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Criminal Defense Frequently Asked Questions

Please take a look at our FAQs below

What is an Indictment?

An Indictment is a charging document returned by a Grand Jury.  A Grand Jury is a group of 23 individuals who are asked to hear cases and determine whether or not there is Probable Cause to believe a crime has been committed.

It is a secret proceeding presented by the Prosecutor and if 12 of those 23 individuals believe that a crime has been committed, or that there is Probable Cause a crime has been committed, they return an Indictment. That indictment is then presented to the Assignment Judge of the County and the defendant is then scheduled for an Arraignment. At Arraignment that is when a formal plea of Guilty or Not Guilty is entered and the criminal process begins.

For more information, visit our page on indictments in NJ.

In New Jersey, are there Felonies or Misdemeanors?

New Jersey has Felonies and Misdemeanors, but they are not called that. There are Indictable crimes. Those are your Felonies: 1st, 2nd, 3rd & 4th degree. And then we don’t have Misdemeanors, but we have Disorderly Persons offenses. There are Disorderly Persons offenses and Petty Disorderly Persons offenses. So, for all intents and purposes, it is the same charge, just a different name.

For more information, visit our page on Criminal Charges in NJ.

What is Pre-Trial Intervention?

Pre-Trial Intervention is a diversionary program for people to be able to resolve their charges. People who are charged with minor criminal offenses can apply for Pre-Trial Intervention. The result of applying for Pre-Trial Intervention is that if one successfully completes their period of Pre-Trial Intervention, they will have their charges ultimately dismissed and they won’t have a criminal record.

For more information, visit our page on Pre-Trial Intervention in NJ.

What is Pre-Trial Release?

Defendants who are charged on a Complaint Summons are going to be released immediately after they are processed on their charges. They will be able to go home and go to work, be with their family, help prepare their defense, and continue with their lives while they are out on the street and going on with their lives.

Individuals who are charged on Warrants go through a different process. Any defendant in New Jersey, any person who is charged on a Warrant in New Jersey, is going to be taken to the County Jail and held until they are seen by a Judge At that point, after they go through their first appearance, a determination is going to be made as far as to whether they are going to remain incarcerated until their case is completely resolved or if they are going to be released at that point.

Now what we look to do for our clients is to try and get them released while their case is pending. The issue is this when defendants are incarcerated while their case is pending, some people will simply just give up at that point and they look to cut a deal and enter a plea agreement simply for the purpose of getting out of jail. With Pre-Trial Release, people who are charged with crimes have a Detention Hearing within a couple of days of initially being brought into the jail.

We will seek to have them released and placed back into the community so they can continue with their jobs, be with their family, help with their defense, not be subject to that coercion that takes place when they are locked up and in jail while their case is pending and they have no idea how long it is going to take for their case to be resolved.  And again, that decision is made just within a couple of days after they are initially brought to jail.

 

What is Bail Reform?

Prior to 2017, the determination as far as whether someone who was charged with a crime was going to go home or not was financially based. If you went home or didn’t go home depended on how much money you had in your bank account. That system has been changed.  Very rarely does bail need to be set for someone who is charged with a crime anymore.

Most people are charged on a Complaint Summons. Even for pretty significant crimes, a person will be charged on a Summons and after they are charged and processed, they end up going home and continuing with their life until their charges are resolved.

Bail reform took out that financial component that poor people, people who can’t afford to post bail, are going stay in jail until their case is resolved and people have more means and have the money are going to be able to walk the streets until their cases are resolved.  So rather than being financially based, now the system is risk-based.

People who are charged with crimes on Complaint Warrants, the more serious cases, the Courts do an assessment as far as whether somebody is a danger to the community and will show up to court.  Based on that assessment, the Court will make a determination as far as whether somebody is going to be released into the community or not.  Again, very few people, even people who were originally charged on Warrants and subsequently end up being released, have to post bail.

Learn more about Bail Reform in NJ.

What is the presumption of incarceration and non-incarceration?

New Jersey has a presumption of incarceration and a presumption of non-incarceration.  For 1st and 2nddegree charges in New Jersey, there is a presumption of incarceration. This means, if convicted of a 1st or 2nddegree crime, there is a presumption that you are sentenced to State Prison.

On the other hand, 3rd & 4thdegree crimes in New Jersey have a presumption of non-incarceration. If you are convicted of a charge of the 3rd or 4thdegree and you are sentenced and you have no prior history, there is a presumption that you are NOT sentenced to State Prison.  Having said that, only 3rd or 4thdegree, you may be sentenced within the presumption for up to 364 days in the County Jail.

