Newark Criminal Defense Law Blog

The criminal defense of a violation, whether of probation, parole or ISP, starts with a simple question: What was it that you did not do that they wanted you to do. Each of these differs in regards to when and how you become eligible for them, but each also resembles the others in regards that there are conditions you must meet in order to stay in the particular program. Probation is an alternative sentence imposed by a Judge, instead of being locked up. Parole is a release from Prison with you being supervised by the Parole Board, while a portion of your sentence has not yet been served. Intensive Supervision is a judicially overseen program with you released and overseen by an ISP officer, with you released from prison after serving only a small portion of the actual prison term.

In other words, you are being watched in all of these programs, with a set of conditions that you must meet. It is when you fail to meet one or more of the conditions that you end up with a violation. When you do not perform the conditions, a violation is filed, and you have a hearing in front of a Judge (probation); a Parole Officer/ the Parole Board (Parole); or, the Resentencing Panel of Judges (ISP).

You will have the opportunity to fight the violation, but sometimes the better solution is to mitigate and hopefully avoid the consequence of being locked up again as a result of the violation. The first question asked above, said another way, are you guilty of not doing one or more of the conditions imposed on you to be in the program. The best criminal defense of a violation is to fix what is broken, what you have not done; and, to emphasize all the good points of what you accomplished while in the program. There are a number of considerations that factor into what to fight, and what to admit, depending on what outcome you want to achieve. If you are charged in Essex County NJ with a violation of probation, parole or ISP, consult immediately with an experienced Newark criminal defense lawyer to see what your best options are for fighting the violation.

The criminal defense of a client charged with drug crimes in New Jersey is sometimes a fairly straight-forward process, with an examination of the police reports and an interview of the witnesses by the criminal defense attorney leading to a conclusion of whether there are good legal grounds to challenge the State's case, or whether the client should consider entering a guilty plea.

Where the charges involve a months-long investigation, involve numerous police agencies, and result in the arrest of 25 people - an experienced criminal defense lawyer should immediately recognize a criminal case that is likely to be a wiretap investigation, and which will have significant legal issues even if it is not a wiretap. Whenever you have a long investigation, involving numerous police officers from different agencies, there are opportunities for something to be done improperly by the cops; or, for something not to be properly documented.

There is an old phrase...if it looks like a rose, has thorns like a rose, and smells like a rose...it's probably a rose. In a drug case announced today in NJ, the Ocean County Prosecutor announced the arrest of 25 persons, involving a months-long investigation, conducted by officers from numerous police agencies. Given all those factors and the fact that it was announced by the Ocean County Prosecutor, the odds are that this was a wiretap investigation, and not simply another 'drug-bust'. The criminal defense of this type of case, whether it is a wiretap or not, will require a much more intense examination of the legal issues to determine what the best defense is for each client. If you have been charged with a drug crime in NJ, contact us to discuss how our representation can benefit you.

The Intensive Supervision Program is not a one-size fits all placebo that you can use as a 'get-out-of-jail' alternative, without understanding what you are getting into. The name says it all: INTENSIVE SUPERVISION. That type of supervision is not the end of it however, as the conditions you agree to are going to be specific, and you will be held accountable to meet them. Do not think that you can renegotiate your way out of a violation of the program when you do not meet the conditions. They are part of the contract you enter into with the Resentencing Program. If for example, you and the Court were to agree on you being admitted, and the Judges required that you perform a specific number of Community Service hours within a certain time period, anything less than that is not going to be acceptable to the ISP officer, or to the Court.

Be careful what you ask for...'I want to get into ISP', is something I have heard from more than a few clients, who are usually so anxious to get out of custody that they would agree to any condition just to get released. After they are out, they realize that they do not, and sometimes cannot, perform the conditions they agreed to. When that failure to perform happens, the Resentencing Panel orders that a violation of the program be prepared, puts the client back into custody pending the hearing, and frequently orders that the client be returned to prison to finish serving their custodial sentence.

