Criminal Statutes, Court Rules Jury Charges NJ : February 2011

Monday, February 21, 2011

Ecstasy - A Criminal Offense in New Jersey

According to New Jersey Police Departments, Ecstasy is a slang name for the chemical substance methylene dioxy methamphetamine, or MDMA, that combines a powerful stimulant with a hallucinogen. MDMA is chemically similar to the synthetic stimulant methamphetamine. Street "Ecstasy" could contain just about anything. It is generally manufactured in clandestine labs by criminal drug dealers, not chemists. Ecstasy usually comes in tablets, which have been found to contain anywhere from 0-50% MDMA. The most common non-MDMA ingredients in "Ecstasy" are aspirin, caffeine, and other over-the-counter medications. One of the most dangerous additives commonly found in "Ecstasy" is DXM (dextromethorphan,) a cough suppressant. In the doses usually found in fake Ecstasy, 13 to 14 times the amount found in cough syrup, DXM can cause hallucinations. DXM inhibits sweating, so it can cause heatstroke and death. Another dangerous adulterant in so-called Ecstasy is PMA (paramethoxyamphetamine), an illegal drug that is a potent hallucinogen. Like MDMA, PMA causes an elevation in body temperature, but at an even more drastic rate. Ecstasy tablets may be any color, and are generally embossed with a logo or design such as a butterfly, heart, lightning bolt, star, clover, or Zodiac sign. Ecstasy is sometimes found in powder or in capsules.

Penalties for Possession of Indictable Drugs in New Jersey- Possession of a Schedule I Narcotic

There are a number of viable defenses and arguments which can be pursued to achieve a successful result for someone charged with possession of Ecstasy or other Narcotics (CDS). Advocacy, commitment, and persistence are essential to defending a client accused of involvement with Narcotics. In New Jersey, there are drug laws which established Schedules of illegal drugs. Schedule I drugs are among the most serious. New Jersey does not call serious drug offense "felonies". They are called "crimes . New Jersey Statute 2C:35-10 makes it illegal to possess illegal drugs:

2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.

a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L. 1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:

(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S. 2C:43-3, a fine of up to $35,000.00 may be imposed;

(2) Any controlled dangerous substance, or its analog, classified in Schedule V, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S. 2C:43-3, a fine of up to $15,000.00 may be imposed;

(3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish is guilty of a crime of the fourth degree, except that, notwithstanding the provisions of subsection b. of N.J.S. 2C:43-3, a fine of up to $25,000.00 may be imposed; or

(4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person.

Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.

b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.

In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.

c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.

2C:43-1. Degrees of crimes 2C:43-1. Degrees of Crimes. a. Crimes defined by this code are classified, for the purpose of sentence, into four degrees, as follows:

(1) Crimes of the first degree;

(2) Crimes of the second degree;

(3) Crimes of the third degree; and

(4) Crimes of the fourth degree.

A crime is of the first, second, third or fourth degree when it is so designated by the code. An offense, declared to be a crime, without specification of degree, is of the fourth degree.

b. Notwithstanding any other provision of law, a crime defined by any statute of this State other than this code and designated as a high misdemeanor shall constitute for the purpose of sentence a crime of the third degree. Except as provided in sections 2C:1-4c. and 2C:1-5b. and notwithstanding any other provision of law, a crime defined by any statute of this State other than this code and designated as a misdemeanor shall constitute for the purpose of sentence a crime of the fourth degree.

Possible Jail and other Penalties

2C:43-2 Sentence in accordance with code; authorized dispositions. a. Except as otherwise provided by this code, all persons convicted of an offense or offenses shall be sentenced in accordance with this chapter.

b. Except as provided in subsection a. of this section and subject to the applicable provisions of the code, the court may suspend the imposition of sentence on a person who has been convicted of an offense, or may sentence him as follows:

(1)To pay a fine or make restitution authorized by N.J.S. 2C:43-3 or P.L. 1997, c.253 (C. 2C:43-3.4 et al.); or

