New Jersey Criminal Lawyers Blog

A defendant charged and convicted of a 2nd or subsequent New Jersey DWI may wish to file a Petition for Post Conviction Relief (PCR) for a number of reasons. One such reason was raised during the trial of Karen Weil (State v. Weil). Ms. Weil, plead guilty to a 3rd DWI and applied for PCR (post trial), which was subsequently denied. Post Conviction Relief in this case was requested because the defendant believed that she had sustained a "substantial denial in the conviction proceedings of [her] rights under the Constitution of the United States or the Constitution or laws of New Jersey" (R. 7:10-2) stemming from a prior (first) DWI conviction in 1994.

Defendant, Karen Weil filed a "Laurick" application for Post Conviction Relief (State v. Laurick). A defendant who has sustained a prior un-counseled DWI conviction could be entitled to a step down in the jail sentence associated with a 3rd DWI conviction. For a 3rd DWI conviction there is a mandatory jail term of not less than 180 days. If Ms. Weil's "Laurick" application were successful, she would only be required to serve a jail sentence affiliated with a 2nd offense DWI which is not less than 48 consecutive hours nor more than 90 days.

As shown by Ms. Weil's case, a step down for a Post Conviction Relief "Laurick" application is not easy. Ms. Weil claimed that she could not remember whether or not she was represented by a public defender in her 1994 DWI conviction but she specifically recalls not being represented by private counsel. Since it had been 16 years since the initial DWI conviction, the court could not provide records or court transcripts. The only information available was a copy of the back of the summons, which indicated that Ms. Weil paid a $50.00 public defender fee. The defendant argued that this information alone was not enough to establish that she was in fact represented by counsel and is entitled to relief due to the facts that all other records were not available.

The State argued that Ms. Weil needed to establish a prima facie case and the court agreed. As to the delay, New Jersey Municipal Court Rules state that there is a less than stringent five-year time limit for filing a PCR petition. Ms. Weil had in fact waited for 16 years and did not convince the court that it was not a result of her neglect.

Defendants who file a Laurick PCR application are charged with the burden of proof and must overcome a few hurdles, which the New Jersey Supreme Court has articulated in the progeny of State v. Laurick. Before getting to the two-tiered analysis of Laurick, a defendant must first prove that he or she did not receive notice of a right to counsel in a DWI proceeding. After establishing that no notice was given, the defendant must show two things: (1) unaware that he or she was entitled to counsel and (2) if the defendant was considered to be indigent (could not afford private counsel) then he must show that he would have derived a benefit from notice that he was entitled to a public defender. If the defendant was non-indigent and could afford private counsel, the defendant needs to show that the lack of notice affected the outcome of the case. Defendant, Karen Weil was not able to meet the significant burden of the test, therefore, her conviction was affirmed and no PCR was granted.

Continue reading "Significant Burden Must Be Overcome for Success on Post Conviction Relief "Laurick" Application for Prior NJ Drunk Driving Conviction. " »

New Jersey Administrative Code § 6A:9-17.1 states the following:

Certificate holder
(a) For purposes of this subchapter, the term certificate holder shall include all individuals who hold certificates, credentials, CEs and CEASs issued by the State Board of Examiners.
(b) For purposes of this subchapter, the term certificate shall include all standard, emergency and provisional certificates, all credentials and all CEs and CEASs issued by the State Board of Examiners.
(c) All certificate holders shall report their arrest or indictment for any crime or offense to their superintendent within 14 calendar days. The report shall include the date of arrest or indictment and charge(s) lodged against the certificate holder. Such certificate holders shall also report to their superintendents the disposition of any charges within seven calendar days of disposition. Failure to comply with these reporting requirements may be deemed "just cause" pursuant to N.J.A.C. 6A:9-17.5. School districts shall make these requirements known to all new employees and to all employees on an annual basis.

To summarize, certificate holders that work in school systems must report to the Superintendent within 14 days any arrest or indictment for any crime or offense from any jurisdiction. When the case is completed, the school employee must report within seven days the final disposition.

The chief school district administrator is also responsible for reporting to the State Board of Examiners when he or she has received a report from the Division of Youth and Family Services (DYFS) substantiating allegations of abuse or neglect or establishing "concerns" regarding a certificated teaching staff member. N.J.A.C. § 6A:9-17.4

Continue reading "New Jersey School Employees Must Report Criminal Charges To Superintendent" »

In a published opinion dated February 9, 2011, Judge Mitchel E. Ostrer, Superior Court of New Jersey, Law Division-Criminal Part, Mercer County, in State v. Henry provides guidance regarding custodial jail sentences imposed for driving while intoxicated, N.J.S.A. 39:4-50. A term of incarceration may be imposed for DWI/DUI for a first time offender up to 30 days in jail, for a second time offender up to 90 days in jail, and for a third time offender a mandatory 180 days in jail.

