Ken Vercammen's NJ Laws email newsletter February 27, 2005 #179 In this issue: 1. Indictments in Criminal Cases in Superior Court 2. Laser Speed Detection, previously radar 3. Injuries by burns 4. Upcoming Charity & Fun events 5. DWI driver could turn around to avoid road block 6. Thank You For Your Referrals __________________________ 1. Indictments in Criminal Cases in Superior Court The Criminal Division of Superior Court manages criminal complaints from the time they are lodged to their resolution or "disposition". The accused, or "defendant" is charged with an offense as a result of a formal complaint issued by a law enforcement agent or a citizen who believes an offense has been committed against their person or property. It can also result from an "indictment" by a panel of citizens gathered to consider evidence, called a "grand jury". Arrests can occur at the scene of a crime or based on warrants or sworn statements ordering a court appearance. All arrests must be based on "probable cause", or reasonable grounds to believe that an offense has been committed, and the defendant may have committed the offense. Complaints state the reasons for the charge, and refer to offenses listed in the "New Jersey Code of Criminal Justice" (Title 2C) that includes all of the laws against criminal behavior. See NJ Judiciary Website http://www.judiciary.state.nj.us/criminal/crproc.htm#indictment, Criminal offenses are heard, or considered in Superior Court, and are more serious than non-criminal charges heard in municipal courts where the offense occurred. Defendants found guilty, or "convicted" of crimes face more serious consequences, with punishments spanning probation supervision and fines to the loss of liberty through confinement for a year or more. Crimes are classified by degree. Degrees range from first to fourth degree offenses. A First degree crime carries the potential penalty of 10-20 years in prison. A Second degree crime carries a potential penalty of 5-10 years. Defendants who are convicted of first and second degree crimes face a presumptive term of incarceration. It is assumed that they will be sentenced to serve time in prison. A Third degree crime may result in 3-5 years if convicted, while Fourth degree crimes carry a potential penalty of up to 18 months in jail. There is a presumption of non-custodial sentences on 3rd and 4th degree offenses. Complaints heard in municipal courts are "disorderly persons" offenses or "petty disorderly persons" violations, which carry less restrictive punishments upon conviction. Disorderly persons offenses may be sentenced to up to 6 months in a county jail. Petty disorderly convictions may render up to 30 days in jail. First Appearance Once a complaint is issued, defendants are either arrested or issued a summons or notice to appear in municipal or Superior Court on a first appearance. If they fail to appear, a warrant may be issued for the accused's arrest by a judge if there is proof of service, or evidence that the accused received the summons or notice and failed to appear. At the first court appearance, defendants are advised of their rights. Their bail is reviewed. Right To Counsel At their first appearance defendants are advised of their right to counsel. This means that they are entitled to have an attorney represent them and answer the charges. In making indigence determinations, Criminal Division staff consider defendants' ability to post bail, the amount of bail posted, the willingness of friends and family members to pay for an attorney, and any factor related to a defendant's claim of impoverishment. They review tax returns, credit and wage records and any other relevant information regarding the ability of defendants to hire their own attorneys. Pre-Indictment Events Following the filing of a complaint and the first court appearance, the prosecutor's office in each county determines whether to pursue a criminal complaint. Prosecutors determine if cases have merit and sufficient evidence to pursue a conviction. In most counties, the prosecutor's Case Screening Unit reviews police reports and interviews victims and witnesses to determine if the original charges will be prosecuted. If there is insufficient evidence, the charges are downgraded to disorderly persons offenses and "remanded" or sent to the municipal courts for a hearing or dismissed. In some counties, prosecutors pre-screen potential Superior Court filings before a complaint is signed. The Grand Jury If a criminal case has not been, downgraded, diverted or dismissed, the prosecutor will present the case to a grand jury for an indictment. The grand jury is composed of a group of citizens who have been selected from voter registration, drivers license and tax lists. The grand jury considers evidence presented by the county prosecutor and determines if there is sufficient evidence to formally charge defendants and require them to respond to the charge(s). An indictment is not a finding of guilt. Generally, neither the accused nor their attorneys are present. Witnesses normally testify regarding the crime. After considering evidence, if a majority of the 23 jurors vote to indict defendants, they