The Process

Each criminal defense case is different, but most cases involve a process that can be confusing and overwhelming, from the initial complaint being filed to an individual’s sentencing in court.

Filing of a Complaint

An individual accused of a crime (a defendant) is charged as a result of the filing of a formal complaint issued by a law enforcement agent or a citizen who believes prohibited conduct has been committed against a person or property. The criminal complaint can be issued in the form of an arrest warrant or a summons.

A summons permits the defendant to be released without a bail. An arrest warrant requires bail to be set. 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).

First Appearance in Court

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 in court, 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 and their bail is reviewed.

Bail

Reviewing the defendant’s bail takes place during their initial appearance in court. Bail is required to be set within twelve (12) hours of the issuance of a complaint. All defendants have a right to bail under the New Jersey Constitution. If bail is posted, defendants are released until the charges listed in the complaint are resolved. Defendants can be required to post funds or property to assure that they will appear in court in the future. They may be required to deposit funds or property in exchange for a promise to appear.

If defendants have significant ties to the community, or no criminal history, they may be considered for a Release on Own Recognizance or R.O.R., which is an affidavit certifying that they are aware of the charges leveled against them, and will appear in court to face them. Defendants may also be required to give a personal bond, which is a promise to appear or face a judgment, whereby a specified amount of money is forfeited.

Some defendants pay a bail bondsman to post funds on their behalf. These defendants may be ordered to post a higher bail, or have no bail set. They will remain in jail until the charges are disposed. If they are released and appear in court as required, bail money may be refunded in full upon case resolution or disposition. Once defendants are released, bail is discharged to the surety.

Right To Legal Counsel

At their first appearance defendants are advised of their right to legal counsel. This means that they are entitled to have an attorney represent them and answer the charges. If they indicate that they are unable to afford an attorney, the Court’s Criminal Division staff is assigned to conduct indigence investigations.

Those investigations consider a defendant’s assets and liabilities, and recommend that cases be assigned to a public defender if a defendant is unable to afford a private attorney. The defendant will then need to fill out an application for the public defender, which is reviewed and approved by the Court. The application is referred to as a “5A”.

Substance Abuse Evaluations

Substance abuse evaluators interview defendants charged with drug and property offenses to determine the extent of their involvement with addictive drugs. Working within the Criminal Division’s Treatment Assessment Services for the Courts (TASC), these professional evaluators interview defendants, subject them to urine screening to identify current drug use, and prepare drug assessments or reports for criminal judges, detailing drug abuse histories, identifying treatment needs and recommending counseling at local drug and alcohol treatment centers when support is needed to overcome addiction.

Judges may order defendants into drug or alcohol treatment as a condition of their bail or probation.

Pre-Indictment

Following the filing of a complaint and the first court appearance, the complaint, police reports and evidence are provided to the Burlington County Prosecutor’s Office, Screening-Grand Jury Unit. There an assistant county prosecutor who determines whether to pursue a criminal complaint and if the case has merit and sufficient evidence to pursue a conviction.

This process includes the reviewing of police reports and interviews victims and witnesses to determine if the original criminal 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.

Plea Bargains

In many cases, the prosecutor and a defendant’s lawyer will negotiate a plea bargain. In a plea agreement, the prosecutor may offer the accused an arrangement where s/he will recommend a reduced term of incarceration or probation in exchange for a guilty plea. In some instances, the charges are reduced or dismissed as part of the plea bargain. Maximum sentence terms may also be part of negotiated agreements.

Defendants pleading guilty as a result of the plea agreement must acknowledge their plea in open court. New Jersey does not allow for defendants to accept a plea without admitting to conduct in open court.

An attorney can help you decide if you should go to trial or take the plea bargain and should know how to spot the signs of a weak criminal case that could potentially be dismissed.

Pre-Trial Intervention Program (“PTI”)

The Pre-Trial Intervention Program (“PTI”) is a diversionary program that permits certain defendants to avoid formal prosecution and conviction by entering into a term of court supervised community living, often with counseling or other support. Defendants opting for this program apply directly to Criminal Division Management. Case supervisors conduct investigations into the history of all applicants, to ensure their eligibility. Admission to the program requires the consent of the prosecutor, the Criminal Division Manager and the criminal judge.

Defendants charged with violent offenses generally are not admitted. Probationers and parolees are also generally excluded, since they have prior convictions. Persons accused of racketeering or organized crime are generally not admitted, as well as public officials who are accused of abusing their positions for personal gain against the public trust. Prosecutors must be consulted before an applicant charged with a first or second degree crime can even be considered for PTI.

