioned charges.

 

2)    Miranda/Privilege. Defendant will move to exclude statements by, and evidence obtained from, Defendant during the State's investigation of this case because the statements and evidence (a) create substantial danger of undue prejudice to Defendant contrary to Evid.R. 403 (previously Evid.R. 4), (b) are privileged under Evid.R. 503 (previously Evid.R. 25), and (c) were obtained contrary to U.S. Const. Amends. V, VI, IX, and XIV, NJ Constitution 1, paras.1, 10, and 2], and requirements stated in Miranda v. Arizona, 384 US. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny.

 

3)    Exclude Drug Tests. If police used a drug testing instrument in this case, Defendant will move to exclude evidence(‑ of drug test results because (a) the Attorney General failed to exercise administrative authority and prescribe methods and procedures for periodic inspection of drug testing instruments as required by statute, and (b) without such properly prescribed methods and procedures, the State cannot lay the foundation needed for admission of drug test results into evidence at trial. 

 

4)    Discovery.  7.1 Defendant requests that the State provide paper copy of any relevant discovery as required by Rule 3:13-3, Rule 7:7-7(b) . Defendant further requests that the Court enter a DISCOVERY ORDER, provided the prosecutor neither sends notice of specific objections in writing pursuant to R. 3:1‑4 nor moves timely for a protective order pursuant to R. 3:13‑3(d). . If the State fails to provide discovery as requested herein, Defendant may move either before or during trial pursuant to R. 3:13‑3(f), R. 3:17‑4, and Evid.R. 807 (previously Evid.R 64), as applicable, for an Order (a) permitting discovery or inspection of undisclosed materials, (b) granting a continuance, (c) prohibiting introduction in evidence of undisclosed material, (d) monetary sanctions, (e) dismissal of the charges, and (f)such other order as the Court deems appropriate.

 

5)    Reciprocal Discovery. 8.1. Defendant may call certain fact witnesses to testify, inter alia, that: they have known Defendant, b) they saw Defendant before or after police saw Defendant, c) Defendant was not under the influence of drugs, d)and e) there was no articulable suspicion that Defendant had violated the law. The witnesses will be named following/ after the state provides complete discovery.

 

6)    Defendant may call the following experts to testify- Expert  Dr. Richard Saperstein,  and/or Others to be provided if and when retained following receipt of the state's expert.

 

7)    Defendant may use demonstrative and documentary evidence, which the State may inspect and copy or photograph after paying reasonable expenses therefor: a) photographs c) video e) maps g) pharmacy records h) films d) diagrams f) medical/hospital h) weather records

 

8)    Speedy Trial. Defendant demands a speedy trial pursuant to U.S. Const. Amend. VI and N.J. Const. Art.1, para.10.

 

9)    Notice of Objection. If the State gives notice of intent to proffer a certificate executed by a laboratory employee pursuant to N.J.S. 2C:35‑19c, Defendant hereby objects to it on the grounds that Defendant intends to contest at trial the composition, quality, and quantity of substances submitted to the laboratory for analysis.

 

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.   Copyright 2016 Vercammen Law

 

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. You may be required to do Community Service.

11. 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.

12. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

13. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

14. You lose the presumption against incarceration in future cases. 2C:44-1

15. 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

Monday, January 11, 2021

STATE OF NEW JERSEY v. CHRISTOPHER RADEL. APPELLATE DIVISION DOCKET NO. A-2503-18T3 STATE OF NEW JERSEY

 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION 
SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2503-18T3

STATE OF NEW JERSEY,

     Plaintiff-Respondent,              APPROVED FOR PUBLICATION

                                                 October 20, 2020
v.
                                            APPELLATE DIVISION
CHRISTOPHER RADEL a/k/a
CHRISTOPH R. RADEL,
CHRISTPOH R. RADEL, and
CHRISTOHE R. RADEL,

     Defendant-Appellant.
_____________________________

           Argued September 15, 2020 – Decided October 20, 2020

           Before Judges Fisher, Moynihan and Gummer.

           On appeal from the Superior Court of New Jersey, Law
           Division, Passaic County, Indictment No. 16-08-0697.

