Criminal Defense For Local, State & Federal
Cases
The representation of clients in all aspects of
criminal defense: Drug crimes, sex crimes, murder and federal
crimes including falsification of documents, drug trafficking,
robbery, and gun trafficking.
".... I have
represented clients on appeal before the Federal Second and
Third Circuit Courts of Appeals, the New Jersey Supreme Court
and the New Jersey Appellate Division. I have represented
clients before the Federal Courts in the Southern District of
New York, the Eastern District of New York, the District of New
Jersey, and the Eastern District of Pennsylvania as well as the
state trial courts in New Jersey and New York."
The Criminal Process
Now that you’ve been arrested, and you have
not given any statement to the police, how do you get out of jail?
This is the issue of BAIL. Bail is initially set by the municipal
court judge. He is called when you are arrested at night, and he can set
bail for all disorderly persons offenses, fourth and third degree crimes.
First and second degree crimes must have bail set by a Superior Court
Judge. Bails for all crimes for which there have been arrests during the
day are set by a Superior Court Judge; disorderly persons offenses by
municipal court judges. Bail must be set according to the factors set
forth in State v. Johnson, 61 N.J. 351 (1972); R.3:26-1.
An attorney can have a great influence on
the setting of bail, since he can bring to the Court’s attention factors
that the Court may overlook or fail to appreciate the importance of. In
Middlesex County, the presiding criminal division judge sets the bails
about 4-4:30 pm everyday. This is based on an interview by probation at
the jail. While no formal hearing is set, contacting the bail people at
the jail so that they can bring these factors to the attention of the
judge is very important since the initial bail is the one you are most
likely to end up with. Somerset County is similar in it’s approach.
In Union County bail is set by the
presiding municipal court judge at a short hearing at the jail, called a
first appearance. Again, an appearance by an attorney can have a great
influence on the amount of the bail set since the attorney can bring
important factors to the attention of the judge.
Once bail has been set, you are entitled to
a hearing to modify bail. There are two reasons to have this hearing. One
is to make an argument to lower the bail, obviously. The second is to look
at the police reports. You normally cannot obtain discovery until (or
unless) you have been indicted. But you can look at the police reports in
making your bail application. This way you will know what you are facing
well before the grand jury presentation, and can begin preparing to meet
the allegations of the police.
In Middlesex County you must file a formal
bail motion which is heard once every two weeks. This means that you must
sit in jail until it is heard. Somerset County is similar. In Union County
a simple phone call to criminal case management before Wednesday will
result in a bail hearing on Friday.
For third and fourth degree crimes you have
a 10% option. This means that you can post, in cash, at the jail, anytime,
10% of the bail amount set and be free to leave the jail. First and second
degree crimes do not have a 10% option, so you must post the full amount.
A bail bondsman charges a fee for his services, which is generally 10% of
the bond you must post.
In Federal Court the bail system is very
different. Under the Bail Reform Act, the magistrate must set a bail which
is reasonable to guarantee your appearance, which often means an unsecured
personal recognizance bond, which you simply sign. In other cases he may
require others to sign the bond as guarantors of your appearance.
Sometimes you may have to post property, or wear an ankle transmitter. The
hearing for setting the bail before the magistrate will often be within 48
hours of your arrest.
However, in serious drug cases, and other
serious crimes, there is a presumption that no set of conditions will
guarantee your appearance. You are entitled to a bail hearing, which is
often within three days of the setting of the bail. Your are NOT entitled
to discovery for this hearing. You must be able to convince the magistrate
that there is a combination of conditions which will guarantee your
appearance. It can be done. John Gotti Jr. did it.
PRE-TRIAL INTERVENTION
In New Jersey you have a once in a lifetime
opportunity to avoid criminal prosecution for all crimes by entering into
PTI. This is similar to ACD in New York and ARD in Pennsylvania. In
Federal Court there is a similar program, but it is much harder to get
into.These programs provide a once in a lifetime opportunity for the first
time offender to avoid criminal prosecution. To be eligible in New Jersey
you must have no prior criminal convictions, and generally be accused of
only fourth and third degree crimes. Second degree crimes require the
consent of the prosecutor to get into PTI. Prior participation in PTI, ARD,
ACD, or a Federal ‘diversion’ program makes you ineligible for
PTI.