must face further criminal proceedings. The return of an indictment is called a true bill. If a majority finds the evidence to be insufficient to indict, the grand jury enters a no bill and the charge(s) are dismissed. The jury may, however, decide to charge defendants with a less serious offense, to be downgraded or remanded to the municipal court. The accused must appear in municipal court to face a disorderly persons or petty28e Indictment Process The grand jury will consider evidence presented by the county prosecutor and determine if there is sufficient evidence to formally charge the defendant and oblige him to respond to the charge(s). The indictment is not a finding of guilt or a conviction. The finding is a true bill that triggers further proceedings in the Criminal Superior Court. If a majority finds the evidence to be insufficient to indict, the grand jury enters a no bill and the charge(s) are dismissed. The jury may, however, decide to charge the defendant with a less serious offense, to be heard in municipal court. In this instance, the offense has been downgraded or remanded. The accused must appear in municipal court to face a disorderly persons or petty disorderly persons charge. The Pre-Arraignment Conference and The Arraignment Within twenty-one days of the return of an indictment, a pre-arraignment conference is held. This pre-arraignment conference is scheduled by Criminal Division Staff. Defendants may wish to apply for public defender representation at this point if they are not yet represented. Prior to this conference, discovery or evidence is available to defense counsel. This exchange of evidence provides the defense with an opportunity to review the evidence the prosecution intends to use against the accused prior to the conference. After reviewing the discovery provided prior to the pre arraignment conference, defendants may decide to apply for Pretrial Intervention, or to enter plea bargain negotiations. Defendants may also indicate their intention to plead guilty to the charge for which they were indicted. Arraignment/Status Conference Standards A formal arraignment occurs no later than 50 days after an indictment. Upon notification by the Criminal Division, defendants must appear and face formal notification of their charges. They may plead guilty at this point, either to the charges listed in the indictment, or to revised charges resulting from plea negotiations. If plea negotiations are ongoing, the parties may review the status of the plea offer. Defendants may also opt to apply for the Pretrial Intervention program at this juncture, or be admitted into the program if they have not applied prior to arraignment. If a guilty plea is entered at the formal arraignment, Criminal Division judges order a presentence investigation to be conducted by Criminal Division case supervisors. Sentencing will follow the presentence investigation, generally 4 to 6 weeks after convictions. Status Conferences and the Pretrial Conference Defendants who have pleaded not guilty at this point may continue plea negotiations or preparation for trial. Pretrial case resolutions may occur at a status conference, where a defendant may decide to enter a guilty plea with or without a negotiated plea bargain. At Pretrial Conferences, defendants may enter a guilty plea to the charges. At the Pretrial Conference, there is a plea cutoff date, after which no further plea negotiations can occur. If no agreement to plead guilty is reached, the matter will proceed to trial. Criminal Division staff track conferences to ensure that cases are moving without undue delays. The Administrative Office of the Courts evaluates statistics entered by Criminal Division staff in each criminal court to stay abreast of overall case movements statewide. The Criminal Practice Division assists local court staff to address backlogs if they should occur. More information at our new website article at :http://www.njlaws.com/indictments_in_criminal_cases_in_superior_court.htm __________________________ 2. Laser Speed Detection, previously radar The landmark case on Laser speeding tickets is In the Matter of the Admissibility of Motor Vehicle Speed Readings Produced by the LTI Marksman 20-20 Laser Speed Detection System 314 N.J. Super. 233, 714 A.2d 381. Speed readings produced by the LTI Marksman 20-20 Laser Speed Detection System manufactured by Laser Technology, Inc. (hereinafter "laser speed detector") can be admitted into evidence. Admissibility of such readings shall be subject to the rules set forth below: 1. Expert testimony in support of admissibility shall not be required, except as specifically set forth below. 2. Appropriate training of the law enforcement officer operating the laser speed detector shall be shown in each case. 3. Pre-operational checking procedures recommended by the manufacturer of the laser speed detector shall be shown to have been made in each case. 4. Speed measurements shall be admitted whether made in daylight or at night and within any temperature range likely to be found in New Jersey, even if made under conditions of light or moderately heavy rainfall, but speed measurements taken during heavy rain or while snow is falling shall not be admitted without the support of adequate expert testimony in the individual case. 5. Speed measurements made at any distance up to 1,000 feet shall be admitted, but measurements made at any distance in excess of 1,000 feet shall be admitted only with the support of adequate expert testimony in the individual case. This case was affirmed State v. Abeskaron (In re Admissibility Hearing of the LTI Marksman 20-20 Laser Speed Detection Sys.), 326 N.J. Super. 