           Stefan Van Jura, Assistant Deputy Public Defender,
           argued the cause for appellant (Joseph E. Krakora,
           Public Defender, attorney; Stefan Van Jura, of counsel
           and on the brief).

           Deborah Bartolomey, Deputy Attorney General, argued
           the cause for respondent (Gurbir S. Grewal, Attorney
           General, attorney; Deborah Bartolomey, of counsel and
           on the brief).

     The opinion of the court was delivered by
FISHER, P.J.A.D.

      After being indicted and charged with numerous weapons and drug

offenses, defendant moved in the trial court for the suppression of evidence

seized from his home. The evidence – guns, ammunition, drugs, and drug

paraphernalia – was seized pursuant to a search warrant supported by

information police had obtained during a warrantless entry into defendant's

home. The State persuaded the trial judge that the warrantless entry did not run

afoul of the Fourth Amendment because the police were justified in conducting

a protective sweep. Because the evidence and the judge's findings do not support

that conclusion, we vacate the order denying suppression and remand for further

proceedings. In light of this disposition, we find it unnecessary at this time to

consider the other issues defendant raised in this appeal.

      The record reveals that after the judge's denial of defendant's suppression

motion, defendant reached a plea agreement with the State and entered a

conditional guilty plea to one count of second-degree being a certain person not

permitted to possess weapons,  N.J.S.A. 2C:39-7(b)(1), and one count of second-

degree unlawful possession of a weapon,  N.J.S.A. 2C:39-5(b)(1). As part of the

plea agreement, the State dismissed the other eighty-six counts of the

indictment.   Defendant was later sentenced, within the plea agreement's


                                                                         A-2503-18T3
                                        2
parameters, to a ten-year prison term, subject to a five-year period of parole

ineligibility, on the certain-persons conviction and a fifteen-year prison term,

subject to a seven-and-one-half-year period of parole ineligibility, on the

unlawful-possession-of-a-weapon conviction; both terms were ordered to run

consecutively.

      Defendant appeals, arguing:

            (1) the warrantless entry and purported protective
            sweep of his home could not be justified because,
            among other things, he was arrested and handcuffed
            outside the home before the sweep occurred;

            (2) those counts charging unlawful possession of a
            firearm under  N.J.S.A. 2C:39-5(b)(1), were barred by
             N.J.S.A. 2C:39-6(e), which declares that nothing in
            subsection (b) of  N.J.S.A. 2C:39-5 "shall be construed
            to prevent a person keeping or carrying about his . . .
            residence . . . any firearm";

            (3) those counts charging possession of hollow nose
            bullets,  N.J.S.A. 2C:39-3(f)(1), were barred by
             N.J.S.A. 2C:39-3(g)(2)(a), for reasons similar to those
            raised in his second point;

            (4) the charges based on defendant's possession of
            marijuana or drug paraphernalia should have been
            dismissed because, in defendant's words, "the State
            failed to present clearly exculpatory evidence to the
            grand jury demonstrating that defendant could lawfully
            possess marijuana for medical reasons"; and

            (5) the sentence imposed was shocking to the judicial
            conscience and otherwise improperly imposed.

                                                                        A-2503-18T3
                                       3
We agree with defendant that the police were not entitled to conduct a protective

sweep under the circumstances. For that reason, we vacate the order denying

the suppression motion and remand for further proceedings without reaching or

deciding the other four issues.1

      Three police officers and defendant testified at the suppression hearing.

The State's evidence revealed that police interest in defendant started with an

assistant prosecutor's January 7, 2016 call to local police about an October 27,

2015 order, which apparently sprang from defendant's March 2015 conviction

for unlawful possession of a weapon. The order directed "members of Little

Falls Police Department [to] respond to the [d]efendant's home, located at 103

Browertown Road [, Little Falls] . . . for the limited purpose of retrieving from

said home any and all firearms, including one Beretta [handgun]." One of the

officers testified that after the phone call from the prosecutor's office he did

some research and learned defendant was the target of two outstanding

municipal arrest warrants.         He also learned that defendant lived at 81

Browertown Road, not 103 Browertown Road where his parents lived. The




1
  Because we do not consider them at this time, defendant may pursue those
other four issues in any later appeal, if necessary.
                                                                         A-2503-18T3
                                         4
officer called and briefly spoke to defendant's mother, who, the officer asserted,

wasn't helpful in assisting his attempts to get in touch with defendant.