Learn more about the Presumption of Incarceration and Non-Incarceration.

What is a Conditional Discharge?

A conditional discharge is limited to municipal court. When you have a drug offense in municipal court, and it’s your first drug offense, you are eligible for something called a Conditional Discharge Program. So, what happens, is we go in front of a Judge and explain to the Judge that you are eligible for the Conditional Discharge Program. The Judge will then review your criminal history and ask questions to determine whether you are eligible. As long as you don’t have a prior drug offense or if you have never been in any diversionary program, you are eligible.

The Judge then sets a timeline, usually about six to twelve months where they put you on something I call “probation light”. What that means is, during that period you get drug tested once, maybe twice. At the end of those six to twelve months, as long as you don’t have any new criminal offenses and you pass your one or two drug tests, the charges against you get dismissed.

Another benefit of the Conditional Discharge Program is that six months after the completion of that program, you are eligible to have that charge expunged outright. The only downside is once you enter the Conditional Discharge Program you are not eligible for any further divisionary programs. This means you can’t enter into the Conditional Dismissal Program and you cannot enter the Pre-Trial Intervention Program.

For more information, visit our page about possible Criminal Defense Case Outcomes.

What is an Appeal?

An appeal is filed when a client is not satisfied with a lower court ruling and wants to have it reviewed by a higher court. When an appeal is filed, we rely on the record that has already been established in the lower court and an appellate lawyer is going to work with that record and point out errors that the trial lawyer and lower court judge made in their ruling.

The process that undertakes is you take the appeal to a higher court and ask that higher court to reverse the ruling of the lower court. The result is that sometimes convictions can be reversed, evidentiary rulings can be reverse by pointing out an error that a trial court judge made.

The process that is used to take an Appeal is an Appeal is filed with that higher court of jurisdiction and an appellate lawyer works with that lower court record, doing legal research and preparing a brief using cases that have been decided in the past, legal precedence to point out to that higher court the error the lower court made in order to seek that reversal.  The ultimate result can be a reversal and favorable ruling for your client.

For more information, visit our page on Sentencing & Appeals in NJ.

What is an Expungement?

An expungement is just getting your criminal record cleared. Generally, if you only have one indictable offense, or a few disorderly persons offenses, after a set amount of time you can submit a petition to the Court to have your entire criminal history cleared. When it comes to indictable offenses or disorderly persons offenses, there are some loopholes we have to go through to clear it out.

If you are charged with a crime that was dismissed in municipal court, we can instantly get that expunged. When your expungement is complete, you can legally say “I don’t have a criminal record and I’ve never been arrested.”

For more information, visit our page on Expungement in NJ.

Is there a Drug Court in New Jersey?

New Jersey has a Drug Court Program, which helps individuals who suffer from addiction, and whose crimes are related to their addiction, seek treatment, and avoid incarceration. It is a form of Probation whereby you must successfully complete the Drug Court Program (and if you do successfully complete the Drug Court Program your charges have the ability to be dismissed).

In addition, you have an alternative sentence. As part of the Drug Court Program, you are sentenced to a period of typically State Prison and then you are allowed to participate in the program and if you successfully complete the program then you are never sentenced to State Prison. That is your alternative sentence.

For more information, visit our page on Drug Court in NJ.

Should a client go to Trial?

One of the most difficult decisions that an attorney and a client have to make together is whether or not they should proceed to trial.  In almost all cases a prosecutor will extend a plea bargain.  And in most instances, the offer from the prosecutor will represent a lesser punishment than a defendant could receive if they proceed to trial and were found guilty. So, there is a risk and a reward for going to trial.

The decision of whether to accept a plea offer or reject a plea offer is really one of the most difficult decisions to make. What I normally do with my clients is we do a very, very, detailed review of the evidence.

We do a very, very, in-depth review of what a jury is going to hear, the arguments that we are going to make to the jury, the arguments that a prosecutor will likely make to a jury, and then what it almost always comes down to with my clients is what is the risk tolerance?  What is someone willing to risk?  If someone looks at me and says, I know that if I am found guilty, I may spend the rest of my life in prison, but I have to go to trial, I didn’t do this. Well, then we have our answer.

If on the other hand, my client did violate the law in some way and is not willing to accept the risks that a trial would entail, then it is our job to negotiate a resolution where there is a minimal impact on my client’s life as possible.

Can the police lie to you?

The police can’t fabricate evidence against you, but they can use psychologically oriented tricks to try to get someone to talk. So, they can mislead people, they don’t necessarily have to tell the truth. They can tell you things because they are trying to get people to talk. People don’t need to, someone who is a suspect in a crime does not need to talk to a police officer.

