| Kenneth Vercammen's Law office represents individuals charged with criminal
and serious traffic violations throughout New Jersey.
As set forth in NJ Practice, Vol. 31, Criminal Practice and Procedure,
(1997), Sec 292, the defendant has a right to bail before conviction except
if he/she is charged with a crime punishable by death and the prosecutor
presents proof that there is a likelihood of conviction and reasonable
grounds to believe that the death penalty may be imposed. 3 This means
that absent exceptional circumstances the defendant has a right to pretrial
liberty if the defendant provides surety in such amount as in the judgment
of the court will insure the defendant's appearance at trial. 4 Stated
in other terms, the right to bail means that in the absence of exceptional
circumstances the defendant has the right to have the court set bail in
an amount which does not exceed that which will insure defendant's appearance
at trial, and if the defendant can "come up" with cash in that
amount, or 10 percent of that amount if the defendant is eligible to be
released on 10 percent cash bail,5 or a bond or other surety, then the
defendant must be released. Immediately retain a local criminal attorney.
Don't wait for a Public Defender to look at your case down the road while
you sit in jail.
BAIL PROCEDURES
Any person unable to post bail shall have his or her bail reviewed by
a Superior Court judge not later than the next day which is neither a
Saturday, Sunday or legal holiday. 7 A first motion for a reduction of
bail shall be held by the Court no later than 7 days after it is filed.8
AMOUNT OF BAIL
R. 3:26-1(a) provides in relevant part that "{a}ll persons, shall
be bailable before conviction on such terms as, in the judgment of the
court, will insure their presence in court when required having regard
for their background, residence, employment and family status and, particularly,
the general policy against unnecessary sureties and detention." These
factors are specified in more detail in State v. Johnson 10 as follows:
seriousness of the charge; the likelihood of conviction and the extent
of punishment; defendant's criminal record, if any, and previous record
on bail, if any; defendant's reputation and mental condition; the length
of his/her residence in the community; defendant's family ties and relationships;
defendant's employment status, record of employment and financial condition;
the identity of responsible members of the community vouching for his/her
reliability; and any other factors indicating defendant's mode of life,
or ties to the community. The likelihood of flight must be considered
in light of these factors and bail set accordingly. R. 3:26-2[c]. R. 3:26-2[d].
61 N.J. 351, 294 A.2d 245 [1972].
The Courts often examine some of the following criteria: RESIDENCE -
Lived at present residence one year or more. PRIOR RECORD No convictions.
FAMILY TIES - Lives with family and has frequent contact with other relatives.
EMPLOYMENT - Has regular job less than four months, or receiving Unemployment
Compensation, or welfare aid, or supported by family or savings. TOTAL
TIME IN NEW JERSEY - Ten years or more residence or business in New Jersey.
MISCELLANEOUS FACTORS MAKING FLIGHT UNLIKELY - Good Health
CONCLUSION If facing a criminal offense, retain an attorney to represent
you immediately.
A criminal attorney can make a motion to reduce bail
RULE 3:26. BAIL
3:26-1. Right to Bail Before Conviction
(a) Persons Entitled; Standards for Fixing. All persons, except those
charged with crimes punishable by death when the prosecutor presents proof
that there is a likelihood of conviction and reasonable grounds to believe
that the death penalty may be imposed, shall be bailable before conviction
on such terms as, in the judgment of the court, will ensure their presence
in court when required. The factors to be considered in setting bail are:
(1) the seriousness of the crime charged against defendant, the apparent
likelihood of conviction, and the extent of the punishment prescribed
by the Legislature; (2) defendant's criminal record, if any, and previous
record on bail, if any; (3) defendant's reputation, and mental condition;
(4) the length of defendant's residence in the community; (5) defendant's
family ties and relationships; (6) defendant's employment status, record
of employment, and financial condition; (7) the identity of responsible
members of the community who would vouch for defendant's reliability;
(8) any other factors indicating defendant's mode of life, or ties to
the community or bearing on the risk of failure to appear, and, particularly,
the general policy against unnecessary sureties and detention. In its
discretion the court may order the release of a person on that person's
own recognizance. The court may also impose terms or conditions appropriate
to the defendant's release including conditions necessary to protect persons
in the community. (b) On Failure to Indict. If a person committed for
a crime punishable by death is not indicted within 3 months after commitment,
a judge of the Superior Court, for good cause shown, may admit the person
to bail. (c) On Failure to Move Indictment. If an indictment or accusation
is not moved for trial within 6 months after arraignment, a judge of the
Superior Court, for cause shown, may discharge the defendant upon the
defendant's own recognizance. (d) Extradition Proceedings. Where a person
has been arrested in any extradition proceeding, that person may be admitted
to bail except where that person is charged with a crime punishable by
death.