(2)Except as provided in subsection g. of this section, to be placed on probation and, in the case of a person convicted of a crime, to imprisonment for a term fixed by the court not exceeding 364 days to be served as a condition of probation, or in the case of a person convicted of a disorderly persons offense, to imprisonment for a term fixed by the court not exceeding 90 days to be served as a condition of probation; or

(3)To imprisonment for a term authorized by sections 2C:11-3, 2C:43-5, 2C:43-6, 2C:43-7, and 2C:43-8 or 2C:44-5; or

(4)To pay a fine, make restitution and probation, or fine, restitution and imprisonment; or

(5)To release under supervision in the community or to require the performance of community-related service; or

(6)To a halfway house or other residential facility in the community, including agencies which are not operated by the Department of Human Services; or

(7)To imprisonment at night or on weekends with liberty to work or to participate in training or educational programs.

c. Instead of or in addition to any disposition made according to this section, the court may postpone, suspend, or revoke for a period not to exceed two years the driver's license, registration certificate, or both of any person convicted of a crime, disorderly persons offense, or petty disorderly persons offense in the course of which a motor vehicle was used. In imposing this disposition and in deciding the duration of the postponement, suspension, or revocation, the court shall consider the severity of the crime or offense and the potential effect of the loss of driving privileges on the person's ability to be rehabilitated. Any postponement, suspension, or revocation shall be imposed consecutively with any custodial sentence.

d. This chapter does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. Such a judgment or order may be included in the sentence.

e. The court shall state on the record the reasons for imposing the sentence, including its findings pursuant to the criteria for withholding or imposing imprisonment or fines under sections 2C:44-1 to 2C:44-3, where imprisonment is imposed, consideration of the defendant's eligibility for release under the law governing parole and the factual basis supporting its findings of particular aggravating or mitigating factors affecting sentence.

f. The court shall explain the parole laws as they apply to the sentence and shall state:

(1)the approximate period of time in years and months the defendant will serve in custody before parole eligibility;

(2)the jail credits or the amount of time the defendant has already served;

(3)that the defendant may be entitled to good time and work credits; and

(4)that the defendant may be eligible for participation in the Intensive Supervision Program.

g. Notwithstanding the provisions of paragraph (2) of subsection b. of this section, a court imposing sentence on a defendant who has been convicted of any offense enumerated in subsection a. of section 2 of P.L. 1994, c.130 (C. 2C:43-6.4) may not sentence the defendant to be placed on probation.

Conspiracy

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

2C:5-2. Conspiracy Conspiracy. a. Definition of conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

b. Scope of conspiratorial relationship. If a person guilty of conspiracy, as defined by subsection a. of this section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime.

c. Conspiracy with multiple objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship. It shall not be a defense to a charge under this section that one or more of the objectives of the conspiracy was not criminal; provided that one or more of its objectives or the means of promoting or facilitating an objective of the conspiracy is criminal.

d. Overt act. No person may be convicted of conspiracy to commit a crime other than a crime of the first or second degree or distribution or possession with intent to distribute a controlled dangerous substance or controlled substance analog as defined in chapter 35 of this title, unless an overt act in pursuance of such conspiracy is proved to have been done by him or by a person with whom he conspired.

e. Renunciation of purpose. It is an affirmative defense which the actor must prove by a preponderance of the evidence that he, after conspiring to commit a crime, informed the authority of the existence of the conspiracy and his participation therein, and thwarted or caused to be thwarted the commission of any offense in furtherance of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of criminal purpose as defined in 2C:5-1d.; provided, however, that an attempt as defined in 2C:5-1 shall not be considered an offense for purposes of renunciation under this subsection.

f. Duration of conspiracy. For the purpose of section 2C:1-6d.:

(1) Conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired; and

(2) Such abandonment is presumed with respect to a crime other than one of the first or second degree if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and

(3) If an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.

g. Leader of organized crime. A person is a leader of organized crime if he purposefully conspires with others as an organizer, supervisor or manager, to commit a continuing series of crimes which constitute a pattern of racketeering activity under the provisions of N.J.S. 2C:41-1, provided, however, that notwithstanding 2C:1-8a. (2), a conviction of leader of organized crime shall not merge with the conviction of any other crime which constitutes racketeering activity under 2C:41-1.