A policeman will try to get that person to talk because, people are familiar with this phrase “anything you say can be used against you in a court of law”, well it’s true, that is one of the rights that you give up if you decide to speak with the police. Anything you say can be used against you. On the other hand, your silence cannot be used against you.

Now a police officer may intimate it would be a good idea to talk with them and tell your side of the story, but I would recommend, and we would recommend, don’t talk to the police. You don’t have an obligation to speak with them. They may say they are your friend and they are trying to help you out, but they are looking to get, they are investigating a crime. There is a reason why they are talking to you as a suspect.

There is nothing that you are going to be able to say, even if you are innocent, that is going to be helpful to you at that particular time.  The best thing a person can do is just not say anything, let the chips fall where they may.  If you are charged with a crime, there is always an opportunity to address it through their lawyer later, issues with the police and present their side of the story.

If you are stopped for speeding, can the police search your car?

If you’re stopped for speeding, the police generally cannot search your car.  However, in New Jersey 90% of the time police search an individual’s car for speeding is when they smell the odor of either raw or burnt marijuana. Once they smell that odor, they will take you out of the car, put you under arrest and search your person and your entire car.

Legally, they are allowed to do that based on recent Supreme Court decisions. Having said that, if they don’t smell marijuana and they don’t see any other indicators of criminal activity, they cannot search your vehicle.

For more information, visit our page on Traffic Offenses & Tickets in NJ.

What happens if you are not read your Miranda rights?

A very common question that clients ask me when I first meet with them. They say, “The officer never read me my Miranda Rights.”  I think there is a misconception that if an officer does not read a defendant their Miranda Rights that the case will result in a dismissal and it is this horrendous violation of rights. Sometimes that is true and sometimes it is not, and it is very complex.

Miranda is a protection. Miranda is intended to advise a person under investigation that they have no obligation to speak to the police and they have a right to seek legal counsel before they speak to the police. People should NOT speak to the police until they have spoken to a lawyer. So, without that advisement, statements that are made in a custodial interrogation are inadmissible in a court of law.

So, for instance, if someone is arrested, for whatever reason, and an officer searches them as they are being placed under arrest and they find, let’s say drugs in their pocket. The fact that the officer didn’t read that person their Miranda Rights will likely have no effect on their case because there was no custodial interrogation there.

On the other hand, if a person is in handcuffs and an officer is questioning them and questioning them in a way that would either reasonably be expected to or logically result in answers that may tend to incriminate that person, that is illegal. They have to be read their Miranda Rights.

So, it is very fact-specific. It may be very, very, important to someone’s case or it may not matter at all.  But one of the things we do at this Firm is that every single available argument that we can make we at least explore if not zealously advocate.  So, we would always look into whether there was a violation of someone’s Miranda Rights.

Should clients tell their side of the story to police?

Often times people want to know whether or not they should tell the police their side of the story, and I think that is a very natural and normal reaction that an innocent person would have. They would think to themselves well if I go to the police and I tell them what happened this will all go away because I have the truth on my side. In reality, it is almost NEVER a good idea to speak to the police about your case.

The reason for that is for every word that comes out of your mouth you are giving the police information and more importantly the prosecutor’s information that they may not have to prove at a later point.  The police may believe you and they may decide not to charge you. The prosecutor may believe you and the prosecutor may decide not to prosecute. At the end of the day, we always deal in worst-case scenarios here and protecting our clients from the worst-case scenarios.

So even saying, yes, I was there, I was in New Jersey, but I never touched that person. I didn’t do anything I am accused of. Well just by telling the police and prosecutor that you are in New Jersey at that point in time, that is one less thing the prosecutor has to prove.  Before then the jury may not know where you were. You could have been in Montana at the time the crime was alleged.  Now that you told the police that you were in New Jersey, that is one less thing they have to prove.

So, with very, very, few exceptions, it is almost never a good idea to talk to the police without first speaking to an attorney.

What happens if you are caught with a gun in New Jersey without a Permit?

Gun laws in New Jersey are really some of the strictest Firearms Legislation in the entire Country.  Number (1) a common question is…when can I possess a weapon?  It gets very, very complicated, very quick.

The statutes are incredibly nuanced, and it really requires an attorney who is well versed in them to advise an individual as to when they can possess a firearm and under what circumstances.  What I can say is that if you are found with a firearm outside of very specific circumstances, for instance, in your home or if you are transporting it in a way that is permitted by New Jersey Law, you are likely facing significant punishment.

Most individuals do not have a permit to carry a firearm.  So, unless you have already had a Judge order that you are permitted to carry a firearm, you are not allowed to carry a firearm outside of very specific incidences.