Note: Source-R.R. 3:9-1(a)(b)(c)(d); paragraph (a) amended September
28, 1982 to be effective immediately; paragraphs (a), (b), (c) and (d)
amended July 13, 1994 to be effective January 1, 1995; paragraph (a) amended
July 10, 1998 to be effective September 1, 1998.
3:26-2. Authority to Set Bail
(a) Authority to Set Initial Bail. A Superior Court judge may set bail
for a person charged with any offense. Bail for any offense except murder,
kidnapping, manslaughter, aggravated manslaughter, aggravated sexual assault,
sexual assault, aggravated criminal sexual contact, a person arrested
in any extradition proceeding or a person arrested under N.J.S.A. 2C:29-9b
for violating a restraining order may be set by any other judge, or in
the absence of a judge, by a municipal court administrator or deputy court
administrator. (b) Initial Bail Set. Initial bail shall be set pursuant
to R. 3:4-1(a) or (b) on indictable or non-indictable offenses. (c) Review
of Initial Set. Any person unable to post bail shall have his or her bail
reviewed by a Superior Court judge no later than the next day which is
neither a Saturday, Sunday nor a legal holiday. Except in those indictable
cases in which a Superior Court judge has set bail, a municipalcourt judge
has the authority to make bail revisions up to and including the time
of the defendant's first appearance before the court. A municipal court
judge has the authority to make bail revisions on any non-indictable offense
at any time during the course of the proceedings. (d) Bail Reductions.
A first motion for bail reduction shall be heard by the court no later
than seven days after it is filed.
Note: Source-R.R. 3:9-3(a)(b)(c); amended July 24, 1978 to be effective
September 11, 1978; amended May 21, 1979 to be effective June 1, 1979;
amended August 28, 1979 to be effective September 1, 1979; amended July
26, 1984 to be effective September 10, 1984; caption amended, former text
amended and redesignated paragraph (a) and new paragraphs (b), (c) and
(d) adopted July 13, 1994 to be effective January 1, 1995; paragraph (b)
amended January 5, 1998 to be effective February 1, 1998.
3:26-3. Bail for Witness
(a) Authority to Issue. A Superior Court judge may, on application, conduct
proceedings under N.J.S.A. 2C:104-1 et seq. as to any person who can give
testimony relevant to the prosecution or defense of a pending indictment,
accusation, or complaint for a crime or a criminal investigation before
a grand jury. (b) Application. The application shall be captioned in Superior
Court and entitled "In the Matter of (name of person alleged to be
a material witness)". The application shall include a copy of the
pending indictment, complaint, or accusation and an affidavit containing:
(1) the name and address of the person alleged to be a material witness,
(2) a summary of the facts believed to be known by the alleged material
witness and the relevance to the criminal action or investigation, (3)
the grounds for belief that the person has material and necessary information
concerning the pending criminal action or investigation, and (4) the reasons
why the alleged material witness is unlikely to respond to a subpoena.
If the application requests an arrest warrant, the affidavit shall set
forth why immediate arrest is necessary. (c) Order to Appear. If there
is probable cause to support issuance of a material-witness order against
the person named in the application, the court may order the person to
appear at a hearing to determine whether the person should be adjudged
a material witness. The order and a copy of the application shall be served
personally on the alleged material witness at least 48 hours before the
hearing, unless the judge adjusts the time period for good cause, and
shall advise the person of: (1) the time and place of the hearing, and
(2) the right to be represented by an attorney and to have an attorney
appointed if the person cannot afford one. (d) Warrant for Immediate Detention.
If there is clear and convincing evidence that the person will not be
available as a witness unless immediately detained, the court may issue
an order requiring that the person be brought before the court immediately.