The objective of PTI is to provide an incentive for first time non-violent offenders to rehabilitate. Conditions attached to judicial orders for pretrial intervention may require defendants to obtain a substance abuse evaluation from TASC, participate in substance abuse or mental health counseling or community service, or submit to urine testing, pay restitution and fines, or give up a firearm or driver’s license. Participants have criminal charges formally suspended for up to three years.

Once a participant completes the program, charges are dismissed. However, if defendants fail to complete special conditions attached to their term of PTI supervision, the participant can be terminated from the program, triggering a resumption of the formal criminal process.

The Indictment Process

If a criminal case has not been downgraded, diverted, dismissed, or pled out 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 lists. It is their civic duty to serve. They 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. Neither the accused nor his attorney is present. Witnesses may testify regarding the crime. Defendants may testify, however, if they are requested to attend and elect to surrender their right against self incrimination as guaranteed by the constitution.

After considering the prosecutor’s evidence and the testimony of witnesses, if a majority of the 23 jurors vote to indict the defendant, he must face further criminal action. This 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 (21) 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 PTI, 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 fifty (50) days after an indictment. Upon notification by the Criminal Division, defendants must appear and face formal notification of their charges. At arraignment, the defendant enters a plea of “guilty” or “not guilty”. A plea of guilty may be to 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 six (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.

Trials

Defendants have a constitutional right to a jury trial. Defendants have the option to forego that right in favor of a trial by a judge in the Superior Court, Law Division-Criminal Part. At the close of the case, the jury decides the case (or a judge if the defendant elects to waive his/her right to a jury trial). The Jury may:

• Find Defendant Not Guilty (“acquitted”);
• Find Defendant Guilty of charge(s) or lesser included charge(s); or
• Hung Jury (unable to reach a decision).

Normally, an acquitted person has no further obligation to the court, unless they face new charges. Prosecutors have no right to appeal acquittals, and defendants may not be charged twice for the same offense. Defendants who are found guilty will then face sentencing, and the judge who tried their case renders the punishment.

Once a trial is concluded, criminal judges order a presentence investigation by the Criminal Division on all defendants who have been convicted. Judges set a date for sentencing. If the jury is “hung”, it is then up to the State (the prosecution) to decide whether or not it will try the case again, offer a plea and/or dismiss the case.

Presentence Investigations, Reports, and Sentencing

Criminal Division case supervisors perform presentence investigations for criminal judges who render sentences on all convicted defendants. The presentence investigation report is designed to assist a judge in weighing the circumstances of the crime and a defendant’s criminal and juvenile record and overall life situation to the severity of the sentence. The investigative reports provide a uniform assessment of a defendant’s overall family, medical and criminal background. Offense circumstances are summarized, as well as statements received from victims and their families.

Assessments of drug abuse history and the amenability to probation supervision and treatment are addressed. Financial conditions of defendants are considered because most sentences involve a fine, penalty, restitution or reimbursement to a victim. Assessments of defendants’ situations and their suitability for probation are also discussed. Reports generally recommend either prison or probation. Judges are obviously not bound by their advice, but their insight is essential in the criminal sentencing process.

These investigative reports include and address the following:

• Summaries of the offense circumstances
• Statements received from victims and their families
• Assessments of drug abuse history and the amenability to probation supervision and treatment
• Financial conditions of defendants, since most sentences involve a fine, penalty, restitution or reimbursement to a victim
• Assessments of defendants’ situations and their suitability for probation. Reports generally recommend either prison or probation. Judges are obviously not bound by their advice, but their insight is essential in the criminal sentencing process.

Judges consider the degree of harm and hardship imposed on victims and their families. Mitigating factors, or reasons explaining the crime in the light of a defendant’s past or present circumstances weigh against aggravating factors which are elements that speak to the severity of the crime.

Prior criminal record weighs heavily, and is an indicator of a defendant’s potential for rehabilitation based on his past history, as well as the risk posed for another crime if probation is ordered.

In most cases, sentencing judges have some discretion or choices on how they will sentence convicted criminals within the parameters of the Criminal Code. This discretion may extend to whether a defendant must serve time in prison, or receive a term of probation.

Of course, a judge’s discretion may be limited if there is a plea agreement which contains a sentencing recommendation. Some crimes, such as convictions for using a gun during a robbery, carry mandatory prison terms, where, the judge must sentence a criminal to prison for at least a minimum term.

Post-Conviction Motions

Defendants who are convicted of crimes may appeal their cases to the Superior Court, Appellate Division, which reviews trial records and decides if decisions made by judges in the Law Division-Criminal Part are fair and equitable. Defendants may file motions, or requests to their sentencing judge to have sentences modified, or for other relief.

Consult an Experienced Criminal Lawyer

If you have been charged with a Crime in Burlington, Camden, Mercer or Gloucester Counties, contact Rosenberg | Perry & Associates. As experienced criminal defense attorneys, we can assist and guide you through your criminal case process.