L. 1978, c. 95; amended by L. 1979, c. 178, s. 17; 1981, c. 167, s. 3; 1981, c. 290, s. 10; 1981, c. 511, s. 1; 1987, c. 106, s. 4.

If someone is charged with CONSPIRACY (N.J.S.A. 2C:5-2), the Judge will read the following instructions and law to the jury:

Under the __________ count of the indictment the defendant(s) is (are) charged with the crime of conspiracy to commit _____________. N.J.S.A. 2C:5-2 provides as follows:

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he/she:

(SELECT APPROPRIATE SECTION)

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

A conspiracy to commit the crime of ________________is a crime in itself separate and distinct from the crime of _______________. In other words, a defendant may be found guilty of the crime of conspiracy regardless of whether that defendant is guilty or not guilty of the crime of _____________________. In order for you to find a defendant guilty of the crime of conspiracy, the state must prove beyond a reasonable doubt the following elements:

(1) That the defendant agreed with another person or persons that they or one or more of them would engage in conduct which constitutes a crime or an attempt or solicitation to commit such crime;

That the defendant agreed to aid another person or persons in the planning or commission of a crime or of an attempt or solicitation to commit such crime.

(2) That the defendant's purpose was to promote or facilitate the commission of the crime of (Identify substantive offense).

A person acts purposely with respect to the nature of (his/her) conduct or a result thereof, if it is (his/her) conscious object to engage in conduct of that nature or cause such a result. A person acts purposely with respect to attendant circumstances if (he/she) is aware of the existence of such circumstances or (he/she) believes or hopes that they exist.

(CHARGE THE FOLLOWING FOR CRIMES OF THE THIRD AND FOURTH DEGREE - EXCEPT FOR CRIMES ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG)1

(3) That the defendant or a person with whom he/she conspired did an overt act in pursuance of the conspiracy. An overt act is any act in pursuance of the conspiracy.2

In order to find a defendant guilty of the crime of conspiracy, the State does not have to prove that (he/she) actually committed the crime of (Identify substantive offense). However, to decide whether the State has proven the crime of conspiracy you must understand what constitutes the crime of

(IF NOT PREVIOUSLY STATED GIVE MODEL CHARGE

FOR THE UNDERLYING OFFENSE)

A conspiracy may be proven by direct or circumstantial evidence. It is not essential that there be direct contact among all of the conspirators or that they enter the agreement at the same time. If the defendant is aware that any person (he/she) conspired with also conspired with others to commit the same crime, the defendant is guilty of conspiring with the others. He/she need not be aware of their identity. Mere association, acquaintance, or family relationship with an alleged conspirator is not enough to establish a defendant's guilt of conspiracy. Nor is mere awareness of the conspiracy. Nor would it be sufficient for the State to prove only that the defendant met with others, or that they discussed names and interests in common. However, any of these factors, if present, may be taken into consideration along with all other relevant evidence in your deliberations.

You have to decide whether the defendant's purpose was that he/she or a person with whom he/she was conspiring would commit the crime of _________________. For him/her to be found guilty of conspiracy, the State has to prove beyond a reasonable doubt that when he/she agreed it was his/her conscious object or purpose to promote or make it easier to commit the crime(s) or (Identify substantive offense). The nature of the purpose with which the defendant acted is a question of fact for you the jury to decide. Purpose is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example, that he/she acted with a specific purpose. It is within your power to find that proof of purpose has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances. It also makes no difference what the person or persons with whom the defendant actually conspired had in mind, so long as the defendant believed that he/she was furthering the commission of the crime of ____________________________.

(CHARGE THE FOLLOWING ONLY FOR THOSE CRIMES FOR WHICH IT IS NECESSARY TO PROVE OVERT ACTS, NAMELY ALL THIRD AND FOURTH DEGREE CRIMES EXCEPT THOSE ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG)

I have already explained that to find the defendant guilty of conspiracy you have to be convinced beyond a reasonable doubt that he/she agreed with somebody in the manner and with the purpose I described. In addition, for this type of conspiracy, one of the conspirators must have done at least one overt act in furtherance of the conspiracy, that is, any act directed toward the objective of committing the crime of (Identify substantive offense).3 The State is not required to prove an overt act by every conspirator. The State is only obligated to prove one overt act by any conspirator.