The Judge concluded for DWI jail sentencing, "that it should apply, with appropriate tailoring, the aggravating and mitigating factors prescribed by the Criminal Code for sentencing of offenses and crimes, N.J.S.A. 2C:44-1. Even if the factors are not mandated, they provide appropriate guides for the court's exercise of discretion." There may also be "additional relevant factors, in deciding whether to impose a sentence of imprisonment, and the length of such sentence."

In citing State v. Moran, 202 N.J. 311 (2010) and providing additional factors from the Criminal Code, the court's opinion listed the following aggravating and mitigating factors:

Aggravating factors:

1. The nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public.
2. The defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions.
3. Whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation.
4. The need for personnel deterrence.
5. Prior criminal record and the seriousness of the offenses of which he has been convicted.
6. Extreme blood alcohol level ("BAC").

Mitigating factors:

1. Whether defendant's conduct caused physical harm or property damage.
2. Whether the defendant was infraction-free for a substantial period before the most recent violation.
3. Whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation.
4. Whether the defendant's conduct was the result of circumstances unlikely to recur.
5. Whether incarceration would cause excessive hardship to the defendant and/or dependants.
6. Whether the defendant did not contemplate that his conduct would cause or threaten serious harm.
7. There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense. This includes alcoholism.
8. The defendant is particularly likely to respond affirmatively to probationary treatment.
9. The willingness of the defendant to cooperate with law enforcement.
10. The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.

It is important to review these factors with an experienced criminal defense attorney if you are facing the possibility of jail time for driving while intoxicated.

Continue reading "New Jersey Law Division Judge Provides Guidance For Jail Sentencing For Drunk Driving." »

Many states, in seeking to minimize the usually harmful and often tragic effects of drunk driving, have enacted tough drunk driving laws. In order that such laws not be circumvented by the simple expedient of the suspected drunk driver refusing to take a breathalyzer test , many states have added to their drunk driving laws statutes that make such a refusal a conviction substantively analogous, in terms of penalties incurred, to a DWI conviction. That is to say, where a suspected drunk driver refuses to take such a test, that driver in effect is deemed, for all practical purposes, to have been driving drunk.

If that seems constitutionally breathtaking, it is important to remember that driving is not a right, but a privilege, and so states have wide latitude to regulate the act of driving.

The issue decided by the New Jersey Supreme Court presents a particular and perhaps an until-now unconsidered ramification of New Jersey's refusal statutory provision (New Jersey Statute 39:4-50.4a). Namely, may (or must) a breathalyzer conviction be stacked up alongside actual DWI convictions for the purpose of complying with statutory provisions concerning minimum sentence guidelines for driving while intoxicated repeat offenders. See State v. Ciancaglini, Supreme Court of New Jersey, A-92/93 September Term 2009, argued November 8, 2010, decided January 19, 2011.

In the case before the New Jersey Supreme Court, Eileen Ciancaglini had been convicted of a DWI offense back in 1979. In 2006, she was stopped by police but refused to take a breathalyzer test. She was convicted for that refusal. Then in 2008 she again was convicted of DWI. The trial judge in the 2008 matter sentenced her as a third time offender, pursuant to New Jersey law. The judge considered the 2006 refusal conviction to be the second DWI offense, making the 2008 offense the third offense. Ms. Ciancaglini was then sentenced to six months in jail and ten-year driver's license suspension.

As stated above, states generally have wide latitude in regulating the driving privilege. One can see the problem with respect to Ms. Ciancaglini's case. Now what is at stake are not fines and license revocation (although this latter sanction was realized), but rather whether the refusal conviction can be stacked with actual DWI convictions in order to put someone in jail for a significant amount of time. On appeal from the initial ruling, a Law Division judge said the refusal conviction should not have been counted as a DWI conviction. Last year, an Appellate Division court disagreed and said that the refusal conviction should have been counted. See opinion of the Appellate Division here. The New Jersey Supreme Court has settled the matter.

The New Jersey Supreme Court opinion holds:
"The defendant's prior refusal conviction cannot be considered as a "prior conviction" for purposes of her subsequent DWI conviction."

The Court based this holding on the legislative intent and legislative history of New Jersey's driving while intoxicated statute (New Jersey Statute 39:4-50) and refusal statute (New Jersey Statute 39:4-50.4a). The Court stated:
" In this case, although N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50a are both part of a statutory complex designed to rid the highways of drunk drivers and to make our roads safer, each is a separate section (each referring to "this section") with a different, albeit related, purpose, and each has different elements."

Each statute has penalties based on the number of prior offenses. "The penalties for each refusal offense now essentially mirror the penalties for each offense of DWI, but no custodial sentence is authorized as the result of a refusal conviction."

