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Overview of the New Jersey Criminal Process: From Arraignment to Sentencing in a Post-COVID World

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Overview of the New Jersey Criminal Process: From Arraignment to Sentencing in a Post-COVID World

This program outlines the New Jersey criminal process from beginning (arraignment) to end (sentencing). We will highlight what New Jersey attorneys need to know to advise clients at various stages. We will also examine how the process is being handled post-COVID with the utilization of the Zoom platform and electronic filing.

Transcript

Hello, my name is Georgina Pallitto. I'm going to give you an overview today of a New Jersey criminal process starting from the very beginning, going through arraignment and to sentencing. And we're going to focus on how this is being utilized right now in the state of New Jersey, in a post-COVID world, specifically with the interactions of Zoom. I was a former county prosecutor. I am currently a municipal prosecutor and a defense attorney. So I'm hoping that I can give you perspectives throughout this from both the state side as well as defense side. So to begin, let's talk about who the participants are. Who are you going to encounter in the courtroom? If you are defense counsel, you're going to have your client who's a defendant. You're going to be you're going to have the state, who's the prosecutor, who's pursuing the charges against them. Then obviously, you'll have defense counsel, the judge, the court clerk who monitors the recording, whether it is by Zoom or in person. And then you have the criminal division manager or the court administrator. And essentially this is the person who's in charge of scheduling the cases or what's going to be heard at what time. So normally when you enter your appearance, you'd enter it with the criminal division manager or the court administrator, because at that time you might not know who the judge is yet. You might not know who the prosecutor is. So that's who you would enter your appearance with. All right. So let's discuss jurisdictions. In New Jersey, crimes are handled in the Superior Court. In New Jersey, we call these offenses indictable offenses and the federal system in New York and in other jurisdictions, they refer to them as felonies. However, in New Jersey, we refer to them as indictable. These are considered crimes. A first degree crime is the most serious in the state of New Jersey, and that puts your exposure at 10 to 20 years, 10 to 20 years. Incarceration and state prison. Second degree crimes expose you to 5 to 10 years in state prison. Three third degree crimes expose you to 3 to 5 years, and then fourth degree crimes are up to 18 months. Any sentence below a year. So 364 days or below will be served in the county jail. Anything over a year goes to state prison. So on a fourth degree crime, you could be sentenced to either 18 months, which would then be state prison or a year, six months or whatever in the county jail. You know, the differences between the county jail and the state facilities are the county jails are essentially more of the screening facilities. So they're not going to have as many programs and offer as much to the inmates as a state jail or a state prison. For example, when you go to state prison, they'll have GED programs, they'll have work programs, things like that. Usually the facilities are nicer. So a lot of times if a client is going to get sentenced to a year, they'll ask for that 364 plus a day. And what that does is it enables them to serve their term at a state prison versus the county jail. Now, these are the only crimes in New Jersey. Anything below this is considered a disorder or an offense. And offenses are handled mostly in municipal court. The only time a disorderly persons offense or an ordinance violation would be handled in Superior Court if it is part of an indictable offence. So if you're charged with, say, a first degree crime and a disorderly persons, that case is going to be handled together and it will be heard in Superior Court. Other courts in the busier percentages like Essex, Camden, are higher crime. They have what's called a remand court. And essentially this is a municipal court, but it is at the county level. So you have county prosecutors and county state judges handling your case, even though they're not crimes or indictable offenses or disorderly persons. It's just kind of a mechanism to help with the inundation in the municipal court. But municipal courts handle what we consider in New Jersey, non crimes, disorderly persons, a disorderly persons offense, also known as a DP. You're looking at an exposure of up to 180 days in the county jail. Again, because we're under 364 days, you can't go to state prison. So these are all going to be sentenced in the county jail. Then moving down, you have a petty disorderly persons offense, also known as a PDP. And the exposure for this is up to 30 days in the county jail. And then lastly, we have what are called ordinance violations, and these are town or city violations. So every town, every city, every municipality has its own code of certain ordinances. Usually these are low level things, like I always like to use the example of an open container urinating in public noise. Those are ordinance violations. They're just fines. They don't expose you to any jail time. And those are all going to be handled in the municipal court. So New Jersey has court rules which control our court system. Part three of the Court rules govern the criminal practice. Part seven are the rules that apply to municipal court. Now, some of the municipal court rules will actually refer you back to part three. The rules govern criminal practice. Now, remember municipal court because they're not crimes, it's considered quasi. Some some some offenses are considered quasi criminal because you could go to jail, for example, a DWI, a driving while suspended. It could expose you to jail time. So they're considered quasi criminal, however, because they're not crimes first, second, third or fourth degree, they're civil, which then presents a whole different set of rules. And that's governed by part seven. For the most part, the rules, the part seven, the rules that govern do mimic part three. It talks about discovery obligations of the prosecutor, of defense counsel. However, part three is definitely much more elaborate in that it talks about juries, grand juries, indictments, and all things that you would never encounter in municipal court. All these court proceedings are recorded and monitoring monitored. Now, I would say. Since. About 2016 2015. The state has implemented what's called E courts. E Corps is an electronic filing system for Superior Court. It controls not only criminal court. Also now family civil. Initially criminal was the first one. And then as the years have gone on, different. Different fragments of the court have now also become electronic. So before e courts used to have to send your motion to the civil division manager, you have to send them several copies. You'd have to get a stamped copy back and then you'd have to serve it upon your adversary and the Court. Those days are over. Now you simply file a PDF through e court and automatically get stamped, filed and served upon all the parties. So it definitely has advanced the technology and made it a lot easier to be a practitioner now. Municipal courts came later. Would Jed's, Jed's and PC Sam. So Jed's is essentially the equivalent of E courts where again, instead of now sending it down to the court and having it filed and then manually serving all the parties, you just upload that PDF and the judge, you can upload all your exhibits, your certifications, your proposed order, and it automatically gets stamped, filed and served. Pc Sam is the system which controls essentially all the information that regarding the defendant