WHERE APPLICABLE, SET FORTH THE OVERT ACTS IN EVIDENCE.

In order to convict you have to be satisfied beyond a reasonable doubt that the State has proven an overt act by a conspirator in furtherance of the conspiracy.4

In summary, the State must prove the following elements:

(1) That the defendant agreed with another person or persons that they or one or more of them would engage in conduct which constitutes a crime or an attempt or solicitation to commit such crime;

That the defendant agreed to aid another person or persons in the planning or commission of a crime or of an attempt or solicitation to commit a crime.

(2) That defendant's purpose was to promote or facilitate the commission of the crime of ___________________________.

(CHARGE THIRD ELEMENT BELOW - ONLY FOR CRIMES OF THE THIRD AND FOURTH DEGREE -- EXCEPT FOR CRIMES ALLEGING DISTRIBUTION OR POSSESSION WITH INTENT TO DISTRIBUTE CDS OR CDS ANALOG)

(3) That defendant or a person with whom he/she conspired did an overt act in pursuance of the conspiracy.

If, after consideration of all the evidence you are convinced beyond a reasonable doubt that the State has proven all of these elements, then you must find the defendant guilty of the crime of conspiracy. On the other hand, if you find that the State has failed to prove to your satisfaction beyond a reasonable doubt any one or more of these elements, then you must find the defendant not guilty of the crime of conspiracy.

[CHARGE THE FOLLOWING PARAGRAPH WHEN APPROPRIATE]

Each offense and each defendant in this indictment should be considered by you separately. The fact that you may find a particular defendant guilty or not guilty of a particular crime should not control your verdict as to any other offense charged against that defendant, and it should not control your verdict as to the charges against any other defendant.

1 See State v. Carbone, 10 N.J. 329 (1952).

2 Under 2C:2-1(b) an omission may under certain circumstances constitute an act.

3 See footnote 2.

4 Where appropriate charge Conspiracy-Renunciation (N.J.S.A. 2C:5-2e) - See Model Charge.

Drug Distribution Trafficking 2C:35-5 Manufacturing, Distributing, Dispensing CDS

a. Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it shall be unlawful for any person knowingly or purposely:

(1) To manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog; or

(2) To create, distribute, or possess or have under his control with intent to distribute, a counterfeit controlled dangerous substance.

b.Any person who violates subsection a. with respect to:

(1) Heroin, or its analog, or coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, or analogs, except that the substances shall not include decocainized coca leaves or extractions which do not contain cocaine or ecogine, or or 3,4-methylenedioxymethamphetamine or 3,4-methylenedioxyamphetamine, in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree. The defendant shall, except as provided in N.J.S.2C:35-12, be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;

(2) A substance referred to in paragraph (1) of this subsection, in a quantity of one-half ounce or more but less than five ounces, including any adulterants or dilutants is guilty of a crime of the second degree;

(3) A substance referred to paragraph (1) of this subsection in a quantity less than one-half ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

(4) A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of one ounce or more including any adulterants or dilutants is guilty of a crime of the second degree;

(5) A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of less than one ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

(6) Lysergic acid diethylamide, or its analog, in a quantity of 100 milligrams or more including any adulterants or dilutants, or phencyclidine, or its analog, in a quantity of 10 grams or more including any adulterants or dilutants, is guilty of a crime of the first degree. Except as provided in N.J.S.2C:35-12, the court shall impose a term of imprisonment which shall include the imposition of a minimum term, fixed at, or between, one-third and one-half of the sentence imposed by the court, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;

(7) Lysergic acid diethylamide, or its analog, in a quantity of less than 100 milligrams including any adulterants or dilutants, or where the amount is undetermined, or phencyclidine, or its analog, in a quantity of less than 10 grams including any adulterants or dilutants, or where the amount is undetermined, is guilty of a crime of the second degree;

(8) Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;

(9) (a) Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of one-half ounce or more but less than five ounces including any adulterants or dilutants is guilty of a crime of the second degree;