The sentence imposed by the Law Division was reinstated which was a fine of $500 (plus $336.50 in fees, surcharges and costs), a thirty-day jail term, a twelve-month license suspension, and a twelve-hour commitment at the Intoxicated Driver Resource Center. The Defendant's refusal convction could not be considered as a prior DWI violation for enhancement purposes, and thus she is not precluded from the benefit of the "step down" under New Jersey Statute 39:4-50 for a prior DWI, because her first DWI conviction (1979) was more than ten years prior to her second, the 2008 DWI conviction. New Jersey's DWI law provides a "step down" if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

Continue reading "New Jersey Supreme Court Provides Answer To Important DWI Question: A Refusal To Take A Breathalyzer Conviction Is NOT The Same As A DWI Conviction." »

In the case of the State of New Jersey v. Bell, the defendant, convicted of shoplifting, and having had prior convictions for shoplifting, was sentenced by the trial judge to 180 days in jail, pursuant to N.J.S.A. 2C: 20-11, which provides in part,

"Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C:43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows: for a first offense, at least ten days of community service; for a second offense, at least 15 days of community service; and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days."

A New Jersey Appellate Division panel in an unpublished decision ruled the defendant's sentence be reconsidered at the trial level. The statute mandates a minimum of 90 days in jail for conviction of a fourth offense and because the defendant met that standard, the appeals panel would have found no problem had the trial judge merely imposed that statutory minimum jail sentence. The appeals panel had no necessary problem with the imposition of the 180 day jail sentence as such. The panel's problem with the imposition of the sentence concerned the fact that the trial judge, in going beyond the statutorily mandated minimum sentence, made no inquiry into whether the greater sentence would "entail excessive hardship". Moreover, even had the judge made such an inquiry, there was nothing in the record stating why the greater sentence was justified in light of any excessive hardship.

The defendant stated that the imposition of the extra ninety days of her jail sentence would represent an excessive hardship with respect to her care of her infant twin children. The matter of the defendant's jail sentence will now go back to the trial court level for reconsideration. It is important to note that the same 180 day sentence may be the result of the impending reconsideration.

It may be, for example, that the trial judge had legally sound reasons for the imposition of the harsher sentence, and had simply failed to include them, or any description of the deliberative process that led to them, in the trial record.

SOURCE:
State v. Bell, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, DOCKET NO. A-1844-09T3, decided September 22, 2010.

This term, the United States Supreme Court will hear arguments in the case of Gould v. United States. The question the case presents to the Court's Justices is an interesting one. Incidentally, newly minted Associate Justice Elena Kagan has recused herself from the case: she is the immediate past Solicitor General of the United States, and held that office while her staff was preparing for the Gould case. Here is how the Court's website articulates the question presented in the Gould case:

Did the United States Court of Appeals for the Fifth Circuit correctly hold, in direct conflict with the Second Circuit (but in accordance with several other circuits), that a mandatory minimum sentence provided by 18 U.S.C. § 924(c)(I)(A) applies to a count when another count already carries a greater mandatory minimum sentence?

Source: http://www.supremecourt.gov/qp/09-07073qp.pdf

That articulation of the issue may seem more mysterious than interesting, so here is the heart of the matter restated by James McHale and Alexander Malahoff, two law students at Cornell University's law school, who have written an exhaustive and recommended analysis of both Gould and its companion case, Abbott. The analysis, from which the excerpt below is taken, is available on Cornell Law School's estimable website:

"18 U.S.C. § 924(c)(1)(A) requires a 5-year minimum sentence for possessing a firearm in furtherance of a drug-trafficking crime - '[e]xcept to the extent that a greater minimum sentence is otherwise provided by . . . any other provision of law."

Did the U.S. Court of Appeals for the Fifth Circuit correctly hold, despite this 'except' clause, that a defendant is subject to the 5-year minimum sentence for the firearm possession even though another provision of law requires a greater minimum sentence for another count of conviction?"

In a nutshell, Mr. Gould committed a drug crime, the minimum sentence for which exceeded the five years called for under the federal statute under review, 18 U.S.C. § 924(c)(1)(A). What Mr. Gould is arguing is that, because his conviction for the underlying crime necessarily resulted in a prison term in excess of five years, he should be exempted from the additional punishment of five years called for under the statute under review- which runs consecutive to the prison term for the underlying crime.

The larger issue in Gould, and also Abbott, is what scope the Supreme Court will give to the 'except' clause in the federal statute. If, for example, the Court rules that the 'except' clause's reference to "any other provision of law" refers only to other provisions of law covering the same offense, then many convicted defendants will face longer prison terms than would be the case, for example, if the firearm charge pursuant to the statute were merged into the underlying and predominant charge a defendant is charged with.

Conversely, if the Court rules that the 'except' clause's reference to "any other provision of law" applies to . . . any other provision of law (that is to say, without regard to the substance of the charge), then the federal statute, enacted to express society's view of violent drug crime, will be devitalized.