      The police assembled a team of six officers for the purpose of going to

defendant's neighborhood and arresting him on the outstanding municipal arrest

warrants.  81 Browertown and 103 Browertown are on the same side of the street

and separated by a driveway that runs off Browertown and into a Passaic Valley

High School parking lot. The officers were stationed around the premises; some

watched the backs of the homes, and others sat in the driveway to the high school

between 81 and 103 Browertown. Before long, one officer noticed a figure in

blue in the backyard of 81 Browertown entering the rear of that home; that

officer also heard a "loud bang." Within a few minutes, other officers saw a

person, who matched their photos of defendant, wearing a blue jacket as he

exited the front door of 81 Browertown carrying a laundry basket. As defendant

placed the laundry basket in the backseat of a vehicle parked in the driveway,

an officer – in his words – was "on" him, seizing defendant and placing him face

down as he applied handcuffs. Defendant did not resist. Once defendant was in

custody, the police concluded a protective sweep of 81 Browertown was

necessary out of a concern there might be others inside, along with the handgun

they had come to retrieve.


                                                                           A-2503-18T3
                                        5
      After entering the dwelling at 81 Browertown, police observed in plain

sight a black handgun in a glass cabinet, a ballistics vest, and drug paraphernalia.

No other person was inside. Some officers then left to seek out a search warrant

while others remained behind to secure the premises until the warrant was

obtained. A judge issued a search warrant and the subsequent search led to the

seizure of weapons and other evidence that were the subject of defendant's

unsuccessful suppression motion. The linchpin of the judge's denial of the

motion was his finding that the officers engaged in a legitimate protective sweep

of 81 Browertown.

      In considering defendant's argument about the challenged protective

sweep, we start with broad principles.         The Fourth Amendment protects

individuals from unreasonable searches and seizures, and "the chief evil against

which the wording of the Fourth Amendment is directed" is an unwarranted

physical intrusion into the home. United States v. U.S. Dist. Court,  407 U.S.
 297, 313 (1972). So, the officers' entry into 81 Browertown after defendant's

arrest outside was presumptively unlawful absent the State's demonstration that

the entry fell into one of the specific exceptions acknowledged by the Supreme

Court of the United States. State v. Davila,  203 N.J. 97, 111-12 (2010). The

only exception argued by the State was based on the protective-sweep doctrine.


                                                                            A-2503-18T3
                                         6
      In Maryland v. Buie,  494 U.S. 325, 327 (1990), the Court approved the

protective-sweep doctrine while also recognizing that to pass constitutional

muster the sweep must be

            a quick and limited search of premises, incident to an
            arrest and conducted to protect the safety of police
            officers or others. It is narrowly confined to a cursory
            visual inspection of those places in which a person
            might be hiding.

Despite Buie's declaration that the search of the premises must be "incident to

an arrest," ibid., our Supreme Court has recognized that this doctrine has been

"extended," State v. Bryant,  227 N.J. 60, 70 (2016), and the warrantless sweep

is permitted, when:

            (1) law enforcement officers are lawfully within the
            private premises for a legitimate purpose, which may
            include consent to enter; and (2) the officers on the
            scene have a reasonable [and] articulable suspicion that
            the area to be swept harbors an individual posing a
            danger.

            [Davila,  203 N.J. at 125.]

Even though a protective sweep does not have to be "incident to an arrest," Buie

and Davila presuppose that law enforcement officers who believe themselves or

others in potential danger would actually be in the premises or location to be

swept. In both cases, officers were properly inside the defendant's home either



                                                                        A-2503-18T3
                                         7
to execute an arrest warrant or by consent, thus presenting the heightened

concern for their safety that the protective-sweep doctrine requires.

      This case differs. No one disputes that defendant was outside his home,

under arrest, and in handcuffs before police made the decision to enter his home,

ostensibly for their protection. Despite this distinguishing fact, the judge found

that Davila's first prong "can be extended to the circumstances of this case" and

he then justified that extension by reference to facts he found supportive of the

second prong. We reject the judge's legal analysis.