the case the bail the prosecutor. Party information. Unfortunately, PC Sam is only available to the court and to prosecutors. It is not available to defense attorneys just yet. Pc Sam became active, I would say, in about 2020, 2019, and it's just a plethora of information because you can actually click on it and see all the court appearances, and that's the same for courts. The only difference is. Courts allows defense attorney to see it, whereas PC Sam is for municipal court, and defense attorneys don't have that access. It also links to a defendant's driver's abstract. This is something which I believe started about two years ago, and it's super helpful for prosecutors because prior to having this access, you would literally have to have the court staff or your police department run a driver's abstract every time you had court, because you never knew what happens between the last court date and this court date. For example, they picked up another DWI, another driving while suspended. Because all that impacts with. Can have impact on what the offer is going to be. So now it's as simple as a click and it really has advanced the way that municipal courts can function. So municipal courts right now in New Jersey are primarily being run by Zoom. It's Zoom appearances. Some courts are requiring defendants to come in to plead guilty for DWI offenses. However, there's no directive or order from Trenton saying that that's a requirement. I personally don't think there's any reason why a DWI plea can't be taken over Zoom. However, it is the practice of some municipalities for the most part. Like I said, everything that's not a crime of turpitude is supposed to be handled via Zoom. And again in municipal court. Most of the offenses are just fines. They're not looking at a jail time exposure. So if you have a traffic offense, they're not making you go into court. You're going to log into Zoom. State courts, on the other hand, they were primarily zoom for several years. I would say the last year they started to require more cases to come in in person. Personally, I think that this is not only a waste of time, it also creates unnecessary risk by bringing all these defendants. So if you have a 20 codefendant case and now you have all these people coming to court together, plus their attorneys, I mean, what could be a status handled over Zoom and a half an hour now becomes a three hour meeting at the courthouse, not to mention driving. They're driving back parking and all that fun stuff. So a lot of judges are conducting most of their statuses via Zoom and then things like testimonial motions, plea cut off, which we'll all discuss later on in this presentation. They are making them come in. On the flip side, District court is completely opposite. And I know today we're talking about New Jersey. But just to give you an idea. New Jersey District court is still operating primarily via Zoom for everything pleas, arraignments, even sentencing. So now we're going to discuss the burden of proof. And this is the requirement of continuing with charges or finding someone guilty. So the highest level is beyond a reasonable doubt. And this is defined as something that's firmly convinced. So I when I like to tell people how I define reasonable doubt, I say it's like 95%. You're 95% sure that this happened. It's very, very high, whereas preponderance of the evidence is much lower, it's more likely or not. So that would be more like a 60, 40, 60% believe they did it, 40% believe they did it. And then we have probable cause. Probable cause is a reasonable belief that the person committed the crime more likely or not. So, again, probable cause is a reasonable person standard. And we're going to discuss this later on, specifically in the valuation of charges. Then we have the lowest level of burden of proof, which is reasonable suspicion. And reasonable suspicion is a police officer standard. So a police officer has reasonable suspicion to believe that this person committed the crime. So it is the lowest. All you need is an officer to state, I believe, X, Y, and Z. Then we have the complaint. So if reasonable suspicion is found, the the person can be detained. If probable cause is then found, they can be issued a complaint. This is the first step in the criminal process and this is what we call the charging document. And this is controlled by rule three two, dash one A, and this requires a finding of probable cause by a judicial officer. So what would happen is a police officer has reasonable suspicion to believe that Sally hit Jack. So they are going to detain Sally and they are going to perhaps try and question her, perhaps look at Jack's injuries, if any, and they're going to write up a report and gather their investigator, gather their evidence. Then they're going to present this evidence in a charging document. The police officer is actually the one that drafts the complaint. Now, everything is computerized. When I first started practicing criminal law, it wasn't we actually used to have like a five inch three ring binder that you would scroll through, find the charge, and it would be like a template of language to use. Now everything is computerized. They literally type in the charge and the template comes up and they just have to plug in the defendant's information and then specifics that link them to that crime. So also in the complaint, they would list, okay, the victim had a cut on her face. There was a confession by the defendant. You know, things along those nature. Then this complaint gets presented to a municipal judge. It's usually a municipal judge and it's usually done telephonically. And here's a copy of all the documents. Now, again, because everything is computerized now, the judge would have a tablet usually in front of him or her, and they would be able to review the complaint and then they would have a phone conversation with the officer who's authoring the complaint. And that officer would have to day and sign their name. And then the judge would either find probable cause or not. Now, remember, probable cause is now a reasonable person standard. So does a reasonable person believe that it's more likely or not this defendant committed the crime based on that probable cause is fine. The judge signs off. Then we have a summons versus a warrant. So a summons and this is very important since bail reform, because a summons, you do not have to go to the county jail to be processed. If you're charged on a warrant, you must be remanded to the county jail for processing. And that usually means you're probably going to spend about 48 hours there. Certain offenses are presumed to be issued on a warrant. For example, any first or second degree crimes have to go on a warrant. Also, DV offenses have to go on a warrant. And now these are all things that happened when bail reform came into effect in 2016. Prior to bail reform, New Jersey used to have bail. So it would be based off of sometimes the facts of the case, the severity of the injuries, and there would be a monetary amount. Now, what bail reform is, you're either in or you're out. And that's why the distinction between being charged on a summons or a warrant is so important. Now, the other thing which could happen, and it's quite scary actually, is you could be charged under a citizen's complaint, which means instead of the police officer drafting the summons or the warrant, a citizen literally just walks in to the courthouse, says this happens. A clerk at the court then types up either a summons or a warrant and they would sign off as finding probable cause or not. And then it gets issued. And unfortunately, this is often used as a sword and it's often used maliciously. And I find it very common, especially when there's some kind of like friendship or familial relationship between the parties, because perhaps something happened and you didn't call the police at that time. But then the next week, the next month, even