With the holiday season upon us, stores have prepared themselves for not only an influx of holiday shoppers, but also a possible increase in shoplifting. The consequences of shoplifting in New Jersey are serious, and punishments increase along with the value of the stolen goods.

Under New Jersey Statute 2C:20-11, shoplifting is considered a second degree crime if the value of the goods stolen is $75,000.00 or more, or the merchandise was stolen in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $1,000.00 or more. Shoplifting is considered a third degree crime if the value of the items is more than $500 but less than $75,000, and a fourth degree crime if the value of the stolen goods is between $200 and $500. Any price under $200 and shoplifting is considered a disorderly persons offense.

There is a presumption in New Jersey, as stated in New Jersey Statute 2C:20-11(d), that any items that are concealed purposely were concealed with the intent of taking them without paying for them.

The charge of shoplifting can have serious penalties including mandatory fines, the payment of restitution to the victim, a jail or prison term, community service, probation, and loss of your driving privileges. Through plea agreements and diversionary programs an experienced criminal defense attorney may be able to substantially limit the penalties you are facing.

Shoplifting may seem like a minor crime but a person arrested for and convicted of shoplifting can face a lifetime of consequences and in the future may have difficulty obtaining employment. Facing a criminal charge of shoplifting is a serious matter and if you or someone you know has been arrested and charged with shoplifting it is recommended that you speak with an experienced New Jersey criminal lawyer who will represent you throughout the proceedings and will be able to answer any questions you may have in a thorough and professional manner.

In the recent case of State v. Wingate, a New Jersey Appellate panel, in a per curiam opinion, let stand the defendant's drug conviction, but vacated the sentence the trial judge imposed for that conviction. The appellate panel noted that the trial judge relied on the defendant's prior criminal history, as it was related in the Presentence Investigation Report , to decide on the appropriate sentence. The sentence the trial judge imposed was at the top of the second-degree range of New Jersey's sentencing guidelines.

A Presentence Investigation Report includes information that will aid a judge, for example, in determining the most appropriate sentence for a given defendant. Included in a Presentence Investigation Report, when applicable, is a defendant's prior criminal history. A defendant's prior criminal history is generally seen as probative, or relevant, for the purpose of sentencing for subsequent crimes. That view is supported by such data as, for example, recidivism rates in the State of New Jersey. The thinking is that people with a record of committing crimes will generally continue to commit crimes. This assumption has a flip-side, which tends to favor first-time criminal defendants: a defendant's absence of prior criminal trouble often leads to a reduced sentence for the crime before the court. It is important to remember, however, that each individual is just that: an individual. Sometimes a first-time offender will prove more criminally incorrigible than an individual who had been a repeat offender, but whose offenses were to some degree tied to circumstances in his or her life which no longer obtain.

Under New Jersey rules of evidence in criminal trials, the circumstances under which a trier of fact may consider a defendant's criminal history for the purpose of determining guilt for a particular crime are circumscribed. However, a judge imposing a sentence on a defendant already convicted by the trier of fact has broad latitude to consider that defendant's criminal history in the sentencing decision.

Nevertheless, where the criminal history considered by the trial judge is inaccurate, and inaccurate in such a way as to prejudice the defendant, it seems clear that a correction needs to be made.

In State v. Wingate, the Appellate panel came to that very conclusion. The Appellate panel's vacating of the sentencing order means that issue will be returned to the trial level for reconsideration, this time in light of an accurate reporting of the defendant's criminal record.

SOURCE:

STATE OF NEW JERSEY, Plaintiff-Respondent,
v. VINSON WINGATE, Defendant-Appellant.
No. A-4498-08T4. Superior Court of New Jersey, Appellate Division. Submitted September 7, 2010. Decided September 24, 2010.

What was for a long time an under the radar but growing trend has now turned into a full blown epidemic not only in New Jersey but throughout the United States. Abuse of prescription drugs, such as OxyContin, Percocet, Vicodin, Xanax, and Morphine is resulting in numerous arrests and deaths, and is ruining the lives of thousands of Americans a year.

Among adolescents, prescription drugs have replaced heroin and cocaine as a first use drug, with many teens and young people finding the drugs in their own homes. According to the Partnership for a Drug Free America, prescription drug abuse now ranks behind only marijuana in the rate of usage among teenagers. See this informative advertisement.

In New Jersey prescription drugs are classified as a controlled dangerous substance (CDS) and penalties for the possession or possession with intent to sell can result in fines in the tens of thousands of dollars, long probationary periods and even jail or prison time. Related offenses, such as forging prescriptions in order to purchase more prescription drugs, or prescription fraud can also result in harsh penalties up to and including jail or prison time. Penalties for possession or sale of a controlled dangerous substance are heightened, with offenders often facing twice the amount of time in prison before being eligible for parole, if they are arrested in a school zone or are arrested for selling to minors. N.J.S.A. 2C:35-10

Though prescription drug abuse among teens and young adults is widespread the work of law enforcement authorities and also of drug rehabilitation and drug education programs are contributing to a new awareness of prescription drug abuse.