110. November 24, 1999 More details on Laser speed at our new article at http://www.njlaws.com/laser_speed_detection_system_LTI_marksman.htm ________ 3. Injuries by burns If injured and burned, all burns should be covered with sterile non-adherent dressings. Chemical burns should be washed with large quantity of water; vinegar may be added to the water for alkali burns, and sodium bicarbonate may be added to the water in case of acid burns. Symptoms: Redness (first-degree burns), blistering (second-degree burns), charring of skin (third-degree burns). Treatment: Cold water may be applied to first- and second-degree burns. More details on our new website article: http://www.njlaws.com/injuries_caused_by_burns.htm ___________________________ 4. Upcoming Charity & Fun events March 6 - Belmar St Patrick Parade March with the Jersey Shore Running Club March 11 - Friendly Sons of St. Patrick. Black Tie. Somerset Double Tree Hotel Friday night event [If you can give Ken V a ride from South Brunswick/ East Brunswick, call 732-572-0500] March ?- Cynthia Vercammen Birthday Party 3/13/2005 St. Paddy's 10 Mile Race & Leprechaun 5k 10 mile, 11am, 5k, 11:15 am Freehold NJ 732-431-2627 Free beer, Free Windmill hot dog, long sleeve shirt 3/20- Equinox 20k- 9:30 Johnson Park, Piscataway, NJ Well organized, sponsored by RVRR. Dana Gross recommends this race. Post event food. 4/3/2005 Indian Trails 15k Road Race & 3 Mile Run 9am Middletown NJ 732-842-4317 nice views of Bay, well organized event 4/17/2005 Eden Family 5k 9am, Plainsboro NJ 609-631-9211 Large trophies, Join the Vercammen team as we seek to repeat as team champions ________________ 5. DWI driver could turn around to avoid road block. State v. Badessa 373 NJ Super. 84 (App. Div. 2004). When a DWI checkpoint zone encompasses intersecting roads, proper on-the-scene warnings must include signs indicating no turns. Absent adequate warnings, the stop of a driver who makes a lawful turn onto an intersecting road within a DWI checkpoint zone is invalid unless there is an independent probable cause for the stop. 2. Defendant's refusal to submit to a Breathalyzer test (refusal), in violation of N.J.S.A. 39:4-50.49(a), is sufficiently attenuated from an illegal stop that evidence of the refusal is admissible at trial. 3. The refusal statute, N. J. S. A. 39:4-50.2(a), is premised on a driver's consent to submit to a Breathalyzer test when an officer has probable cause to believe that the driver is intoxicated. Consequently, it is not the probable cause for the stop but the probable cause to request the Breathalyzer test that provides the constitutional basis for a refusal charge. ____________________________________ 6. Thank You For Your Referrals Our firm receives many new clients as a result of referrals from current clients and other friends of our firm. We would like to express our deep thanks to everyone who refers their family, friends and co-workers to our firm. We sincerely appreciate the trust and confidence you show in us by making these referrals. Thank you for thinking of us when a family member, friend or co-workers needs legal assistance. We Will continue to strive to provide the highest standard of legal service and representation to you and everyone you refer to our firm. ___________________ New photo on website: Hon. Judge Anthony Frasca- Presiding Judge, Essex County and Newark Municipal Court Judge spoke to the officers of the Municipal Court Section on the enhancement of the professionalism of the Municipal Court and resolution of issues arising from the operation of, and practice in Municipal Courts. The meeting was held at the NJ State Bar Association's Law Center on January 24, 2005. Photo at http://www.njlaws.com/frasca.htm. Next meeting: March 28 __________________________________________ Thank you for reading our newsletter! God Bless America USA #1 Kenneth Vercammen, Esq. 2053 Woodbridge Ave. Edison, NJ 08817 NEW PHONE 732-572-0500 New (Fax) 732-572-0030 website: www.njlaws.com "Celebrating 20 years of providing excellent service to clients 1985-2005" Free T- shirts and car coffee holders to all current and past clients. Please come into office. Editor's Note and Disclaimer: All materials Copyright 2005. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included. Always schedule an office appointment with an experienced attorney when you have a legal matter. The Rules of Court limit an attorney's ability to discuss matters over the phone. If you have legal questions, you should schedule an in- office consultation. Removals handled by webmaster lonekeep.com. To remove, email back & type in subject line "remove". 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