If the detention does not take place during regular court hours, the person
shall be brought to the emergency-duty Superior Court judge. The judge
shall inform the person: (1) the reason for detention, (2) the time and
place of the hearing to determine whether the person is a material witness,
and (3) that the person has a right to an attorney and to have an attorney
appointed if the person cannot afford one. The judge shall set conditions
for release, or, if there is clear and convincing evidence that the person
will not be available as a witness unless detention is continued, the
judge may order the person held until the material-witness hearing, which
shall take place as soon as practicable but no later than 48 hours after
detention. (e) Detention Without Prior Court Authorization. Where a law
enforcement officer hasdetained an alleged material witness without prior
court authorization, the law enforcement officer shall immediately bring
the person before a Superior Court judge. If the detention does not take
place during regular court hours, the person shall be brought to the emergent
duty Superior Court judge. The judge shall determine whether there is
probable cause to believe that the person is a material witness of a crime
and, if an indictment, accusation, or complaint for that crime has not
issued or if a grand jury has not commenced a criminal investigation of
that crime, the judge shall determine whether there is probable cause
to believe that, within 48 hours of the detention, an indictment, accusation,
or complaint will issue or a grand jury investigation will commence. The
judge will then proceed as if an application for an order had been made
under paragraph (b). (f) Material Witness Hearing. At the material-witness
hearing, the person shall have the rights: (1) to be represented by an
attorney and to have an attorney appointed if the person cannot afford
one, (2) to be heard and to present witnesses and evidence, and (3) unless
otherwise sealed by the court for exceptional circumstances, to have all
of the evidence in support of the application, and (4) to confront and
cross-examine witnesses. If there is probable cause to believe that the
person possesses information material to the prosecution of a defense
of a pending indictment, accusation or complaint for a crime, or a criminal
investigation before a grand jury and is unlikely to respond to subpoena,
the judge shall: (1) set forth findings of facts on the record, and (2)
set the conditions of release of the material witness. (g) Conditions
of Release or Detention. Conditions of release for a material-witness
or for a person held on an application for a material-witness order shall
be the least restrictive to effect the order of the court including but
not limited to: (1) placing the witness in the custody of a designated
person or organization agreeing to supervise the person; (2) restricting
the travel, association, or place of abode of the person during the period
of detention; (3) requiring the person to report; (4) setting bail, or
(5) imposing other reasonable restrictions on the material witness. No
person may be detained unless the judge finds, by clear and convincing
evidence, that detention is the only method that will secure the appearance
of the material witness. A person detained as a material witness or pending
a material-witness hearing shall be lodged in appropriate quarters and
shall not be held in a jail or prison. (h) Deposition. The prosecutor,
defendant, or material witness may apply to the Superior Court for an
order directing that a deposition be taken to preserve the witness's testimony,
for use at trial if the witness becomes unavailable, as provided by R.
3:13-2. After a deposition has been taken, the judge shall vacate the
material-witness order and impose the least restrictive conditions to
secure the appearance of the material witness. (i) Reconsideration of
Material Witness Order. On motion of the material witness, prosecutor,
or defendant, a material witness order may be reconsidered at any time
by the court that entered the order.
Note: Source-R.R. 3:9-4; first paragraph re-designated paragraph (a)
and paragraphs (b), (c) (d), (e), (f) and (g) added July 14, 1992 to be
effective September 1, 1992; paragraph (g) amended July 13, 1994 and December
9, 1994, to be effective January 1, 1995; paragraphs (a), (b), (c) and
(d) amended, former paragraphs (e), (f), and (g) amended and redesignated
as paragraphs (f), (g), and (h), and new paragraphs (e) and (i) adopted
July 10, 1998 to be effective September 1, 1998.
3:26-4. Form and Place of Deposit; Location of Real Estate; Record of
Recognizances,Discharge and Forfeiture Thereof
(a) Deposit of Bail. A person admitted to bail shall, together with that
person's sureties, sign and execute a recognizance before the person authorized
to take bail or, if the defendant is in custody, the person in charge
of the place of confinement. The recognizance shall contain the terms
set forth in R. 1:13-3(b) and shall be conditioned upon the defendant's
appearance at all stages of the proceedings until final determination
of the matter, unless otherwise ordered by the court. One or more sureties
may be required. Cash may be accepted, and in proper cases no security
need be required. A corporate surety shall be one approved by the Commissioner
of Insurance and shall execute the recognizance under its corporate seal,
cause the same to be duly acknowledged and shall annex thereto proof of
authority of the officers or agents executing the same and of corporate
authority and qualification. Bail given in the Superior Court shall be
deposited with the clerk of the county in which the offense was committed,
provided that upon order of the court bail shall be transferred from the
county of deposit to the county in which defendant is to be tried. Real
estate offered as bail for indictable and non-indictable offenses shall
be approved by and deposited with the clerk of the county in which the
offense occurred and not with the Municipal Court clerk. In any county,
with the approval of the Assignment Judge, a program may be instituted
for the deposit in court of cash in the amount of 10 percent of the amount
of bail fixed. (b) Limitation on Individual Surety. Unless the court for
good cause otherwise permits, no surety, other than an approved corporate
surety, shall enter into a recognizance or undertaking for bail if there
remains undischarged any previous recognizance or bail undertaken by that
surety. (c) Real Estate in Other Counties. Real estate owned by a surety
located in a county other than the one in which the bail is taken may
be accepted, in which case the clerk of the court in which the bail is
taken shall forthwith transmit a copy of the recognizance certified by
that clerk to the clerk of the county in which the real estate is situated,
who shall record it in the same manner as if the recognizance had been
taken in that clerk's county. (d) Record of Recognizance. The clerk of
every court, except the municipal court, before which any recognizance
shall be entered into shall record immediately, in alphabetical order
in a book kept for that purpose, the names of the persons entering into
the recognizance, the amount thereof and the date of its acknowledgment.