six months later, you decide. Now you want to press charges. You can just go walk into your courthouse and get a citizen's complaint and this person can be dragged to court with nothing further than this person's sworn statement. So that is quite scary. And most of those and the other thing is that they could charge you what an indictable offence, so you could be charged. And a big one is terroristic threats, especially with like cyberbullying and the Internet and Facebook and all those different tools. You know, it's more common now and even having a cell phone where you can record something. So if I'm having a conversation with you and in a fit of anger, I say, Ooh, I. It just kill you? And I record that. And then three months later, you didn't do something that you I wanted you to do. I can literally take that recording down to the courthouse if you're miss capacity. And now I can get a third degree terrorist threat charge against you. And again, because it's a third degree, are now in Superior court. So it is very scary. But it is another way to get a summons, a warrant in the state of New Jersey. So once charges are levied and I'm talking about crimes now, so indictable offenses, you're going to have your appearance before central judicial processing. And this is what we call CJP, and this is within 48 hours of the remand. So if you get charged on a warrant and you get remanded, you must be heard. And CJP within 48 hours prior to bail reform, CJP was only held Monday through Friday. Now it is held seven days a week. So that's really beneficial to defendants because if you got locked up on a Thursday or Friday, you were sitting in the county jail all weekend. Now, if you get locked up on a Thursday or Friday, you could be heard on a Saturday or Sunday. And then if there's a holiday on Monday, you would sit till Tuesday. So this was a real benefit, I think, to bail reform. Cjp Court is done virtually. It's done via Zoom still. And again, that's another benefit. Prior to COVID, we would have to go down to the jail, meet with our client, then go over to the courthouse, sit there, wait for our case to be heard. So you could be. A lot of times CJP Court is in the afternoon and you could it could take up your whole day. Now it's as simple as logging on about a half an hour before your case. A lot of times they will the jail will put your client in a room so you could speak with them over Zoom. Or you can arrange for a phone call prior to the court appearance, and you're pretty much in and out of there in less than an hour. So again, this is just the benefits of technology. And one of the benefits that quite frankly, COVID has put upon us. So let's talk about CJP specific. So what's going to happen in CJP the minute that your client hits the county jail or the defendant hits the county jail, they're going to be assigned with a pretrial officer. That officer is somebody that works for the court in the probation department, and they're going to do an assessment and interview of your client. A lot of times this happens without you even being notified that it's happening without you even maybe being notified or retained. So I would say nine out of ten times, you're not going to be present for this conversation. It could be done telephonically, again, before COVID. It was actually done in person. The pretrial officer would meet with every defendant at the jail. Now, it's primarily done via Zoom or more commonly telephonically. Essentially, what the pretrial officer is going to do is they're going to ask your client some information, where do you live, where do you work? Very pedigree information. How many dependents do you have? They're also going to run your criminal history. We refer to that as the CCH, and they're going to look at what your past crimes have been, if any, what any open charges you have. And they're also going to look at if you've ever had a bench warrant or a failure to appear. And the reason that's so important is because one of the things that they're going to evaluate is whether this person is likely to appear in court. So after they reviewed all of this, as well as the complaint, they're going to make an assessment and they're going to score you on a score of 1 to 6, one being the lowest, six being the highest. And then they're going to make a recommendation to the court of either to detain or release. And again, now after bail reform, it's either detain or release. We're no longer talking about a monetary bail number, 10% or not. We're just saying either detain or release. At the same time, the prosecutor is going to be able to review the complaint and the police reports, and they're going to make a decision as to whether they're going to move to detain or defer to pretrial or move to release. Usually, the state will agree with the pretrial officer. There are definitely times where the pretrial officer will recommend release and the state will recommend detention. And then it's going to be up to the judge. So the judge makes a determination. And then if the person is determined to be detained, you can then file a detention motion, which we'll talk about next. But just one little caveat, is that there. Are certain crimes, which there was a presumption of detention. So the judge's hands are a little tied as well as the state. I mean, they could be the best person ever. But due to the nature of the offense, it's a presumption that they must be detained. So this is an example of the public safety assessment, the PSA. As you can see, there's two scoring at the top. This is the document which is going to be tendered by the court, by the pretrial officer. First of all, at the top, you could see that there is a recommendation of no release in this case right there at the top box. They're going to say whether we recommend to release or detain. Then they're going to go through the scoring. And the scoring is essentially with both the prosecutor and defense counsel is going to argue to the judge. So here, as the first scoring is a failure to appear. And this is where I said they're going to look at any bench warrants failure to appears. So, for example, this individual had several favorable to failure to appear and in fact at this time had bench warrants. So he got a high score. However, all of those failure to appear and bench warrants were on municipal court cases. And quite frankly, the reason was, is that they had his mother's address and he didn't live there anymore. So they were mailing the court notices to his mother's house and he wasn't getting them. And that would be something that you would argue to the judge as defense counsel. Then you have the risk scale new criminal activity. So this is where you talk about essentially their recidivism. If this is the first time they committed a crime of this nature, or is it the fifth time, is this the fourth time that they've been arrested in the last year, or is this the first time they've been arrested in the last ten years? So three is considered pretty low. And then underneath it goes through. Prior indictable convictions, prior violent convictions, and it has the current charges. As you could see from the current charges, when you go over to degree, there's only one indictable. So this case right here was a motor vehicle stop where one bag of cocaine was found. So one bag of cocaine is a third degree possession and everything else was disorderly persons. So what ended up happening with this case is the county just amended the third degree to a disorderly persons and sent it back to municipal court, which is interesting because the case then, like I said, ended up going back to municipal court. Yet, as you could see here, the pretrial officer was actually recommending no release. This continues to go on. Now, this is going to talk about if they're currently on pre-trial monitoring any pending charges. And as you could see, this individual had a lot of pending charges that were old at