If you’re found with a firearm, even if you’re doing nothing improper with the firearm, you are still charged with a Second Degree crime that comes with:

  • A mandatory sentence to New Jersey State Prison under most circumstances, between 5 and 10 years.
  • Very harsh parole ineligibility guidelines.

The parole ineligibility guidelines start with a minimum of 3 ½ years in state prison and can go all the way up to half of the sentence. So, for firearms, it’s almost never a good idea to have a firearm outside of very, very specific circumstances, whether it’s inside your home under special circumstances or in your car consistent with what the law allows because the charges are so severe.

For someone who is charged with a firearm offense, it’s important to have an attorney who knows the law inside and out because there are Attorney General Guidelines that may permit the client to enter a diversionary program. There may be a plea offer that can be obtained wherein there may not be any incarceration involved or, in the most severe circumstances, you may just need a plea offer that insures the minimal time of incarceration.

It is also important to know:

  • was there a search conducted legally?
  • Is the prosecutor following the rules?
  • Are the police following the rules?

The stakes are too high to have anything less than an aggressive attorney under those circumstances.

For more information, visit our page on Weapon Charges in NJ

Are there any defenses to DUI?

There are plenty of defenses for a DUI. There are really three ways we look at a DUI; three defenses I usually look for.

  1. The first is an operations issue. At the time that you were driving, there has to be proof that you were operating while under the influence. So, say, for example, they found you on the side of the road sleeping and they believed that you were intoxicated. They still have to provide evidence that you drove to that location, they can’t just automatically win a DUI trial based on that.
  2. We also have to look at the Alcotest results themselves. The Alcotest is the device that’s used to test your blood alcohol content. There are specific guidelines that the police have to use when operating an Alcotest machine. If the police don’t follow these guidelines and there’s an issue with the Alcotest results, we can get those results thrown out, which puts our client in a much better position.
  3. The last real sort of issue I’m going to be focusing on when I examine any DUI file is the actual administration of the Standardized Field Sobriety Tests. I’m going to be looking to see if the officers preformed the tests correctly, whether or not you asked them my client’s age or weight when they’re conducting the tests.

Sometimes if my client is elderly or disabled, they really can’t complete these tests, but the police still administer them and if there’s a defense to be found when it comes to either of these issues, we’ll find it.

For more information, visit our page on DUI/DWI Charge Defenses.

What is Megan’s law?

Megan’s Law is, at its core, a law that is intended to monitor individuals who have been convicted of certain sex crimes. Most people I think view it as an umbrella term.  And, it really encompasses 2 things.

It encompasses Megan’s Law, which is a registration requirement for individuals who are convicted of certain crimes. And, that registration requirement may be fairly benign in that they have to proceed to the police department once a year and notify the police department where they are living or it may be more intensive in that an individual’s neighbors may be notified that they’ve been convicted of a certain sexual crime.

There’s another component to what people classically perceive as Megan’s Law called Parole Supervision for Life, which can tend to be more onerous than the registration requirement.  For most individuals who are convicted of sexual offenses that would require them to register pursuant to Megan’s Law, they are also placed on Parole Supervision for Life, which can mean that a parole officer is assigned to that individual.

The parole officer has incredible authority to supervise the person on Parole Supervision for Life that can include:

  • Searching their home.
  • Monitoring their internet activity.
  • Restricting how often they can travel, where they can travel, how long they can travel.

If an individual is accused of violating the terms and conditions of their Parole Supervision for Life, they are not entitled to a trial by jury. They go in front of a Parole Board where they have very limited due process rights. So, when people talk about Megan’s Law, it really encompasses 2 things the registration and Parole Supervision.

That is why any time an individual is contemplating pleading guilty to a sexually based offense, it is important to understand, even though there may be no jail time involved, the conditions that may be imposed on that person are fairly significant.

For more information, visit our page about Megan’s Law.

What is the difference between a Temporary Restraining Order and a Final Restraining Order?

There are two forms of Restraining Orders in New Jersey:

  • Temporary Restraining Order
  • Final Restraining Order

A Temporary Restraining Order is issued by a Judge at an Ex Parte Proceeding and it is good for ten days. Within those ten days, there needs to be a hearing and that is a Final Restraining Order Hearing.

If the victim of domestic violence is able to prove by a preponderance of the evidence that an act of domestic violence was committed and that there is a need for restraints, a Final Restraining Order will be entered by the Court.  The Final Restraining Order is just that; it is forever.  The only way it can be removed is by a request from the victim or a formal application approved by the Court.

For more information, visit our page on TROs & FROs in NJ.

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