Ask Marc

• What do the degrees of crime mean?
• What is an indictment?
• This is my first offense. Does that help?
• What is probation?
• What is Pre-Trial Intervention (PTI)?
• What is “conditional discharge”?
• I am a juvenile - what difference does that make?
• Bail and bail review motions what's the story?

What do the degrees of crime mean?

In New Jersey, criminal offenses are classified in terms of degree. First degree crimes are the most serious, and expose the defendant to a prison sentence of ten to twenty years if convicted. Second degree crimes carry prison terms of five to ten years. Third degree crimes can result in prison of eighteen months to five years, and fourth degree crimes up to eighteen months. These are considered the “indictable offenses,” requiring a grand jury finding of probable cause in order to begin prosecution.

Beneath the indictable crimes in the hierarchy are offenses called “disorderly persons offenses (DPO)” and “petty disorderly persons offenses (PDPO)”. The former carry terms of up to six months in the county jail; the latter rarely result in jail time. Conviction of any of these offenses results in a criminal record, although DPOs and PDPOs are not considered crimes, and a person so convicted may be allowed to say “no” if asked if he has ever been convicted of a crime. This wrinkle in the law is under some attack at present.

Some offenses are violations of municipal ordinances. Often called “T.O.”s (Township Ordinances), these are local regulations that do not appear in a criminal record, although many times, the fines and penalties for ordinance violations can be harsh.
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What is an indictment?

An indictment is a document that is ‘handed down” by a grand jury following a finding that a certain crime has been committed, and that there is reason to believe that the accused may have been the person that committed it. Essentially, the indictment is the document that initiates the criminal prosecution.
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This is my first offense. Does that help?

It is always helpful that a defendant has no prior criminal record. At the very least, it is at least one good thing that the attorney may say on behalf of the defendant at the time of sentencing. Sentencing is when the judge imposes the sentence on a person who has been found guilty or pleaded guilty to an offense. In New Jersey, there is a presumption that a person who is charged with a third degree offense or less , and has no prior indictable convictions , will not be given a jail or prison term. We call it a presumption against incarceration. This means that a first-time offender who pleads guilty or is found guilty of a third or fourth degree crime probably will be put on probation, rather than made to serve a custodial sentence. The presumption against incarceration is rebuttable, however, meaning that, in an appropriate case, a judge may jail a person charged with a third or fourth degree crime, even if that person has no prior criminal record.
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What is probation?

In some cases, a prosecutor may decide to offer, or a judge may impose, a sentence of probation. Probation is the most common alternative to custody. It is a sentence that usually allows the defendant to be free, subject to conditions and terms set by the court. The decision to allow probation rests with the court, which must weigh various aggravating and mitigating factors. Typical conditions of probation would be a curfew, mandatory drug or alcohol counseling, urine monitoring, a “no contact” condition, payment of fines and penalties, gaining or continuing employment, anger management classes, and the like.

Violation of Probation (VOP) often means that the defendant will be taken into custody, often without bail, returned to court, and tried on the original charge. Violations can also result in the swift imposition of the maximum penalty allowed for the charge.
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What is Pre-Trial Intervention (PTI)?

PTI is a program, related to probation, in which a defendant may be allowed into probationary program, even before the case is brought to full prosecution. Often PTI may be offered even pre-indictment (before the case goes before the grand jury). Usually, the program is available for lesser offenses, and the defendant must have no prior criminal history in order to be eligible. Admission into PTI usually requires the approval of the probation department, the consent of the prosecutor, and an order from the judge. Sometimes a judge will require that a defendant plead guilty to an offense in order to apply for Pre-trial Intervention; there is no legal requirement that a plea be entered, however. There is a $75 application fee for the program.

Successful completion of the program will result in the effective elimination of the record of the event, for most purposes.
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What is “conditional discharge”?

Defendants accused of certain drug offenses for possession of small amounts of CDS (controlled dangerous substances) or drug paraphernalia may be eligible for this special program. If the charge is minor enough, and the defendant has no prior drug-related criminal history of any sort, the court may allow the defendant to have his case essentially held in limbo for a period of time, usually one year, during which s/he must be on good behavior. The defendant does not even have to enter a guilty plea in order to qualify, unlike probation, which requires a plea of guilty to qualify.