If you want to get into the Intensive Supervision Program, understand the conditions BEFORE you sign the agreement. Make absolutely certain you can meet the conditions BEFORE you sign the agreement. If you have any doubt as to whether you can meet the conditions, DO NOT SIGN the agreement, and discuss this issue with your lawyer. If you have questions about whether you should participate in ISP, discuss your case with our Newark, NJ criminal defense lawyers before signing the agreement.

Do you need an expungement? As a criminal defense lawyer in New Jersey, I am frequently asked the question, 'How can I have a record, I was never arrested and I was never convicted?' The answer is: You don't have to be 'Arrested' or 'Convicted' to have a record. The mere fact that you were 'Charged' and a complaint filed with the Court is what starts the criminal record process. Once the record is in the court computer system, or the law enforcement computer system, you have a record. Once you have the record, it spreads through all of the other linked computer systems.

'But that was years ago, and I was not Convicted...so how can I have a record?' is usually the next question, and the answer is: The record is created when you are charged, it does not require a conviction, and the record will stay until you actively do something to clear your record. The passage of time does NOTHING to clear your record. It just becomes an old record, something that will never go away on its own.

'But I wasn't even arrested! They just mailed me the complaint, and it was dismissed by the Judge!' The response is: The record is created when you were CHARGED. The record is not created just, or if, you are 'arrested'.

Unfortunately, too many people who were charged with a criminal offense think that the record will disappear on its own, if they were not arrested or if the charge is later dismissed. Frequently, these old records pop-up when an employer does a background check, and sadly, sometimes the criminal background results in the loss of the job. If you have ever been charged with a criminal offense of any type, do a background check to see what shows up. Then consult with an experienced criminal defense lawyer to see what needs to be done to get an expungement if a record does show up.

In Domestic Violence cases, there are typically two different types of cases that you and your lawyer need to be concerned with. The first is the issuance of a TRO (Temporary Restraining Order); and, the second is the filing of a criminal charge. Each of these types of proceedings can result in the Court imposing sanctions. Of these two, I consider the TRO to be the most dangerous to a client with sanctions and an impact that far exceeds those of the typical criminal charge.

In most Domestic Violence cases, the criminal complaint is for Simple Assault, graded as a Disorderly Persons offense. If you are convicted of this charge in NJ, you would face up to 6 months in jail (although it is unlikely that any jail time would be imposed by the Judge if this were a first offense). When you were able to meet the statutory requirements, you would be eligible to get the record of the criminal conviction expunged. It would be as if the conviction never occurred, and once the expungement order was issued by the Court, you would be able to answer the question on an employment application 'Have you ever been convicted...' with a NO.

In contrast, if a TRO were to be issued against you as an FRO (Final Restraining Order), it will result in you being placed in the Domestic Violence Registry, a permanent record. The FRO will remain in effect until the Court agrees to vacate it, which will typically not occur unless the complainant agrees to it being vacated. Even if the FRO were vacated, there are no options to get your name removed from the DV Registry. Like I said before, the record is permanent.

Our Newark, NJ law firm often represents clients in both types of proceedings, and as experienced criminal defense and family law attorneys we always recommend to a client that it is best to get the TRO withdrawn, rather than to argue before the Judge as to why it should not be issued in the first place. Whenever possible, you should seek to negotiate with the complainant to withdraw the TRO and not seek an FRO. Given the low evidentiary standards for a FRO to be issued, and the permanency of the record once it is issued, negotiating a withdrawal is always the best alternative for a client.

The criminal defense of a Robbery charge must take into consideration the severe sentencing consequences mandated by NERA (No Early Release Act). A Robbery is a Theft where the robber uses force or a weapon to commit the crime. While a Theft charge does not expose you to a NERA sentence, Robbery does. So what is the big deal about a NERA sentence you ask your attorney?

NERA requires that a defendant serve 85% of the custodial sentence imposed, before becoming eligible for parole. In comparison, a similar (in terms of the custodial sentence imposed) flat sentence would require a defendant to serve approximately 25% of the sentence before becoming eligible for parole. (NB: This flat term eligibility example is based upon the defendant having no prior convictions, and having earned all available credits to reduce the period of incarceration).