Being arrested for possession of a controlled dangerous substance such as prescription drugs is a serious offense. If you or someone you know has been arrested for a drug offense consult an experienced New Jersey criminal law attorney immediately. An experienced criminal defense attorney may be able to resolve your case through a diversionary program to avoid the substantial penalties you currently face and help get your life back on track.

In a story that appeared in the online edition of the Star Ledger on October 6, reporter Steve Strunsky writes that the lawyer for Dharun Ravi issued a statement in which he expressed some confidence that his client would not face bias or hate crime charges in connection with the tragic case that caused Rutgers student Tyler Clementi to take his own life.

Mr. Ravi's lawyer, Steven D. Altman, takes his confidence from what he sees as the Middlesex County Prosecutor's Office deliberate handling of the case against Mr. Ravi. As Steve Strunsky reports, Mr. Altman feels a thorough collecting of the facts surrounding the case will benefit his client, and that, "nothing will be learned to justify, warrant or support the filing of any bias criminal complaint."

Meanwhile, Middlesex County Prosecutor Bruce Kaplan maintains that no final decision has been made with respect to any additional charges being filed against Mr. Ravi. Mr. Kaplan says that decision awaits an evaluation of all the evidence currently being gathered.

For now, Mr. Ravi and Molly Wei, also charged in connection with the case, have been charged with third and fourth degree invasion of privacy crimes.

It is interesting to note that New Jersey's hate crime statute, as it then existed, was reviewed by the United States Supreme Court in the 2001 case of New Jersey v. Apprendi. At the time of the Apprendi case, an interesting aspect of New Jersey's hate crime statute was codified as N.J.S.A. 2C: 44-3(e), which, as a result of the Apprendi decision, was repealed by the New Jersey state legislature .

For the majority of the Supreme Court Justices in Apprendi, the problem with New Jersey's hate crime statute was that it allowed a judge to impose an enhanced prison sentence if the judge was satisfied, by a preponderance of the evidence, that the elements of the hate crime statute has been satisfied. Specifically, the justices in the majority had two problems with this scheme. First, in cases where a jury decided guilt on the underlying crime, the justices thought it improper for the judge presiding over the case to make a separate finding of guilt with respect to the elements of the hate crime statute. Second, the standard of proof under which the judge was to make that determination- a preponderance of the evidence- was a far lower evidentiary standard than what is used in criminal trials: beyond a reasonable doubt.

Under the New Jersey hate crime statute as it was written at the time of Apprendi, a judge could condemn a defendant to prison time over and above that prescribed for the underlying crime, and do so on the basis of a civil law standard of proof. The holding in Apprendi struck down the New Jersey hate crime statute as a violation of constitutional protections owed defendants facing a loss of their freedom. Here is Justice Stevens, writing for the Court in Apprendi:

"In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." 526 U. S., at 252-253 (opinion of Stevens, J.); see also id., at 253 (opinion of Scalia, J.).[16]

The New Jersey statutory scheme that Apprendi asks us to invalidate allows a jury to convict a defendant of a second-degree offense based on its finding beyond a reasonable doubt that he unlawfully possessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree, N. J. Stat. Ann. § 2C:43-6(a)(1) (West 1999), based upon the judge's finding, by a preponderance of the evidence, that the defendant's "purpose" for unlawfully possessing the weapon was "to intimidate" his victim on the basis of a particular characteristic the victim possessed. In light of the constitutional rule explained above, and all of the cases supporting it, this practice cannot stand."

What all this means for Mr. Ravi and Ms. Wei is that, should they be charged with a bias crime, the jury will have to determine their motivations for the crimes charged- if crimes they are determined to be- and they must determine those motivations beyond a reasonable doubt.

In January 2010, legislation was passed and signed which changed the expungement laws in New Jersey. Expungement is the process whereby a person previously arrested and/or convicted of a crime, disorderly persons offense, petty disorderly persons offense or municipal ordinance violation can have his or her record expunged or hidden so no one can know that he or she has a "criminal record." Expunging your criminal record can be very beneficial as most employers conduct criminal background checks. You don't want to lose a job offer because of that crazy night you had in college or that one night you smoked weed on the beach after high school graduation. See New Jersey Statute 2C:52-1 for the statutory definition of expungement.