this time, 2016, 2017, 2018. So he did have failure to appear. What also happened during this situation is the attorney that he had a private attorney on this case and the private attorney got disbarred. So not only were the notices going to his mother's house where he hadn't lived for many years, but the notices that were going to his attorney was going to a suspended attorney. So he wasn't receiving notification, any offenses. Needless to say, after this arrest, he then resolved all of these cases in municipal court and they were all resolved. The fines, again, when you look down at degrees, they're all DPS, none of them are indictable. So although it looks voluminous, you know, the severity of it is minor, then they go through any disorderly persons convictions. They also go through prior indictable convictions and prior violent convictions. If you're here on a violent charge and you have a prior violent conviction, obviously that's going to go against you and towards detainment. And then right here you see the prior failure to appear at the bottom. He had none in the last two years because he's had bench warrants at this time for almost four years in municipal court. So he it was so old, you know what I'm saying? It's not like it was something that was happening currently at this time. Then go through right there all his failure to peers, I mean, 2016, 2017, 2018, and here we're at the end of 2020. So at the end, the judge ended up releasing him. All these charges ended up going to municipal court and they ended up resolving to fines only. However, if this person was detained, the next step would be for a detention hearing to be filed. The prosecutor and this is controlled by rule 34a and the prosecutor files a motion to detain and must be heard within 72 hours. Again, these are all new rules pursuant to bail reform. As a courtesy, both the state and defendant can be permitted a three day extension of up to 72 hour time period as a right and for good cause. They'll extend it for five days. And really what this is, is usually as defense counsel, if you're asking for an extension, it's because you need to gather your own exculpatory, exculpatory evidence at a detention hearing. Defendant now has a right to all the discovery relied on and available to the state during the detention hearing. So if there was a recording of his or her statement, if there were pictures of the crime scene taken, defendant has a right to this. They do not have a right to that. And CJP Court The case is then presented to a superior Court judge. The thing about CJP is it's usually a municipal judge sitting in a superior court capacity. Now you are before a real superior court state appointed judge. And the difference is, is that a municipal judge is appointed by the mayor, the town council. There's really there's no interviewing or process of going through and going through the assembly, going through the Senate, all of that. It's kind of like, I hate to say it, you're friends with the mayor or poof, you're a municipal judge. Whereas to become a superior court judge, you have to go before what's called JPAC. Then you have to go before the assembly, the Senate, after you get approved, then you go before the governor, and then you become a superior court judge. So it's much, much more difficult to become a superior court judge. There's a lot more background investigation, interviewing process. So I hate to say it, but Superior court judges, in my opinion, are obviously better. And you want your case when you're talking about whether you're going to be detained for the pending of your case to be heard by a superior court judge and not a municipal court judge. Superior court judges are are appointed. And then if they get tenure, they're appointed for life. They review tenure at seven years, whereas a municipal court judge is literally a contract employee with the municipality. These contracts are usually three years. So the presumption then is of detention and release. It's based upon the offense here. The state's going to bear the burden. So the state is going to have to prove one of these grounds. Assurance of defendant's appearance, safety of community, obstruction of the criminal process. So they must prove that for one of these reasons or all this defendant must be detained. Then the position of the state. Will we put all in moving documents? It's going to be submitted and a motion and a motion and filed. And the biggest thing is that at a detention hearing, there's going to be witnesses. So this is another reason for these cases usually being delayed because perhaps defense wants to put a witness up, perhaps the state wants to put a witness or the state must put a witness up and the witness isn't available. So they might ask for that extension. The next thing that we have are probable cause hearings. So probable cause is governed by rule three four, dash three. And this is a finding, again, of it's more likely than not based on a reasonable person standard that this individual committed this crime and the state bears the burden of proof. So a lot of times you can wave well, you can wave probable cause as defense counsel. And a lot of times it does happen. However, there are certain situations where there's just no probable cause, so they're not going to waive it. And we want a probable cause hearing. And essentially, then it's a determination by the court that there's probable cause to believe that an offense has been committed and the defendant has committed. And what's going to happen is the state's going to have to present a witness or present proof to prove that there is probable cause for this charging document. If no probable cause is found, then the complaint is dismissed. Next step in the process is Pre-indictment Court. And again, we're talking about crimes, We're not talking about municipal court. So pre indictment court, also known as pick, pick, pick, court, some vicinities refer to it as early disposition court EDC. This now is still before a superior court judge and it's when the state is going to present you with their lowest offer. At this juncture, you do not have a right to complete discovery. When I was a prosecutor and assigned to pick court, I would always give give them as much as I had because it's in my interest. Let me show you all my cards, because the hope is, well, if I show you the overwhelming evidence, you then can get your client to plea. Why would I not give you everything that I have? But if it's accepted, the complaint then turns into an accusation which we'll talk about it a little more detail. And if it's rejected, then the prosecutor makes a decision of whether to remand the charges as disorderly persons, the municipal court to present it to grand jury for indictment, or they can even dismiss it. And this is also a time where defendants can apply to various different programs, which will also discuss later. New Jersey has an escalating plea offer, which means this offer is going to be the sweetest deal you're going to get. It's the lowest offer. From here on, it's going to escalate and it's going to get higher. And that's the same philosophy as the New Jersey district courts. So one of the the diversionary programs is called Pretrial Intervention PTI, and this is governed by N.J.S.A two C 4312 and this is supervisory treatment program. And what I like to explain it to my clients is it's kind of like probation, but not as vigorous. And if you satisfy it and it's usually a term of one year, then at the end your case is dismissed. And under the new expungement law, once the case is dismissed, you can automatically file for an expungement. So essentially it's like stay out of trouble for a year. And then at the end we're going to dismiss your case. You can expunge it and we're going to act like this never even happens. So it is an opportunity to avoid ordinary prosecution by receiving early rehabilitative services. The goal is to deter