(b) Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of less than one-half ounce including any adulterants or dilutants is guilty of a crime of the third degree except that notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

(10) (a) Marijuana in a quantity of 25 pounds or more including any adulterants or dilutants, or 50 or more marijuana plants, regardless of weight, or hashish in a quantity of five pounds or more including any adulterants or dilutants, is guilty of a crime of the first degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;

(b) Marijuana in a quantity of five pounds or more but less than 25 pounds including any adulterants or dilutants, or 10 or more but fewer than 50 marijuana plants, regardless of weight, or hashish in a quantity of one pound or more but less than five pounds, including any adulterants and dilutants, is guilty of a crime of the second degree;

(11) Marijuana in a quantity of one ounce or more but less than five pounds including any adulterants or dilutants, or hashish in a quantity of five grams or more but less than one pound including any adulterants or dilutants, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed;

(12) Marijuana in a quantity of less than one ounce including any adulterants or dilutants, or hashish in a quantity of less than five grams including any adulterants or dilutants, is guilty of a crime of the fourth degree;

(13) Any other controlled dangerous substance classified in Schedule I, II, III or IV, or its analog, is guilty of a crime of the third degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or

(14) Any Schedule V substance, or its analog, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed.

c.Where the degree of the offense for violation of this section depends on the quantity of the substance, the quantity involved shall be determined by the trier of fact. Where the indictment or accusation so provides, the quantity involved in individual acts of manufacturing, distribution, dispensing or possessing with intent to distribute may be aggregated in determining the grade of the offense, whether distribution or dispensing is to the same person or several persons, provided that each individual act of manufacturing, distribution, dispensing or possession with intent to distribute was committed within the applicable statute of limitations.

Constructive Possession of Drugs in a Criminal Case

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

CONSTRUCTIVE POSSESSION OF DRUGS IN A CRIMINAL CASE

"For this offense the state must prove three material elements. First, it must be proved that the item is a controlled dangerous substance. Second, it must be proved that defendant either obtained or possessed the substance. Third it must be proved that defendant acted knowingly or intentionally." 33 N.J. Practice Â§521 p.475.

The state must prove that the defendant acted knowingly or intentionally. The state must prove that defendant knew the nature and character of the item, and it must prove that Jamess purpose in possessing the substance was to distribute it. 33 N.J. Practice Â§520 p.471 (1982).

Possession is the intentional control of an item accompanied by an awareness of its character. Constructive possession is when the defendant is aware of the substance and has an intention to exercise control over the substance. State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).

Joint possession is when people knowingly share control over the article. State v. Rajnai, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).

It is an offense to knowingly or intentionally obtain or possess a controlled dangerous substance. N.J.S.A. 24:21-20a. "The state must prove knowledge or intent on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Intent means it was the defendants purpose to obtain or possess the item while being aware of its character. State v. McMenamin, 133 N.J. Super. 521, 524, 337 A. 2d 630, 631 (App. Div. 1975); State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).

Mere presence in a premises with other persons where controlled dangerous substances are found is not sufficient to justify an inference that a particular defendant was in sole or joint possession of the substance. State v. Sapp, 71 N.J. 476, 477, 366 A. 2d 334, 335 (1976), overruled on other grounds by State v. Brown, 80 N.J. 587, 404 A. 2d 1111 (1979).

The state must prove that the defendant was aware of the character of the substance to prove that the defendant acted with knowledge. State v. Reed, 34 N.J. 554, 557, 170 A. 2d 419, 421 (1961); State v. Rajnai, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your drivers license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

15. You lose the presumption against incarceration in future cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;

If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500

Violation of Probation

Kenneth Vercammen's Law office represents individuals charged with criminal offenses. Kenneth Vercammen has handled probation revocation hearings in both Superior Court and Municipal Court. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted, you can face jail, fines, Probation and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal offenses in juvenile matters, and other offenses. Our website kennethvercammen.com provides information on criminal offenses we can be retained to represent people.