The expungement laws of New Jersey are found at New Jersey Statute 2C:52-1 through 2C:52-32. The laws now allow for an expungement petition to be filed after a shorter waiting period and allow for expungement of third and fourth degree drug convictions. N.J.S.A. 2C:52-2. Previously, a person seeking an expungement for a crime would have to wait ten years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, to file a verified petition for expungement. To seek an expungement you must not have been convicted of any prior or subsequent crime, in New Jersey or any other jurisdiction or not be adjudged a disorderly person or petty disorderly person on more than two occasions. N.J.S.A. 2C:52-2.

The current law now allows for the granting of an expungement after at least five years. The new law states:
(1) less than 10 years has expired from the satisfaction of a fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or
(2) at least five years has expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction.
N.J.S.A. 2C:52-2.

A court may consider the amount of the fine or fines imposed, the person's age at the time of the offense, the person's financial condition and other relevant circumstances regarding the person's ability to pay to determine if compelling circumstances exist for granting an expungement. N.J.S.A. 2C:52-2. Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought. N.J.S.A. 2C:52-2.

The law now allows for an expungement of a third or fourth degree sale or distribution of drug conviction if the court finds the expungment is consistent with the public interest, giving consideration to the nature of the offense and the petitioner's character and conduct since conviction. Previously, only drug charges for marijuana of 25 grams or less and hashish of five grams or less could be expunged. N.J.S.A. 2C:52-2(c).

Motor vehicle violations are not able to be expunged. See N.J.S.A. 2C:52-28.

Additionally, if you are seeking an expungement of a disorderly persons offense or a petty disorderly persons offense you must wait five (5) years from the date of conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later. N.J.S.A. 2C:52-3.

If you are seeking an expungement of a municipal ordinance violation you must wait two (2) years from the date of conviction, payment of the fine, satisfactory completion of probation or release from incarceration, whichever is later. N.J.S.A. 2C:52-4.

If you are seeking an expungment of a juvenile delinquency adjudication you must wait five years from the final discharge of the person from legal custody or supervision or after the entry of any other court order not involving custody or supervision. N.J.S.A. 2C:52-4.1

Furthermore, you can also seek expungement for an arrest not resulting in a conviction. For example, if you were arrested and charged with a crime, disorderly persons offense, petty disorderly persons offense, or municipal ordinance and the charge was dismissed, you were acquitted or the charge was dismissed pursuant to a program of supervisory treatment you can seek an expungement six(6) months after the order of dismissal or adjudication. N.J.S.A. 2C:52-6.

There are also a number of crimes that cannot be expunged, which include: murder/homicide, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged. Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Criminal Homicide, except death by auto; Kidnapping; Luring or Enticing; Human Trafficking; Aggravated Sexual Assault; Aggravated Criminal Sexual Contact; if the victim is a minor, Criminal Sexual Contact; if the victim is a minor and the offender is not the parent of the victim, Criminal Restraint or False Imprisonment; Robbery; Arson and Related Offenses; Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child; Endangering the welfare of a child; Causing or permitting a child to engage in a prohibited sexual act; Selling or manufacturing child pornography; Perjury; False Swearing; Knowingly promoting the prostitution of the actor's child; Terrorism; Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices; and conspiracies or attempts to commit such crimes. N.J.S.A. 2C:52-2(b).

Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment. N.J.S.A. 2C:52-2(b).

Hiring an experienced criminal defense attorney to process your expungement petition can save you time and future aggravation. The expungement process in the Superior Court of New Jersey can be a time consuming and frustrating process. An experience criminal defense attorney can determine if you are eligible for an expungment and file the petition. It is important to notify all law enforcement agencies that may have a record of your matter. If you miss one agency your "criminal record" may still be found by that future employer or nosy relative.

SOURCES

New Jersey State 2C:52-1 through 2C:52-32.

In State v. Laura Moran, a decision rendered on July 13, 2010 by the New Jersey Supreme Court, the Court illuminates and adds context to a previously ambiguous law that allows New Jersey municipal court judges to revoke a driver's license for willful driving violations.

New Jersey Statute 39:5-31 gives the municipal court judges the power to revoke a defendant's driver's license for certain willful driving violations. This statute seems to give the court a wide range of power in determining when a defendant's driver's license can be revoked and for how long, especially since the law does not provide any standards or guidelines for making such determinations. This issue was addressed in State v. Laura Moran where the defendant challenged the Aberdeen (Monmouth County) Municipal Court's decision to suspend her driver's license for 45 days based upon willful reckless driving.

The facts of this case involve Moran driving in a left turn only lane and passing two other vehicles in an intersection without making the left turn; in fact, she cut off one of the vehicles, a tractor trailer, while illegally merging into the appropriate lane. The observing officer testified that Moran was uncooperative and refused to provide him with appropriate documentation after pulling her over. Moran also refused to exit the vehicle upon request, and subsequently complied only after backup arrived. She received summonses for reckless driving (N.J.S.A. 39:4-96), improper display of license plate (N.J.S.A. 39:3-33), and obstruction of the windshield (N.J.S.A. 39:3-74). She also had a history of other numerous motor vehicle violations.