      The first prong requires that the officers have a legitimate purpose for

being within the private area to be swept. The officers were in the vicinity to

either obtain the handgun described in the October 27 forfeiture order or to

execute the municipal warrants calling for defendant's arrest. The October 27

order only directed them to 103 Browertown, not 81 Browertown; it did not

explicitly authorize a search of the former, let alone the latter.      And, the

municipal warrants only provided authority to arrest defendant. Once the arrest

was accomplished, the arrest warrants were fulfilled, and the officers had no

further legitimate purpose for remaining on the property. See State v. Lane,  393 N.J. Super. 132, 154-55, 157-58 (App. Div. 2007). We, thus, reject the judge's

legal conclusion that the first prong of the Davila test was met.


                                                                          A-2503-18T3
                                        8
      Even assuming the first prong was satisfied, we conclude that the

circumstances offered on the second prong were insufficient to support a

permissible protective sweep. In finding that the State sufficiently demonstrated

the officers had a reasonable and articulable suspicion that the place to be swept

harbored a danger, the judge relied on:

                ̢ۢ the forfeiture order;

                ̢ۢ one officer's fleeting observation that someone
                  dressed in blue in the backyard entered the home
                  from the rear a few minutes before defendant,
                  also dressed in blue, exited from the front;

                ̢ۢ that same officer heard a "loud bang";

                ̢ۢ two cars were in the driveway; and

                ̢ۢ what the judge referred to as defendant's
                  "contradictory answers to the police."

We conclude that, whether considered individually or collectively, these

circumstances could not support a reasonable and articulable suspicion that both

a weapon and at least one other person were inside 81 Browertown and posed a

threat to the officers or others.

      The forfeiture order. We do not know – because the State failed to show

at the suppression hearing – what led to the issuance of the October 27 forfeiture

order. Even so, the order suggested only that a handgun could be found at 103


                                                                          A-2503-18T3
                                          9
Browertown; it was silent about 81 Browertown. And, whatever it suggested

about 103 Browertown was nearly three-month-old information when the

officers arrived to arrest defendant. So, we not only reject the leap suggested

by the State that this order authorized entry into 103 Browertown – it says no

such thing2 – but we reject as well the contention that this order somehow

supports a belief that the handgun could be found inside 81 Browertown three

months later.

      The person in the backyard. One of the officers stationed so he could

watch the rear of 81 Browertown testified that he observed

            a person walking in the rear yard of 81 Browertown.
            The individual was wearing something blue. And –
            and, then, the image was gone. . . . [T]he image . . .
            [e]ntered the rear of  81 Browertown.



 2
  When questioned by the judge about the October 27 order's significance, the
assistant prosecutor conceded that it could not pass for a search warrant:

            THE COURT: . . . But, listen to me. I'm going to tell
            you what really bothers me here, is . . . the staleness of
            [the October 27 order] . . . .

            ASSISTANT PROSECUTOR:               Judge, there's no
            staleness. This is not a search warrant.

            [Emphasis added.]
                                                                         A-2503-18T3
                                       10
"[P]retty quick[ly]" after, the officer who made this observation "became aware

. . . over the radio" "that an individual had exited the front of the residence."

      This testimony at best reveals only that one officer saw a person in blue

in the backyard 3 and that this person in blue entered the home a few minutes

before another officer saw a person in blue exit the front of the home . This

suggests only one reasonable conclusion:         the officer in the front of 81

Browertown saw the same person that the other officer saw in the back of 81

Browertown: defendant. Nothing about this reasonably suggests that the person

seen in the backyard wasn't the person who came out the front door.4

      The loud bang. The officer who observed the person in blue in the back

of 81 Browertown also testified that after that person entered the home he heard

"a very loud bang." When asked to describe the sound, he said that "if [he] had

to characterize it, [it] was very metallic and very heavy – very, like a clanking

almost, but a very loud, very intense sound[;] [i]t wasn't high-pitched, but it was

metallic." No one else professed to have heard it. Neither at the scene nor from


3
  The officer testified that he had asked the other officers near him whether they
saw the individual, but he never said whether anyone confirmed that they did.
4
  That officer merely testified he "wasn't sure if . . . the individual that I had
seen towards the rear of the property was actually the defendant, or not. All I
really saw was somebody wearing blue. I couldn't identify that person's face or
really make any other descriptive observations of them."
                                                                            A-2503-18T3
                                        11
the witness stand did this officer state that the loud bang sounded like a gunshot

or that he told the other officers prior to the protective sweep that it sounded like

a gunshot.