future conduct. So it's ordinarily limited to first time offenders. But there are some exceptions. It has become more, I guess, encompassing of different individuals which can apply over the years. However, there are certain offenses which are completely barred from admission. For example, official misconduct. Domestic violence is usually for victimless crimes, financial crimes, things along those nature. So the process is you apply. The defendant then gets reviewed by probation. Probation makes a recommendation to the prosecutor and the court. The prosecutor then makes a recommendation to the court, and a decision is rendered. If the decision is not in your favor, either party can appeal and under PTI and Superior Court, a guilty plea is required for admission. Back when I started practicing criminal law, that was not a requirement that we would call it no plea PTI and you could just apply. So it was even a sweeter deal. Now they changed it and they do require a guilty plea. But again, if if you satisfy PTI successfully, your charges are dismissed. So essentially that plea allocation is irrelevant. Another diversionary program is conditional dismissal, and this is governed by N.j.s.a two C 30 6a1 And this is another type of super, super supervisory program. It's just like pizza pie. I explain it as it's pizza pie for municipal court. This is something fairly new, which I would say has come about in the last seven or eight years. And I think it's great because, you know, sometimes I would have a client who was charged with a fourth degree crime and was eligible for PCI, and I would have the case I would request the case to be kept a superior court so they can get the benefit of PTI because we didn't have this program conditional dismissal. So it was actually a detriment to go to municipal court. They would get a more severe penalty. Now, with conditional dismissal, it doesn't make a difference. You have the same benefits of PTI from Superior Court and Municipal court. There's two requires a guilty plea and it's the same thing and results in successful completion results in the dismissal of charges, both conditional dismissal and PTI could be extended. So for example, if your client or the defendant is testing dirty positive on a drug test or missed an appointment instead of it being completed in one year, the judge can order for it to be extended another year. So PTI is not just limited to one year. Conditional dismissal is usually six months to a year, but the same thing the judge could keep extending it. In fact, there's many times where I've had clients, especially when it comes to drug charges, that they've been on PTI for three years until they successfully completed or are terminated, whereas initially they were only given one year. But the court kept giving them an opportunity to extend and essentially do the right thing to successfully complete it. Then we have conditional discharge. This is governed by n.j.s.a two C 4313. Conditional discharge is very similar to PCI, except this is for drug offenses. This was very big for marijuana charges. However, now that marijuana is legal, you don't really see it for that. You see it now for more of the low level drug possession charges. And this does not require a guilty plea. You just get screened. And if you get screened and the screening involves a drug test and an interview, what pretrial? So if you test positive and you tell pretrial, you know, I have a problem, they're going to nine out of ten times, put you in the conditional discharge program. And it's the same result as PCI. If you successfully complete it, you get the dismissal of charges and you can then file for an expungement. And it's as if this never happens. Now, the thing that's interesting with conditional discharge is they require most time they require you to test positive or to admit that you have a drug problem. But sometimes by the time they get to this interview, the person's clean and they're no longer using. And I've had situations with clients where, well, they said that they don't have a drug problem and they test a clean, so we're not going to admit them to a conditional discharge. And quite frankly, that's not fair. They should lose this benefit because they got themselves together without the need of the court's intervention. It's really not fair. But essentially what they're trying to do is they're trying to keep the dealers out of this program is really something for the users. So now let's talk about an accusation versus indictment. So an accusation is your waiving of your constitutional right to a grand jury presentation. And this is governed by rule three, colon seven, dash two. So an accusation is that you sign off and you agree to these charges, which normally would be in an indictment, and you're agreeing to them without going before a grand jury. Whereas on the flip side, if an indictment is rendered by a grand jury, so a grand jury is up to 23 members, and it's when the state presents their cases and every single count needs to be voted on by the grand jury, by a majority. And only then can an indictment be returned. And this standard is probable cause. So grand jury is governed by rule three six. It's a constitutional right. Again, this is a majority vote on each and every charge. And what do they vote on? So every single count, the grand jury is going to vote whether to indict. Remand to municipal court or they can dismiss AK No, Bill. The thing about grand jury, which is quite scary, is that hearsay is admissible. So quite frankly, I can have an agent of the prosecutor's office sit down as my sole witness, be sworn under oath and read the police report of someone else's into the record or just answer questions, leading questions that the prosecutor asked them. And that's admissible evidence and that could be the entire case. And in fact, a lot of times that is what prosecutors will do, because I'm not going to put my my star witness on the stand under oath so that when we go to trial or we're doing motions later on, you now have a prior statement that you can impeach him or her with. So that's why the saying that a hamburger or a ham sandwich can be indicted really comes about because the threshold for evidence admissibility is so low, I don't have to present any evidence besides this hearsay testimony in state court. This is recorded and it's discoverable. And every grand jury has a four person who has done the person that essentially signs off on the indictment and endorses whatever charges are found to move forward in district court. This is not discoverable. The discovery rules and district court are much, much, much, much, much more conservative than New Jersey, which is not only a liberal state, but also state courts in general are more liberal than district court. And that's, quite frankly, why it's very hard to win a case in district court where a state court you kind of have a chance as a defendant. So after an indictment is returned, we then get scheduled for a pre arraignment conference. This is just the retrieval of initial discovery. This is still being done pretty much by Zoom. It's just, you know, did you get the complaint? Did you get the police reports? Yes. Okay. Now is schedule it for arraignment. Arraignment is when the charges are revealed against the defendant formally. So what would happen at arraignment? This is governed by rule three nine. Dash one is the defendant's going to formally acknowledge the charges. They're going to enter a plea of guilty or not not guilty, and they're going to acknowledge receipt of that initial discovery or not. It's just, you know. A formal step in the process of making sure that the defendant knows and is aware of what charges are now against him. Again, the arraignment, which would be the indictment, can be very different than what the complaint charge, because at this point, charges could be added or the charges could be removed or amend it by the grand