PTI is generally the prosecutor’s
determination. This decision can be reviewed by a Superior Court Judge for
gross abuse of discretion, mistake, or failing to take into account all
PTI factors. Sometimes you can get a judge to overrule the prosecutor.
Getting into PTI is often crucial. It can
determine whether you go to jail, or not. It also often determines whether
your driver’s license is suspended or not - if you get in, you keep your
license. For instance, if you sell or give a pretty girl a small amount of
marijuana in a bar that happens to be within 1000 feet of a school, you
either go to jail for a year, or get into PTI. I currently have a case
just like this on appeal before the New Jersey Supreme Court because the
prosecutor wants my client, who has no prior record, to go to jail. Very
harsh.
PRE-DISPOSITION CONFERENCE
Every county in New Jersey must have a
pre-disposition program which is a program whereby the prosecutor must
offer a plea to you prior to indictment. This is normally your best
opportunity to work out the charges, before the prosecutor presents the
case to the grand jury. You are entitled to review the discovery and
discuss the case with the prosecutor and the judge. Union County runs one
of the best programs, and on Thursdays Judge Triarsi’s (the presiding
criminal division judge) courtroom is usually full. Here an attorney
making a compelling presentation to Judge Triarsi can really make a
difference. I have been able to either substantially lessen or even
eliminate any jail sentence.
Middlesex County runs a similar program,
and a compelling presentation to Judge Hoffman (the presiding criminal
division judge) can have the same effect.
THE GRAND JURY
In State practice this is not as big a
focus as in Federal practice because you are entitled to get a transcript
of the entire grand jury proceeding. And in State practice the prosecutor
has a limited obligation to present exculpatory evidence to the grand
jury.
In Federal practice the proceedings before
a grand jury are supposed to be secret. Only under unusual circumstances
can you get a transcript of the grand jury proceedings. But only evidence
actually presented to the grand jury is secret. So if it’s not
presented, it’s not secret. And documents not created for the grand jury
are not secret. So business documents are available. Often these documents
are subject to grand jury subpoena, which can be the subject of a motion
to quash.
Witnesses who testify before the grand jury
are not subject to the secrecy requirement so they may be interviewed
after their testimony. In fact, the witness may leave the grand jury room
anytime to consult with his attorney, and should do so often. The
questions asked are often as important as the answers given since the
questions show the direction of the government’s investigation.
A Federal prosecutor has no obligation to
present exculpatory evidence to the grand jury.
Obviously, if you receive a subpoena to
testify before the grand jury, you need a lawyer, before you
testify.
INDICTMENT
An indictment simply means that a majority
of the 23 people in the grand jury room, after hearing only a police
officer’s summary of the case, believe that it is probable that a crime
was committed, and you did it.
After the indictment there is an
arraignment. This means that in open court the charges are read, you are
advised of your right to an attorney, and new bail applications are made.
In state practice you will receive the police reports (discovery). In
Federal practice a trail date is set, a date for pre-trial motions is set,
and eventually you will receive discovery. At this point you really need
an experienced attorney since pre trial motions to suppress evidence, or
limit evidence, are very important. In State practice a plea cut-off date
is set after which the State cannot offer you a plea bargain. Eventually,
usually within 6 months, there is a trial. Appeals from verdicts are taken
within 45 days of sentence.
In Federal court the trial framework is
governed by the Speedy Trial Act, which generally requires that trials
occur within 70 days of arraignment. This puts a real burden on the
defense attorney, because the government can take forever to investigate
and indict. You have 70 days.
Further, under the Jencks Act, you are only
entitled to a statement of a testifying witness after he has testified on
direct! The government normally provides statements during discovery, but
they do not have to. Only after the witness testifies do they have to.
Appeals must be taken within 10 days of sentence.
Believe it or not, this is only a short
synopsis of the criminal process. It is quite complex, and varies with the
facts and the crime charged. Experience and skill are very important. This
is why you need the services of someone like me, who is both a Certified
Criminal Trial Attorney and has a Masters in Trial Advocacy.
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