      Interestingly, the judge found this officer credible because the officer did

not exaggerate by asserting it was a gunshot he heard. Nevertheless, in his

findings, the judge gave this "loud bang" greater weight than police seemed to

have given it at the time. Despite the fact that this officer, who was a Marine

veteran, a firearm instructor, and at the time an eleven-year veteran on the police

force, could not say that the bang was a gunshot, the judge found that the sound

"could have been, maybe, a gunshot." Not one of the State's witnesses testified

they either heard a gunshot or thought the sound might have been a gunshot.

      The cars in the driveway. In forming an opinion that there could have

been another person inside 81 Browertown at the time defendant was under

arrest outside, police relied in part on the presence of "multiple vehicles" in the

driveway but were imprecise as to what the State now claims is a relevant

circumstance. One officer testified on direct that there were "multiple" vehicles

in the driveway, but he said something else once subjected to cross-examination:

             Q. – in terms of the multiple vehicles that – were they
             all on the driveway, or were they close to the residence?
             Where were the location of all of these vehicles you
             mentioned?

                                                                             A-2503-18T3
                                        12
            A. I would say they were both in the driveway.

            Q. Both? Was there only two?

            A. That I recall, there was at least two, yes.

            Q. Okay. Was there more –

            A. At least.

            Q. – do you know – was there more than two?

            A. I don't recall if there was more than two. But, I knew
            there were multiple vehicles in the driveway.

            THE COURT: Well, when you – but, when you say
            multiple, you mean two?

            THE WITNESS: Well, yes; correct. Two.

            THE COURT: Okay.

            THE WITNESS: That I can recall.

Although in this way the officer tried to suggest the presence of more than two

cars, he ultimately could state only that he was sure there were two and that is

what the judge found.

      Defendant's "contradictory answers" to police. In seeking to justify the

intrusion into defendant's home for the purpose of the challenged protective

sweep, the State did not argue that statements defendant had given to police

before the sweep were either contradictory or a basis for entry into the home.

                                                                        A-2503-18T3
                                       13
The only officer who testified about having a conversation with defendant first

stated that he had not asked defendant for consent to search the home because

he believed defendant was intoxicated and unable to give lawful consent. The

officer testified that defendant had asserted, when asked, that he had turned in

the gun referred to in the October 27 order. That assertion – if true – was not

contradictory of anything else defendant was claimed to have said. When asked

about their discussion immediately after defendant's arrest, the officer provided

the following testimony:

            A. I do believe I did mention the – the weapons in
            question on the order. Because he did tell me that he
            had turned some of those gun – or turned that gun in.
            Or sold one of them – those guns. So, out – out of the
            guns that I had mentioned to him, he had – did respond
            to me.

            Q. In terms of his response, what did – what was – did
            he indicate which firearms, if any, he – he did surrender
            before your –

            A. I don't recall.

            Q. – appearance.

            A. I don't recall which weapon he said he surrendered.

      The October 27 order referred to two weapons. The order's first paragraph

revoked defendant's firearm purchaser identification card that had permitted the

purchase of two handguns: a .357 Smith & Wesson and a 9mm Beretta. The

                                                                         A-2503-18T3
                                      14
second paragraph authorized police to go to 103 Browertown to retrieve the

Beretta. No other weapon is specifically mentioned in the order, nor does

anything about the order suggest any unaccounted-for weapon but the Beretta.

So, we interpret the officer's quoted testimony as suggesting that defendant said

he surrendered one and sold the other: an assertion that is not, on its face,

contradictory.