The following are the major Court Rules and statutes dealing with Probation and Suspended Sentences in Superior Court matters

Rule 3:21-7 states: After conviction, unless otherwise provided by law, the court may suspend the imposition of a sentence or the defendant may be placed on probation. (a) Conditions. The order shall require the defendant to comply with standard conditions adopted by the court and filed by counsel with the criminal division manager as designee of the deputy clerk of the Superior Court (except as otherwise ordered), as well as such special conditions, including a term of imprisonment pursuant to N.J.S.A. 2C:45-1c, as the court imposes. As a condition of probation the court may impose a term of community-related service to be performed by the defendant under such terms and conditions as the court may determine. A copy of the order, together with the standard and special conditions, shall be furnished to the defendant, and read and explained to the defendant by the probation officer, whereupon the defendant and the probation officer shall sign a joint statement, to be filed with the criminal division manager as designee of the deputy clerk of the Superior Court, as to the officer's compliance with such reading and explanation requirement. If the defendant refuses to sign such statement, the defendant shall be resentenced. (b) Detention. The court may, pursuant to N.J.S.A. 2C:45-3a(3), upon a showing of probable cause that the defendant has committed another offense, detain without bail pending determination of the charge, a defendant who was sentenced to probation or whose sentence was suspended. (c) Revocation. At any time before termination of the period of suspension or probation, the court may revoke a suspension or probation pursuant to N.J.S.A. 2C:45-3.

NJSA 2C:45-1. sets forth the Conditions of Suspension or Probation.

a. When the court suspends the imposition of sentence on a person who has been convicted of an offense or sentences him to be placed on probation, it shall attach such reasonable conditions, authorized by this section, as it deems necessary to insure that he will lead a law-abiding life or is likely to assist him to do so. These conditions may be set forth in a set of standardized conditions promulgated by the county probation department and approved by the court.

b. The court, as a condition of its order, may require the defendant:

(1) To support his dependents and meet his family responsibilities;

(2) To find and continue in gainful employment;

(3) To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose;

(4) To pursue a prescribed secular course of study or vocational training;

(5) To attend or reside in a facility established for the instruction, recreation or residence of persons on probation;

(6) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;

(7) Not to have in his possession any firearm or other dangerous weapon unless granted written permission;

(8) (Deleted by amendment, P.L. 1991, c.329);

(9) To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his address or his employment;

(10) To report as directed to the court or the probation officer, to permit the officer to visit his home, and to answer all reasonable inquiries by the probation officer;

(11) To pay a fine;

(12) To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience;

(13) To require the performance of community-related service.

c. The court, as a condition of its order, shall require the defendant to pay any assessments required by section 2 of P.L. 1979, c.396 (C. 2C:43-3.1) and shall, consistent with the applicable provisions of N.J.S. 2C:43-3, N.J.S. 2C:43-4 and N.J.S. 2C:44-2 or section 1 of P.L. 1983, c.411 (C. 2C:43-2.1) require the defendant to make restitution.

more info at http://www.kennethvercammen.com/violation_of_probation.html

Burglary NJSA 2C:18-2a

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

If someone is Indicted for Burglary, the Judge will read portions of the following to the Jury. They are called Request to Charge.

BURGLARY IN THE THIRD DEGREE (N.J.S.A. 2C:18-2a)

The indictment charges the defendant with committing the crime of burglary. The indictment reads as follows:

(Read Indictment)

N.J.S.A. 2C:18-2a insofar as it is applicable to this case reads as follows:

A person is guilty of burglary if, with purpose to commit an offense therein the person:

(1) Enters a (research facility) (structure), or a separately secured or occupied portion thereof, unless the (research facility) (structure) was at the time open to the public or the person is licensed or privileged to enter; or

(2) Surreptitiously remains in a (research facility) (structure) or a separately secured or occupied portion thereof knowing that (he/she) is not licensed or privileged to do so.

Specifically, the defendant in this case is charged with entering with the purpose to commit an offense. I must therefore explain to you, first, what constitutes burglary under the law and second, what constitutes an offense. In order for you to find the defendant guilty of burglary, the State must prove beyond a reasonable doubt the following elements:

1. that the defendant entered1 the (research facility) (structure) known as without permission. 2. that the defendant did so with the purpose to commit an offense therein.