jury. And again, New Jersey is governed by escalating plea offers. So you're supposed to get a plea offer at your at a post indictment, plea offer at arraignment. Sometimes the state can reserve but nine out of ten times due to the escalating plea offer. Now, this plea offer is going to be higher than what was offered to you pre indictment. Also, this is when Brady obligations are signed and begin to. Are imposed formally. Brady is a case which requires the state to present any exculpatory evidence. So Brady is a case that requires the state to present any exculpatory evidence. So if there's a statement saying that, no, Sally didn't do this, I saw Joe do it and the state is not providing that to you, that's a Brady violation. And this will all get notified on the record formally at arraignment. Again, most of these are being done via Zoom. It's very quick. They take 15, 20 minutes. So to have people go down to a courthouse for this and wait hours is a waste of time. So this was another big benefit of COVID. Now, after the arraignment, we're going to have status conferences. This is governed by rule three, colon 921. And these are just essentially informal meetings. What the court, although they're put on the record and you're just going to update the court of what's going on, any discovery, any issues, discuss some pretrial motions. There's various pretrial motions just listed there. You can also update the judge on any defenses. If defense is going to put forward an affirmative defense, it must be tendered in writing with notice to the prosecutor pursuant to the court rule. You also can discuss expert witnesses a lot of times during status conferences. You might not know if you're going to retain an expert witness, but it might be something you're contemplating. So you just let the court know so they can figure out scheduling. Then we have motions. So motions there's two different motions. It could either be testimonial where somebody's going to come sit on the witness stand, or there could be non testimonial motions which are based off of papers, things that the judge wouldn't really need to hear anybody supplement to make a decision. Some of the very common motions is a motion to dismiss the indictment. This is controlled by State V Hogan and the standard is that it was manifestly defective or palpably defective. And that means that something happened in the grand jury that makes this indictment tain it and we must throw it away. Then we have Wade motions, and this is regards to identification. Whether it was a suggestive identification of the client. Then we have the famous Miranda hearings in this regards suppression of statements. And this has become ever so relevant now with the requirement of body cams as of June 2020. I can't remember if it's 21 or 22. New Jersey made it require that every single law officer must have a body cam. So now Discovery is so voluminous because you're getting all these videos and you're also now being able to really see what happens at the scene. So when your client tells you that they took me and they threw me in the back of the cop car without, you know, reading me my rights, or they just started questioning me without giving me reading me my rights. You can review the body cam footage and see whether that's true or not. Another type of common motion is a driver hearing, and this is regarding integrity or audibility a sound recordings. So what happens when there's a sound recording? The state must provide a certified transcript. And then you would essentially use that throughout the hearing. So this is another example of where a witness might not be required because what you essentially would do is you would play the audio and you have the transcript and the judge would make a call. And a lot of times, especially if it's a wire or it's something recorded off of a cell phone, there's large fragments which are inaudible and if it's inaudible and this transcript is not reliable, the whole statement should be discarded by the judge. Another thing is motion to suppress. And this again, is evidence that is seized with or without a warrant. There are different requirements under the Fourth Amendment. This is a federal right as well as state right. And then we have competency, and that's whether the defendant is competent to stand trial where they incompetent at the time of the offense and competent. Now, are they vice versa or are they just incompetent in general? And this requires different examinations by whether a psychiatrist or psychological and then the determination by the court, they're going to want to hear the testimony of whoever evaluated them. They're going to want to review the reports, and then the court will make a decision as to whether this defendant is competent to stand trial after you get through the motions, practice and all of that is resolved, you then have a pretrial conference. This is governed by rule three, colon nine, dash one. And this is a time where the judge is now going to start preparing essentially the case for trial. Are all the motions resolved? What's the final offer? Let the defendant know very clearly this is your final offer. This is your exposure. This is also a time where the judge is going to give Hudson warnings. Hudson warnings are formal warnings put on the record to the defendant, letting him or her know that if you don't appear for your trial, we can proceed without you there. So if you choose not to show up at trial and that seat is empty, we will still have the trial and you could still be found guilty. We also start to review jury instructions at this time. And then last, the last step before trial is plea cutoff. And this is when you select a trial date. Every party is going to outline how many trial days they think they need to participate to present their case. It's also going to be an outline of anticipated number of witnesses. Obviously, that's going to correspond with expected trial dates. And once the plea cutoff is signed, there are no longer allowed any pleas to go through without having the presiding judge of that division, criminal division approve it. So plea cut off is like we're going to trial, give me a date. And now anything that happens from there on requires essentially the supervisor of the criminal division to approve it. Then we have trials in Superior Court. You have a right to a jury trial, and that's 12 jurors. Or you can waive a jury trial and have a bench trial. Quite frankly, juries are scary because they don't know the law. And this may be the first time that this person is ever even exposed to something of this nature. And you're putting the defendants life, you know, their custody in their hands. So, you know, there's been many situations where when I was a county prosecutor, defense counsel would waive a jury and would instead ask for a bench or a bench trial, because the judge is somebody who's a lawyer who's well versed on the law. You would be you would hope and who can understand what the facts are that are relevant and which are irrelevant and see through the minutia. But at the end of the day, it's up to your client. And if your client wants a jury trial, then they have a right to a jury trial. The first step is the voir dire ing. So right now, New Jersey, they were initially doing this all remote. Now they're doing a hybrid, which means the jury questionnaire is a series of questions that it's like screening questions that every juror is asked. This is being done via zoom on top of the normal jury questionnaire questions. Each party is allowed to submit supplemental questions. So these supplemental questions you want to really tailor towards the crimes charge. So, for example, if you're if your client is charged with sexual assault on a minor, you might want to ask for some of these supplemental questions if you have any minors, if you're a parent, questions along those nature that are not in the normal jury questionnaire. Again, this