Such book shall be kept in the clerk's office of the county of which such
court shall be held, and be open for public inspection. In municipal court
proceedings the record of the recognizance shall be entered in the docket
book maintained by the clerk. (e) Record of Discharge; Forfeiture. When
any recognizance shall be discharged by court order upon proof of compliance
with the conditions thereof or by reason of the judgment in any matter,
the clerk of the court shall enter the word "discharged" and
the date of discharge at the end of the record of such recognizance. When
any recognizance is forfeited, the clerk of the court shall enter the
word "forfeited", and the date of forfeiture at the end of the
record of such recognizance, and shall give notice of such forfeiture
to the county counsel. When real estate of the surety located in a county
other than the one in which the bail was taken is affected, the clerk
of the court in which such recognizance is given shall forthwith send
notice of the discharge or forfeiture and the date thereof to the clerk
of the county where such real estate is situated, who shall make the appropriate
entry at the end of the record of such recognizance. (f) Cash Deposit.
When a person other than the defendant deposits cash in lieu of bond,the
person making the deposit shall file an affidavit concerning the lawful
ownership thereof, and on discharge such cash may be returned to the owner
named in the affidavit. (g) Ten Percent Cash Bail. Except in first or
second degree cases as set forth in N.J.S.A. 2A:162-12 and unless the
order setting bail specifies to the contrary, whenever bail is set pursuant
to Rule 3:26-1, bail may be satisfied by the deposit in court of cash
in the amount of ten-percent of the amount of bail fixed and defendant's
execution of a recognizance for the remaining ninety percent. No surety
shall be required unless the court fixing bail specifically so orders.
When cash equal to ten-percent of the bail fixed is deposited pursuant
to this Rule, if the cash is owned by someone other than the defendant,
the owner shall charge no fee for the deposit other than lawful interest
and shall submit an affidavit with the deposit so stating and also listing
the names of any other persons for whom the owner has deposited bail.
The person making the deposit authorized by this subsection shall file
an affidavit concerning the lawful ownership thereof, and on discharge
such cash may be returned to the owner named in the affidavit.
Note: Source-R.R. 3:9-5(a)(b)(c)(d)(e)(f)(g). Paragraph (a) amended June
29, 1973 to be effective September 10, 1973; paragraph (a) amended July
16, 1979 to be effective September 10, 1979; paragraph (g) adopted November
5, 1986 to be effective January 1, 1987; paragraph (a) amended November
7, 1988 to be effective January 2, 1989; paragraphs (f) and (g) amended
July 14, 1992 to be effective September 1, 1992; paragraphs (a), (b) and
(c) amended July 13, 1994 to be effective September 1, 1994; paragraph
(a) amended February 27, 1995 to be effective immediately.
3:26-5. Justification of Sureties
Every surety, except an approved corporate surety, shall justify by affidavit
and be required to describe therein the property by which the surety proposes
to justify and the encumbrances thereon, the number and amount of other
recognizances and undertakings for bail entered into by the surety and
remaining undischarged, if any, and all the surety's other liabilities.
No recognizance shall be approved unless the surety thereon shall be qualified.
Note: Source-R.R. 3:9-6; amended July 13, 1994 to be effective September
1, 1994.
3:26-6. Forfeiture
(a) Declaration; Notice. Upon breach of a condition of a recognizance,
the court on its own motion shall order forfeiture of the bail, and the
criminal division manager shall forthwith send notice of the forfeiture
to county counsel, the defendant, and the surety. The notice shall direct
that judgment will be entered as to any outstanding bail absent a written
objection seeking to set aside the forfeiture, which must be filed within
45 days of the date of the notice. (b) Setting Aside. The court may direct
that a forfeiture be set aside if its enforcement is not required in the
interest of justice upon such conditions as it imposes. (c) Enforcement;
Remission. When a forfeiture is not set aside or satisfied, the court
shall, upon expiration of the 45 days provided for in paragraph (a), summarily
enter a judgment of default for any outstanding bail and execution may
issue thereon. After entry of such judgment, the court may remit it in
whole or in part in the interest of justice. In any contested proceeding,
county counsel shall appear on behalf of the government. County counsel
shall be responsible for collection of forfeited amounts.
Note: Source-R.R. 3:9-7 (a)(b)(c) (first sentence) (d); paragraphs (a)
and (c) amended July 10, 1998 to be effective September 1, 1998.
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 driver's 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
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