      More importantly, the judge made no specific finding as to how the

statements attributed to defendant were contradictory. The judge only generally

concluded that what the officer attributed to defendant was contradictory. It

may be that what defendant then said was contradicted by what the police later

learned when executing the search warrant, but what was later learned is

irrelevant to what the officers may have objectively believed when deciding to

sweep the premises. See Florida v. Harris,  568 U.S. 237, 249 (2013). An

intrusion is not made legal and an officer's unexplained hunches do not ripen

into a reasonable and articulable suspicion "by what it turns up"; instead, to

borrow Justice Jackson's words, the intrusion "is good or bad when it starts and

does not change character from its success." United States v. Di Re,  332 U.S.
 581, 595 (1948); see also State v. Howery,  80 N.J. 563, 584 n.5 (1979).




                                                                          A-2503-18T3
                                      15
      From these five circumstances, the judge concluded that the officers had

a reasonable and articulable suspicion that both a weapon and other individuals

were inside 81 Browertown and posed a danger to them or others.

      We are mindful that judge-made findings are generally entitled to

appellate deference when supported by "sufficient credible evidence in the

record." State v. Locurto,  157 N.J. 463, 471 (1999). Deference is given to those

findings that "are substantially influenced by [the judge's] opportunity to hear

and see the witnesses and to have the 'feel' of the case, which a reviewing court

cannot enjoy." State v. Johnson,  42 N.J. 146, 161 (1964); see also State v.

Elders,  192 N.J. 224, 244 (2007). This deference, however, does not extend to

legal conclusions drawn from the found facts. In Interest of J.A.,  233 N.J. 432,

445 (2018). Those conclusions are reviewed de novo. Ibid.

      To summarize, the judge's determination that the officers had a reasonable

and articulable suspicion of a danger was based on the five circumstances we

have discussed. Only two of them arguably suggest the presence of a weapon

inside 81 Browertown, and the other three only arguably suggest the presence

of another person inside.

      The two circumstances that suggested the presence of a weapon inside 81

Browertown were, according to the judge's oral decision, the October 27 order


                                                                         A-2503-18T3
                                      16
and the "loud bang." The order, if accepted at face value, stated only that as of

October 27 a gun could be found at 103 Browertown. The conclusion the judge

seems to have implicitly drawn is that this would also mean that three months

later the same gun would not be there but at the nearby 81 Browertown; that

conclusion is not entitled to deference because it is entirely speculative. The

only other fact offered in support of the officers' belief that a gun was located

within 81 Browertown was the "loud bang." But the only officer who heard the

"loud bang" did not form or express a belief as to what he thought made that

sound. He didn't say it was a gunshot. And he didn't say it sounded like a gun

dropped on cement. 5 So, while we will defer to the judge's finding that such a

"loud bang" was heard by an officer, the speculative conclusion the judge drew

from that fact – "it could have been, maybe, a gunshot" – is not entitled to

deference because only the judge – not the officers – drew that conclusion.

      The three circumstances that the judge relied on in concluding that the

officers had a reasonable and articulable suspicion that others were inside 81



5
  Considering that the later search uncovered, among other things, two handguns
in a backpack in the detached garage likely suggests defendant had walked out
the back of the house and dropped the backpack in the garage, arguably making
the sound that the officer heard when the backpack hit the garage floor. But this
can only be surmised through hindsight; it was not something known or
knowable to the officers when they decided to conduct the protective sweep.
                                                                         A-2503-18T3
                                      17
Browertown – even assuming police were entitled to believe a gun was also

within the dwelling – are also speculative. An extra car in the driveway suggests

little. And the judge made no finding as to whether the officers could reasonably

conclude that the person in blue fleetingly seen entering the back of 81

Browertown was not defendant, who a few minutes later exited the front of 81

Browertown wearing a blue jacket.        The judge lastly adds to his analysis

defendant's "contradictory answers to the police" about the gun, but the

statements were not contradictory on their face and the police could not have

known defendant was untruthful about the presence of a weapon on the property

until they conducted the protective sweep.        The statements attributed to

defendant did not and could not support a reasonable decision to conduct a

protective sweep.

      Thus, in giving deference to those findings supported by the evidence

found credible, we find no support for the judge's conclusion that the police had

a reasonable and articulable suspicion that there were other persons inside the

home or that they posed a risk to the police or others.