is a pilot program that New Jersey is doing where it's a hybrid. So after they do the jury questionnaire, virtually, they then have them come in to do additional questions and essentially put the jury together. At the at the trial juncture is also when the state and defense counsel is going to review the verdict sheet and the jury charges. This will be an informal meeting in chambers. That's usually the law clerk who's the judge's assistant and the judge. And just going through the information that's going to then present it to the jury at the end of the case. So presenting and defending a case at trial. In a criminal trial, the state bears the burden. Now it must be a unanimous finding of beyond a reasonable doubt. And remember, we talked about and beyond reasonable doubt was the highest burden. It's like 95, 99%. And it goes to each count and it must be unanimous. So all 12 people must find either guilty or not guilty. The defendant has absolutely no burden and they have a right to remain silent, which means defendant could sit there the whole time, say nothing, call no witnesses. And that's the right. It's all on the stage. This verdict is then announced by the jury for foreperson. So different types of verdicts. We have a unanimous verdict on all counts, which would mean if there's three counts, they find him guilty on all counts or not guilty on all counts. Then we have what's called a mixed verdict. They can be found guilty on one count and not guilty on to the other. Thing is a lesser included offense. So certain offenses have lesser included offenses. For example, a robbery is a theft with a simple assault, a lesser included. A robbery is theft and simple assault so they could find not guilty on robbery, but find guilty on theft or or they could find not guilty on robbery, but guilty on simple assault. And then you get these crazy verdicts where they find not guilty of robbery, but they find guilty of simple assault and theft, which is robbery, but they don't want to find the robbery. And this is what you know, this is why it's so scary what juries and this is the other reason why as attorneys, you get to decide whether you want to have lesser included offenses or not. And I think for the most part, practitioners don't like the lesser included. They want an all or nothing. It's either robbery or it's not robbery. Then the other scary thing is a compromise verdict. And this would be the same thing. This is like aggravated assault. You have a stabbing and so it's aggravated assault and then you have weapons charges and they find the jury could find them guilty of the aggravated assault, the stabbing, but not find them guilty of possessing the knife, which, as we know, makes no logical sense because how can you stab someone if you didn't possess the knife? But a lot of times these jurors just want to get out of there. And they've been sitting there for weeks hearing this case and they give this compromise verdict, which makes no sense, but it's a verdict and they're able to convince each other to go along with it. So these are the other risks that are all associated with doing a jury trial. So after the trial is concluded, if your client is found guilty, they're going to go on to sentencing. You'll get a sentencing date. The judge will also make a determination whether they be remanded pending sentence or they're released. So the first step in sentencing is now they're going to be interviewed by the court, again, by somebody from the probation department, and they're going to tender a pre sentence report. So at this juncture, the defense attorney has a right to be present at the pre sentence report interview. I always am present. I personally think it's an ineffective assistance of counsel to not be present and let your client answer questions to the court without you there. And again, just like with the the interview for the pre sentence assessment, there are the public safety assessment. They're going to ask you everything under the sun in regards to your family, your work. And then they're also going to ask you if you have any comments to make on the case. A lot of times it's a plea. So you say you stand by the terms of your plea, you're remorseful or the defendant can refuse to make a statement. But these are all the reasons why counsel should always be present. This is being done nine out of ten times telephonically with since COVID. Also in the pre-sentence report, the pre-trial officer is going to calculate any jail credits that the defendant may be that the defendant could get. Also, at the pre sentence interview, the pretrial officer is going to calculate any jail credits. And these are days that the defendant already served that will be credited on to any time imposed by the court. Then you go for sentencing. The state's going to present the pre-sentence investigation, report to the judge, and they're going to argue aggravating versus mitigating factors. Nine out of ten times the state's going to argue that there's more aggravating factors and they're going to ask for a sentence in a certain range. Then the defendant will have a chance to respond and they're going to argue aggravating versus mitigating factors. Obviously, as defense counsel, you want to have more mitigating factors. You're also going to have an opportunity for your client to address the court. I always like to have my clients address the court and let the judge know that they have remorse. This is why they got themselves in this situation. In speaking with judges, I've I've heard from several judges that you want me to give you a lower sentence and you're not going to tell me why. Why should I do that? They really enjoy hearing from defendant themselves. You can also present other people to speak at sentencing. If, say, Sally is a single mom and if she gets five year state prison, her kids are going to go into state custody and you have somebody that could testify and speak to the court on that on their behalf. That's very powerful stuff. You can also submit letters to the judge. These are all mitigating factors. On the flip side, the prosecutor could present victims to testify as to how they were harmed by this event. And that would obviously be an aggravating factor. There are certain offenses that have a presumption of incarceration, which means you must go to state prison. All first and second degree crimes have a presumption of incarceration. So second degree is 5 to 10 years. So anything five or over, you have a presumption that you must serve some kind of time in state prison. The only way to get around this is defendant would have to be found idiosyncratic. This is the motion that would be filed by defense counsel. Usually this is common. I would say in my experience with second degree robbery, sometimes you'll have a very young kid with no prior history or very minimal history who commits a second degree robbery. Again, remember, a second degree robbery is theft with some kind of physical component and a simple assault. So a robbery essentially could be pushing somebody at the store as you're stealing a candy bar, that's a robbery, because now you stole it and you committed a simple assault. So situations like that, I would definitely file for an idiosyncratic defendant. And what that allows to do is to sentence the defendant outside of the second degree range. But what they would do is they do a second treat as a third. And then the third degree crime doesn't have that presumption of incarceration. So they would not have to impose any kind of state prison time. The last consideration is whether the sentences are concurrent or consecutive. Concurrent means they run at the same time consecutive. That means that they run one after the other. There are certain offenses which must be served consecutively. The other thing that's common is that a lot of times, unfortunately, you have a client that committed this crime while they were on probation. So not