During the municipal court trial proceeding, Moran exhibited emotional and disruptive behavior. The trial court decided to suspend Moran's license based on both her "willful and wanton" violation of reckless driving and her "demeanor" in court. Both the New Jersey Superior Court Law Division and the Appellate Division upheld the trial court's sentencing. The case was then appealed to the New Jersey Supreme Court.

The New Jersey Supreme Court determined that the "willful" language in N.J.S.A. 39:5-31, which triggers license suspension, is better described as a deliberate or intentional disregard for lives or property while operating a vehicle. In short, this statute is invoked "only in reckless-driving cases that present aggravating circumstances."

The New Jersey Supreme Court then addressed the lack of standards governing license suspension in an attempt to curtail random and unpredictable sentencing. The Court held that license suspension, as well as the length thereof, should be determined by a trial court after considering several factors. The Court listed seven factors, while still allowing for other reasonable considerations that trial courts may find as relevant factors.

First, courts must consider the nature and circumstances of the defendant's conduct, including the level of risk involved and whether physical harm or property damage resulted. Second, the courts must consider the defendant's age, length of time as a licensed driver, and the number and seriousness of prior infractions. Third, courts must consider the length of time between infractions as well as whether the defendant's driving record indicates he/she is likely to commit another violation. Fourth, courts must consider whether the defendant's attitude indicates that he/she is likely to commit another violation. Fifth, courts must consider whether the defendant's conduct was the result of circumstances unlikely to occur. Sixth, courts must consider whether license suspension would cause excessive hardship to the defendant and/or dependents. Last, courts must consider the need for personal deterrence in order to prevent future violations.

The New Jersey Supreme Court noted that it remains within the trial court's power to determine the weight given to each factor in determining whether to suspend licenses, without abusing its discretion of course. The weight placed on these factors will vary on a case-by-case basis.

Requiring trial courts to state their reasoning for suspending licenses under N.J.S.A. 39:5-31 will strengthen appellate review and protect defendants from arbitrary sentencing. Because of the New Jersey Supreme Court's decision of this case, N.J.S.A. 39:5-31 can no longer be seen as a vague statute giving unbridled discretion to courts.

The Supreme Court reversed the Appellate Division's sentencing decision and remanded the case back down to the municipal court to consider the factors listed in the opinion.

If you have been charged with a serious traffic violation it is important to discuss the seven factors listed above with an experienced criminal defense attorney to determine if the municipal court judge may suspend your driver's license. An experienced criminal defense attorney may be able to argue to the municipal court judge that your facts and circumstances do not warrant a license suspension.

SOURCES

New Jersey Statute 39:5-31
State of New Jersey v. Laura Moran, Supreme Court of New Jersey, A-55-09, decided July 13, 2010.

On March 12, 2010 Lauren M. Carty of Little Silver, Monmouth County, New Jersey was sentenced by New Jersey Superior Court Judge Richard W. English at the Monmouth County Courthouse to a five-year flat prison term and ordered to pay $758,000.00 in restitution. Ms. Carty stole nearly $1 million from Wellington Place Condominium Association in Aberdeen, New Jersey as an owner of Property Management Association LLC. The co-defendant and mother of Lauren Carty, Marie Carty is scheduled to be sentenced at a future date. The defendants stole an estimated $995,000 of condominium association money from January 2005 through September 2006. The stolen money was used for personal items, including trips to Florida and clothing.

The defendant is 33 years old now and after serving her prison term she should spend the rest of her working life to pay back the $758,000.00 in restitution ordered by the Judge. N.J.S.A. 2C:44-2 provides the court with the authority to sentence a defendant to pay restitution. Additionally, if the defendant defaults on payments of restitution the Court has authority to impose a term of imprisonment, participation in a labor assistance program or enforced community service. These options shall not reduce the amount owed by the person in default. N.J.S.A. 2C:46-2.

It is likely that the defendant in this case will default on the restitution payments. Even if the $758,000 was divided over 30 years she would have to earn an additional $25,266.67 a year to meet her payment obligations. The defendant will probably never pay back the condominium association in full. It will be extremely difficult for the defendant to earn a living after being released from prison. The defendant will now have to disclose on employment applications she is a criminal. This defendant was also self-employed as the owner of the property management company. It will be tough for her to earn a living to support herself and her family after leaving prison. Finding a way to pay back the stolen money may be impossible.

The restitution laws should be revised to allow the court to order that the defendant sell any real estate or personal property they own to pay a portion of the resitution judgment. For example, this defendant should be ordered to sell her clothes that she bought from the stolen monies. Forcing the sale of the defendant's home in this case may not be beneficial. According to open public land records available through the Monmouth County Clerk's Office the Carty/Reid home in Little Silver may be in foreclosure as a lis pendens was filed in May 2007, possibly a reason why someone would resort to stealing money.