                                      ***




                                                                         A-2503-18T3
                                       18
      For all these reasons, we conclude that the circumstances presented here

do not support either prong of Davila's protective-sweep test. We vacate the

order denying suppression and remand for further consideration.

      Specifically, we remand for the trial judge to first determine whether the

facts contained in the warrant affidavit were sufficient to support the issuance

of a search warrant once the information obtained from the impermissible

protective sweep is removed from consideration. We direct that, within forty-

five days, the judge render his determination on this question, allowing – if the

judge deems it appropriate – additional submissions from the parties. We retain

jurisdiction until the judge's final disposition of the suppression motion but only

if the motion is denied. If it is denied, defendant may file a timely amended

notice of appeal and we will enter a scheduling order for supplemental briefing.

If, on remand, the judge grants the suppression motion, then: the judge shall

vacate the judgment of conviction; our retention of jurisdiction will

automatically terminate; and the matter shall proceed in the trial court to a final

disposition.

      Vacated and remanded for further proceedings in conformity with this

opinion. We retain jurisdiction but only to the extent expressly described.




                                                                           A-2503-18T3

Tuesday, May 12, 2020

Offense 39:3-40 (f) (1) Driving while license suspended due to conviction for N.J.S.A. 39:6B-2

 Offense 39:3-40 (f) (1) Driving while license suspended due to conviction for N.J.S.A. 39:6B-2 (driving without insurance) penalty
1st Offense
- $1000 fine, and
- driver's license suspension not less than 12 months, nor more than 30 months, and
- may impose imprisonment not more than 90 days.Plus 9 car insurance points and $750 in MVC surcharges per offense

2nd Offense 39:3-40 (f) (1)
- $1250 fine, and
- driver's license suspension of not less than 12 months nor more than 30 months, and
- may impose period of imprisonment of not more than 90 days, and
- if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of all registration certificates for
the period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment
for previous offense. Plus 9 car insurance points and $750 in MVC surcharges per offense

3rd or Subsequent 39:3-40 (f) (1)
Offense- $1500 fine, and
- driver's license suspension of not less than 12 months nor more than 30 months, and
- imprisonment for not less than 10 days, nor more than 90 days, and
- if 3rd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of all registration certificates for the
period driver's license is suspended (see N.J.S.A. 39:3-40.1), and
- if offense involves a motor vehicle moving violation, then imprisonment for 10 days longer than the term of imprisonment for
previous offense.Plus 9 car insurance points and $750 in MVC surcharges per offense

Friday, May 8, 2020

What is a Civil Reservation in a Municipal Court case?

What is a Civil Reservation in a Municipal Court case?

       If there was an accident with personal injury, the ticketed driver and car owner is going to be sued. Often the lawsuit claims damages in excess of an insurance policy. If the jury award is greater than insurance, they could go after your house and assets.
       If someone pleads guilty to a traffic ticket, the guilty plea is evidence before the jury, unless your attorney files a Motion for a Civil Reservation. If the Judge grants your attorney’s Motion, the guilty plea cannot be considered by the jury in the lawsuit.
       The Motion must be made in open court and on notice to the injured person.   

Motion for Civil Reservation
Rule 7:6-2. Pleas, Plea Agreements

(a) Pleas Allowed, Guilty Plea.

(1) ……. Upon the request of the defendant, the court may, at the time of the acceptance of a guilty plea, order that the plea shall not be evidential in any civil proceeding. If a defendant refuses to plead or stands mute or if the court refuses to accept a guilty plea, the court shall enter a plea of not guilty. If a guilty plea is entered, the court may hear the witnesses in support of the complaint prior to judgment and sentence and after such hearing may, in its discretion, refuse to accept the plea.