only are they getting sentenced on this crime, they're also being sentenced on a violation of probation. So that's a lot of times where you'll see the consecutive versus concurrent really come into play. There are also certain offences which carry a parole ineligibility, which means that they must serve state prison time. These offenses are called No Early Release Act or narrow offences and this is violent crimes. Then we have image images like repeat offender drug offences. Graves Act is guns, weapons offences, and then we have persistent offender. Persistent offender. Offender is career criminal. California calls them three strikes offenders and these require a certain amount of the time imposed by the court to be served and they are not even eligible for parole. So example. Violent offenses. Near offenses are 85%, which means if you get sentenced to five years on a rival robbery because it's a narrow offense, you must serve 85% of that time before the parole board can even look at you. Then we have sex offenses. They carry certain restrictions under Megan's Law, which we're all familiar with, the Megan's Law Registry, as well as Nicole's law. Then we have certain offenses which are extended a term. For example, if you're found to be a persistent offender, you're subject to extended term, and then we have mandatory fines and surcharges. This carries the same in municipal court. There's certain violations, which by statute it has the fine and surcharges written into it, and then also restitution for victim crimes. The prosecutor will also will often look for for victim crimes. The prosecutor will often look for restitution. And this is a way of making the victim whole. And this will usually be amount of money and the court will put you on a payment plan. And the thing is that if the defendant does not pay the restitution, they did not satisfy their sentence and they can be brought back into court. Some offenses also carry a loss of driving privileges. For example, drug offenses carry a driving suspension. As defense counsel, you can make a motion that you need your license to for your livelihood. And after that, the judge waived that. Obviously, that would really be relevant. And non custodial sentencing more than custodial sentence, because if you're in prison, what does it matter if you can drive or not? And lastly, all the judge's findings will be codified and what's called a judgment of conviction a joke. This is the formal document which is filed with the court. It's actually also public record. If somebody wanted it, they can get it. And it's going to outline the charges that were charged initially, what was pled to or it was found guilty of by the jury, what the sentence was. It's going to outline the jail credit and has a lot of information. It's going to outline all this stuff, the fines, restitution and everything. Another thing is we have alternative courts in New Jersey. We have drug court. This is something that really became popular, I would say like 2010. And as the drug court is proceeding in its lifetime, it's becoming more encompassing of who can be a part of it. For example, initially drug court, it does drug court has certain offenses which are ineligible. And that list has been limited more and more over the years. When I first started practicing as a prosecutor. For example, if you had a second degree robbery, you were not eligible for drug court just based off of the second degree charge of robbery. They wouldn't even interview you. And again, a lot of times, unfortunately, you have people that are addicted and they're doing silly things like stealing a candy bar from the store and pushing the clerk to get out. And now they're charged with second degree robbery and somebody that really could benefit for drug court is being turned away just based off of the charge. So that is no longer now you can apply with second degree robbery. The idea with drug court is that it was supposed to be a rehabilitation court for those that are addicted. Unfortunately, what I see really happens is those that are addicted tend to not do as well because you have to do constant monitoring, you have to appear. And also they usually require you to go to different programs, whether it's inpatient, outpatient. So for somebody that's an addict, that could be very difficult, especially for somebody that doesn't have support in the community. So who ends up doing really well in drug court, unfortunately, are the drug dealers. But drug court is a five year sentence where you could be terminated early if you do well. But it is very strict and they do have like status conferences along the way. Another thing that New Jersey started in the last, I would say 15 to 20 years is mental health court. And those are for those people that are deemed to have some kind of incompetency issues but still be competent enough to stand for the charges they could be put in mental health court. It's similar to drug court, whereas you're going to be monitored by somebody from probation. It's going to make sure that you go to your appointments, who's going to make sure you're going to see your doctor. And if you violate that, you can get put back in regular criminal court. Another caveat to that is a mental health probation and very similar to mental health court or PCI. It's a probationary program where you're just going to get more mental health resources be imposed upon you. And it's a lot of tools and you really see these more in the urban areas. And lastly, we have an expungement. Expungement is the sealing of a criminal record. So when an expungement is granted, your criminal record is then sealed. The only people that would ever be able to see it is law enforcement government. If you're going for a government job, however, it would not be on the docket anymore. It would not be on any of the courts anymore. Your name would be removed and it's as if it never happened. So this is a big benefit when your charges are dismissed or when you satisfy pretrial PCI or conditional dismissal and they're dismissed, you can then file for an expungement. So that is all I have for you. All. I hope that this has been informative and helped you understand the process in New Jersey of the criminal system. Thank you for joining.

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                                                                                                                                                                  March 2, 2025 at 11:59PM HST

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                                                                                                                                                                  Approved
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                                                                                                                                                                    Not Offered
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                                                                                                                                                                      Not Offered
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                                                                                                                                                                        Not Offered
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                                                                                                                                                                            Not Offered
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                                                                                                                                                                              Not Offered

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