(WHERE APPLICABLE CHARGE PERTINENT PART OF N.J.S.A. 2C:1-14p):

Research facility means any building, laboratory, institution, organization, or school engaged in research, testing, educational or experimental activities, or any commercial or academic enterprise that uses warm-blooded or cold-blooded animals for food or fiber production, agriculture, research, testing, experimentation, or education. A research facility includes, but is not limited to, any enclosure, separately secured yard, pad, pond, vehicle, building structure or premises or separately secured portion thereof.

Structure includes any building [OR room, ship, vessel, car, vehicle, or airplane, and also means any place adapted for overnight accommodation of persons or for carrying on business therein] whether or not a person is actually present.2 "Purpose to commit an offense" means that the defendant intended to commit an unlawful act3 inside the (structure) (research facility). [WHERE APPLICABLE CHARGE: The unlawful act(s) allegedly intended are set forth in count(s) of this indictment.]4

A person acts purposely with respect to the nature of his conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. Purpose, with purpose, and similar words have the same meaning.5 In other words, in order for you to find that the defendant acted purposely, the State must prove beyond a reasonable doubt that it was the defendant's conscious object at the time (he/she) unlawfully entered [OR surreptitiously remained in] the premises to commit an unlawful act.6

Purpose is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the jury, that witnesses be produced to testify that an accused said (he/she) acted purposely when (he/she) engaged in a particular act. (His/her) state of mind may be gathered from (his/her) acts and (his/her) conduct, and from all (he/she) said and did at the particular time and place, and from all of the surrounding circumstances.7 If you find that the State has proved the crime charged and each of its elements beyond a reasonable doubt, then you must find the defendant guilty. If you find that the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant not guilty.

1 If "surreptitiously remaining" is in your case, charge as follows: that the defendant surreptitiously remained for some duration in the (research facility) (structure), or a separately secured or occupied portion thereof knowing that (he/she) was not licensed or privileged to do so. [See N.J.S.A. 2C:18-2a(2) and Cannel, Criminal Code Annotated, Comment 4, N.J.S.A. 2C:18-2 (requirement that this offense "requires a stay of some duration")]. "Surreptitiously" means secretly, stealthily, or fraudulently. [Black's Law Dictionary at p. 1445 (6th ed. 1990)

more info at http://www.kennethvercammen.com/burglary.html

Forfeiture. 2C:64-1 Property subject to forfeiture.

Forfeiture. 2C:64-1 Property subject to forfeiture.

a.Any interest in the following shall be subject to forfeiture and no property right shall exist in them:

(1)Controlled dangerous substances, firearms which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices, untaxed cigarettes, untaxed special fuel, unlawful sound recordings and audiovisual works and items bearing a counterfeit mark. These shall be designated prima facie contraband.

(2)All property which has been, or is intended to be, utilized in furtherance of an unlawful activity, including, but not limited to, conveyances intended to facilitate the perpetration of illegal acts, or buildings or premises maintained for the purpose of committing offenses against the State.

(3)Property which has become or is intended to become an integral part of illegal activity, including, but not limited to, money which is earmarked for use as financing for an illegal gambling enterprise.

(4)Proceeds of illegal activities, including, but not limited to, property or money obtained as a result of the sale of prima facie contraband as defined by subsection a. (1), proceeds of illegal gambling, prostitution, bribery and extortion.

b.Any article subject to forfeiture under this chapter may be seized by the State or any law enforcement officer as evidence pending a criminal prosecution pursuant to section 2C:64-4 or, when no criminal proceeding is instituted, upon process issued by any court of competent jurisdiction over the property, except that seizure without such process may be made when not inconsistent with the Constitution of this State or the United States, and when

(1)The article is prima facie contraband; or

(2)The property subject to seizure poses an immediate threat to the public health, safety or welfare.

c.For the purposes of this section:

"Items bearing a counterfeit mark" means items bearing a counterfeit mark as defined in N.J.S.2C:21-32.