Thursday, May 7, 2020

Offense 39:3-40 (i) Driving while license suspended for failure to respond to failure to appear notice or to pay parking judgment

Offense 39:3-40 (i)
Driving while license suspended for failure to respond to failure to appear notice or to pay parking judgment 
1st Offense - maximum $100 fine and court costs

2C:29-3 Hindering apprehension or prosecution

2C:29-3.Hindering Apprehension or Prosecution. a. A person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense or violation of Title 39 of the Revised Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes he:

(1)Harbors or conceals the other;

(2)Provides or aids in providing a weapon, money, transportation, disguise or other means of avoiding discovery or apprehension or effecting escape;

(3)Suppresses, by way of concealment or destruction, any evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence, which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;s

(4)Warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law;

(5)Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;

(6)Aids such person to protect or expeditiously profit from an advantage derived from such crime; or

(7)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).

An offense under paragraph (5) of subsection a. of this section is a crime of the second degree, unless the actor is a spouse, domestic partner, partner in a civil union, parent or child to the person aided who is the victim of the offense, in which case the offense is a crime of the fourth degree. An offense under paragraph (3) or (7) of subsection a. of this section is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against another person would constitute leaving the scene of a motor vehicle accident that results in the death of another person in violation of section 1 of P.L.1997, c.111 (C.2C:11-5.1). Notwithstanding the presumption of non-imprisonment for certain offenders set forth in subsection e. of N.J.S.2C:44-1, the actor shall serve a term of imprisonment, which shall be fixed at not less than one year, during which the actor shall not be eligible for parole. Otherwise, the offense under subsection a. of this section is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a crime of the second degree or greater, unless the actor is a spouse, domestic partner, partner in a civil union, parent or child of the person aided, in which case the offense is a crime of the fourth degree.  The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.

b.A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the Revised Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes, he:

(1)Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him; or

(2)Prevents or obstructs by means of force or intimidation anyone from performing an act which might aid in his discovery or apprehension or in the lodging of a charge against him; or

(3)Prevents or obstructs by means of force, intimidation or deception any witness or informant from providing testimony or information, regardless of its admissibility, which might aid in his discovery or apprehension or in the lodging of a charge against him; or

(4)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).

An offense under paragraph (3) of subsection b. of this section is a crime of the second degree.  An offense under paragraph (1) or (4) of subsection b. of this section is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute leaving the scene of a motor vehicle accident that results in the death of another person in violation of section 1 of P.L.1997, c.111 (C.2C:11-5.1). Notwithstanding the presumption of non-imprisonment for certain offenders set forth in subsection e. of N.J.S.2C:44-1, the actor shall serve a term of imprisonment which shall be fixed at not less than one year, during which the actor shall not be eligible for parole.

Otherwise, the offense under subsection b. of this section is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute a crime of the second degree or greater.  The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree.  Otherwise it is a disorderly persons offense.

amended 1981, c.290, s.29;1999, c.297; 2008, c.81, s.2; 2015, c.265.

2C:33-4 Harassment -Petty Disorderly person

2C:33-4   Harassment 
-Petty Disorderly person- 30 days jail   maximum
Petty DP $500 max Fine, VCCB and other penalties
And criminal conviction on your record

Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a.Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b.Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c.Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.

d.(Deleted by amendment, P.L.2001, c.443).

e.A person commits a crime of the fourth degree if, in committing an offense under this section, he was serving a term of imprisonment or was on parole or probation as the result of a conviction of any indictable offense under the laws of this State, any other state or the United States.
 Sometimes an experienced attorney can negotiate with the prosecutor to have the charges reduced to a Municipal Ordinance. Other times for first offenders we can make a motion for the first offenders program, Conditional dismissal. 
New law finally establishes a Conditional Dismissal Program in Municipal Court.Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.
The Conditional Dismissal program in Municipal Court for certain first-time offenders permits defense counsel to make a Motion that the charge would be dismissed at the end of a one year probationary period.
“This initiative will give a broader range of first-time offenders who have committed a minor offense an opportunity to turn their lives around,”  “The program will help foster participants’ rehabilitation and future success by giving them appropriate penalties without having the offense be a part of their permanent criminal record.” This law also helps Police and Prosecutors since it requires a guilty plea, thus reducing the need for trials and officer testimony.
The law allows future Dismissal for many non-drug offenses, such as disorderly person’s offenses, which have not been able to participate in similar programs before.
“First-time offenders who are screened to meet the eligibility requirements will be able to use the program to avoid having a record that cannot be expunged until years after the sentence is served 

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500