As a NERA example: A defendant is sentenced to the minimum term on a 1st degree Robbery under NERA, receiving 10 years in Prison. The defendant will have to serve 8.5 years in prison before being released on parole. There is no way to reduce the time the defendant will serve below the 8.5 years.

As a Flat-term example: A defendant is sentenced to the minimum term on a 1st degree charge that is not NERA, receiving 10 years in prison. The defendant will have to serve a term of between 1 year and 11 months; and, 2 years and 6 months, before being released on parole. The length of the time the defendant will spend in prison will vary based on the credits he receives, such as 'Commutation Credits' and 'Work Credits'.

Obviously, the criminal defense of a Robbery charge also involves a number of other factors, such the strength of the State case; eyewitness identification issues; and, various other legal challenges that may apply to the case. These other factors will be addressed in subsequent blog posts. If you are charged with Robbery, or you are facing NERA sentencing on any charge, consult immediately with an experienced New Jersey criminal defense lawyer BEFORE making any decisions on how to resolve your case.

Have we forgotten? Today is Medal of Honor Day, a date set aside to remember and honor the heroes who have been awarded out Nation's highest military honor. Did you remember that today was Medal of Honor Day? Did you even know there was such a day? If you did not remember, or if you never knew of this Day, consider this article a 'nudge' for you to think about, and thank God for those members of our armed forces who distinguished themselves through conspicuous gallantry and intrepidity at the risk of their life, above and beyond the call of duty.

You may never have the chance to meet a recipient of the MOH; many who have been awarded this medal were awarded it posthumously. That fact alone should underscore the degree of sacrifice that this award requires, especially for those who have never 'stood on the wall', placing themselves in harm's way as a soldier, marine, airman, or sailor. If you have not done so, you should take a few moments to read some of the Citations for Medal of Honor, which describe feats of courage, strength, resilience and perseverance in spite of wounds that would disable many people.

How many of the recipients are alive today? How many recipients have been women? These were truly exceptional members of our society, and I think you should know the answers to these questions. As a criminal defense lawyer in Newark, NJ, I often defend someone who has been less than exceptional in what they do for our country, and I can understand you not remembering them....but our MOH recipients deserve the time it takes for you to remember them.

Have we forgotten? I for one have not...hopefully you have not either.

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Post Conviction Relief is a means for a defendant to challenge the manner in which their trial attorney handled their representation. When the criminal charges cannot be resolved by a plea or other disposition, they are resolved by trial. As with all things in life, there are choices that the lawyer must make during the trial, sometimes on a moment's notice. Many of these choices are 'Trial Strategy' such as whether defense lawyer should ask a follow-up question of a witness; or, whether to pose an objection to something the prosecutor is doing. In many instances, the choice of trial strategy is best left to the experience and knowledge of the criminal trial attorney.

Where however, the issue is the lawyer's choice to forgo the use of a credible defense (such as deciding not to raise the defense of mis-identification); or, asserting a defense that needs a defense expert to explain (such as explaining how a person who has blacked-out would not know what they had done) and then not consulting with an expert or retaining one to testify at trial...the question that arises is whether those failures constitute 'trial strategy' or are indicative of 'ineffective assistance of counsel'.

It is easy to 'Monday Morning Quarterback' the decisions that a trial attorney has to make in the heat of a trial, and in many cases, when the full trial record is examined it is clear that the decisions of the trial attorney were at least arguably ''trial strategy' with some overall legal basis to support why the choices were made. The question is not whether I would have made the same decisions, it is whether the representation of the attorney fell below the reasonable objective standards of what an attorney should have done under those circumstances.

Where a Post Conviction Relief petition can establish that more than one or two instances of questionable decision making by the lawyer occurred during the trial, it becomes more likely that the conduct is not 'trial strategy'. If you believe that you have been provided 'Ineffective Assistance of Counsel', whether at trial or during the representation in general, consult with an experienced criminal defense lawyer to see whether you should file a petition for Post Conviction Relief.

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