"Unlawful sound recordings and audiovisual works" means sound recordings and audiovisual works as those terms are defined in N.J.S.2C:21-21 which were produced in violation of N.J.S.2C:21-21.

"Untaxed special fuel" means diesel fuel, No. 2 fuel oil and kerosene on which the motor fuel tax imposed pursuant to R.S.54:39-1 et seq. is not paid that is delivered, possessed, sold or transferred in this State in a manner not authorized pursuant to R.S.54:39-1 et seq. or P.L.1938, c.163 (C.56:6-1 et seq.).

L.1978, c.95; amended 1979, c.344, s.1; 1981, c.290, s.46; 1992, c.23, s.70; 2004, c.150, s.3.

2C:64-2. Forfeiture procedures; prima facie contraband

Forfeiture Procedures; Prima Facie Contraband.

Except as provided in N.J.S. 2C:35-21, prima facie contraband shall be retained by the State until entry of judgment or dismissal of the criminal proceeding, if any, arising out of the seizure. Thereafter, prima facie contraband shall be forfeited to the entity funding the prosecuting agency involved, subject to the rights of owners and others holding interests pursuant to section 2C:64-5.

L.1978, c.95; amended by L. 1979, c. 344, s. 2; 1981, c. 290, s. 47; 1987, c. 106, s. 17.

2C:64-3. Forfeiture procedures

2C:64-3. Forfeiture procedures. a. Whenever any property other than prima facie contraband is subject to forfeiture under this chapter, such forfeiture may be enforced by a civil action, instituted within 90 days of the seizure and commenced by the State and against the property sought to be forfeited.

b. The complaint shall be verified on oath or affirmation. It shall describe with reasonable particularity the property that is the subject matter of the action and shall contain allegations setting forth the reason or reasons the article sought to be or which has been seized is contraband.

c. Notice of the action shall be given to any person known to have a property interest in the article. In addition, the notice requirements of the Rules of Court for an in rem action shall be followed.

d. The claimant of the property that is the subject of an action under this chapter shall file and serve his claim in the form of an answer in accordance with the Rules of Court. The answer shall be verified on oath or affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. If the claim is made in behalf of the person entitled to possession by an agent, bailee or attorney, it shall state that he is duly authorized to make the claim.

e. If no answer is filed and served within the applicable time, the property seized shall be disposed of pursuant to N.J.S.2C:64-6.

f. If an answer is filed, the Superior or county district court shall set the matter down for a summary hearing as soon as practicable. Upon application of the State or claimant, if he be a defendant in a criminal proceeding arising out of the seizure, the Superior or county district court may stay proceedings in the forfeiture action until the criminal proceedings have been concluded by an entry of final judgment.

g. Any person with a property interest in the seized property, other than a defendant who is being prosecuted in connection with the seizure of property may secure its release pending the forfeiture action unless the article is dangerous to the public health, safety and welfare or the State can demonstrate that the property will probably be lost or destroyed if released or employed in subsequent criminal activity. Any person with such a property interest other than a defendant who is being prosecuted, prior to the release of said property shall post a bond with the court in the amount of the market value of the seized item.

h. The prosecuting agency with approval of the entity funding such agency, or any other entity, with the approval of the prosecuting agency, where the other entity's law enforcement agency participated in the surveillance, investigation or arrest which is the subject of the forfeiture action, may apply to the Superior Court for an order permitting use of seized property, pending the disposition of the forfeiture action provided, however, that such property shall be used solely for law enforcement purposes. Approval shall be liberally granted but shall be conditioned upon the filing of a bond in an amount equal to the market value of the item seized or a written guarantee of payment for property which may be subject to return, replacement or compensation as to reasonable value in the event that the forfeiture is refused or only partial extinguishment of property rights is ordered by the court.

i. If the property is of such nature that substantial difficulty may result in preserving its value during the pendency of the forfeiture action, the Superior or county district court may appoint a trustee to protect the interests of all parties involved in the action.

j. Evidence of a conviction of a criminal offense in which seized property was either used or provided an integral part of the State's proofs in the prosecution shall be considered in the forfeiture proceeding as creating a rebuttable presumption that the property was utilized in furtherance of an unlawful activity.