Source: Asbury Park Press, March 15, 2010, page B1, by Charles Webster, Staff Writer

The New Jersey statute regarding installment payments has changed. The New Jersey Supreme Court issued Directive #02-10 on March 2, 2010 to provide guidance to municipal courts for the changes to New Jersey Statute Annotated 2B:12-23.1, effective January 18, 2010. Municipal courts in New Jersey hear disorderly and petty disorderly person offenses, other non-indictable offenses, motor vehicle and traffic violations, fish and game regulations and boating laws, and violations of county and municipal ordinances. In most matters cases are resolved by the municipal court judge imposing a monetary penalty or fine. Many defendants have a difficult time making the payment on the day they are sentenced.

N.J.S.A. 2B:12:23.1 allows for the municipal courts of New Jersey to order payment of the fines/penalties in installments for a period of time determined by the court. This statute does not apply to the payment of restitution to the victim of a crime or the $250 surcharge assessed for unsafe driving (New Jersey Statute 39:4-97.2).

The New Jersey Supreme Court directive #02-10 states that the defendant must complete a financial questionnaire in order for the municipal court judge to make a decision regarding the defendant's ability to pay. One factor the judge should consider is if the defendant's earnings are less than 250% of the federal poverty guidelines to be considered for time payments which is an annual gross income of $27,075 for a one person household, $36,425 for a two person household, $45,775.00 for a three person household, and $55,125.00 for a four person household.

A defendant shall be considered to default on time payments if the defendant's driver's license is suspended for failure to pay (N.J.S.A. 2B:12-31(a)(2) or if an arrest warrant has been issued for the defendant after failure to pay. Upon defaulting on time payments the municipal court can institute the alternatives listed in the statute after finding the defendant does not have the ability to pay. The judge must state on the record the reason for changing the sentence and the implementation of alternatives for any payment of fines/penalties.

If a person defaults on any payments and the municipal court finds that the defendant does not have the ability to pay the court has five options: (1) reduce the penalty, suspend the penalty, or modify the installment plan; (2) order that credit be given against the amount owed for each day of confinement, if the court finds that the person has served jail time for the default; (3) revoke any unpaid portion of the penalty, if the court finds that the circumstances that warranted the imposition have changed or that it would be unjust to require payment; (4) order the person to perform community service in lieu of payment of the penalty; or (5) impose any other alternative permitted by law in lieu of payment of the penalty. These five options give municipal court judges too much discretion.

In practice, criminal defense attorneys must be aware of their client's financial ability to pay prior to appearing in court. The criminal defense attorney must advise their clients in advance of the possible penalties to be imposed and question the client's ability to pay. Furthermore, if the defendant does not have the ability to pay a substantial fine, for example a driving while intoxicated or a large fine for a municipal ordinance violation which could be up to $2,000, the defendant should be prepared with his or her financial earnings information to complete the financial questionnaire. In order to expedite the decision of the judge regarding the defendant's ability to pay the municipal court should make available prior to court the financial questionnaire. In the alternative, the Administrative Office of the Courts of the State of New Jersey should make available a standard financial questionnaire form to be used by all municipal courts and have this form downloadable online.

Furthermore, the Supreme Court's directive does not list other factors that the municipal court should consider in determining the defendant's ability to pay. The Court only states one factor, whether the defendant's income is less than 250% of the federal poverty guidelines. By only listing this one factor the Supreme Court seems to imply that if you are under the annual gross income levels you are eligible for time payments. Income alone does not show a person's ability to pay the court imposed fine or penalty. The financial questionnaire should list other factors for the court to consider such as the defendant's current financial liabilities including rent payments, mortgage payments, auto payments, insurance payments, child support, medical expenses, and any other monthly living expenses.

The Supreme Court should consider requiring all municipal courts to have a credit card payment option. This may reduce the need for time payments to be decided by the municipal court judges. Municipal court judges should not be wasting valuable judicial resources on reviewing the financial questionnaire of a defendant. Defendants need to be aware of the possible penalties and fines that could be imposed and make arrangements to pay the fine prior to appearing in court.

Additionally, the Court or legislature should put monetary values on community service and jail confinement, if these alternatives to payments are imposed after a defendant's failure to pay. For example, for every hour of community service the defendant should be credited $10.00, or for every day of jail confinement a defendant should be credited $50.00. This would allow for fairness to people who can pay their fines and penalties.

The municipal courts will continue to struggle with payments of fines and penalties by defendants until the New Jersey Supreme Court makes clearer rules and regulations and takes discretion out of the hands of the municipal court judges.

Sources: N.J.S.A. 2B:12:23.1
Administrative Office of the Courts, Directive #02-10