Conditional discharge applies only in drug cases. Conditions apply. Some New Jersey courts impose no conditions other than that the defendant shall have no arrests during the period. Other courts will impose some of the same conditions that probation may require – reporting to an officer, urine monitoring, substance or anger counseling, remaining employment or in school, and the like. Even though defendants are not required to plead guilty in order to qualify for conditional discharge, they must pay certain fines and penalties, much as if they had been convicted. Most conspicuous among these is the DEDR penalty, usually $500 or more, which is imposed in each drug case, in order to fund the war on drugs.

After the conditional discharge period has passed uneventfully, the record of the event actually disappears for most purposes. Failure to meet the conditions will result in the re-prosecution of the charges.
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I’m a juvenile. What difference does that make?

New Jersey’s juvenile justice system differs greatly from the adult criminal system. For example, juvenile cases are handled in the Family Division, not the Criminal Division of Superior Court. Also, since the juvenile system is designed to rehabilitate the youth, rather than punish the criminal act, the case will not be called “State vs. Jane Doe”, but “The State of New Jersey in the Interest of Jane Doe, Juvenile.”

Another difference is that juvenile charges are brought in the county where the juvenile resides, whereas adults are tried in the county where the offense occurred. Juveniles, unlike adults, have no right to be released on bail or to have a trial by jury. If a juvenile is released she is released to custody of a person, usually a family member or legal guardian. Periodic reviews will consider whether the juvenile may be released from custody pending trial.

Convicted juveniles are not sent to prison, but to places with name like Training School for Boys. Unlike adult sentences, custodial juvenile sentences do not exceed five years, and juvenile records, for most purposes, “disappear” once the juvenile turns eighteen. (Some defendants are surprised to learn that, if they are ever convicted of a subsequent juvenile or adult offense, the judge will consider their entire prior record, including juvenile record, when determining the sentence.) This record may be expunged at a later date, in some circumstances. Juveniles charged with serious offenses, often crimes involving sex, violence, weapons or motor vehicles, may be charged and tried as adults. A “waiver” up into adult court must be requested by the prosecutor and approved by the judge, following a hearing. The juvenile’s exposure at sentencing would be the same as for an adult, often involving many years in prison. The closer a juvenile is to the age of 18, the more likely he or she is to be tried as an adult, where the sentences can be far more severe.
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Bail and bail review motions – what’s the story?

In some cases, such as parking tickets and property violations, a defendant is merely sent a summons to appear in court. In many other cases, defendants are taken into custody. Of these defendants, some are “released on their own recognizance” (ROR), meaning that they are almost certain to appear in court for the next proceeding, and no security seems to be needed to assure that they will return to court. RORs are allowed where the offense is minor or where there is no apparent risk that the accused will fail to appear in court. Her failure to appear will result in a bench warrant for the defendant’s arrest.

In most cases, bail is set. This is an amount of money which must be paid into court as some guarantee that the defendant will return to court for the trial. Judges follow guidelines in setting bail. The amount of bail reflects the seriousness of the offense and the likelihood that the accused will return to stand trial. If bail is affordable, the defendant may be released pending trial. This is usually good, especially if the defendant can return to his employment or school and avoid further trouble while the case is pending. In minor cases, the bail amount may just be the total of unpaid parking tickets. In more serious cases, the bail can be hundreds of thousands of dollars. In some cases, no bail is set, at all.

Sometimes, a court will require that the full amount of bail be paid into court; other times, the court will allow payment of 10 per-cent of that amount.

Sometimes a judge will order that bail be “cash only”or “no ten per-cent.” Sometimes the court will accept a bail bond. A bail bond is usually purchased from a bail bondsman whose fee is usually around ten percent of the amount needed. With sufficient collateral (usually a house, a vehicle or jewelry), and payment of the ten per-cent fee, the bondsman will post the bail money to release the defendant. If the defendant fails to appear in court, or flees the jurisdiction, the bail may be lost, and the bondsman can foreclose on the collateral and send bounty hunters to bring the fugitive defendant back to custody.

If a defendant thinks that bail is too high, and that she might be able to get out if the bail were lower, her lawyer may request a Bail Review Hearing. This is done by a formal motion. In deciding whether to reduce the bail amount or change the terms, the court will consider the nature and degree of the crimes charged, the danger, if any, her release might pose to individuals or the community, and the risk the defendant will fail to appear or will flee the jurisdiction flight. Most experienced attorneys have a sense of how much of a reduction bail will be allowed. It is important that the lawyer knows how much the client will be able to afford if the bail is ultimately reduced. Successfully halving a $100,000 bail to $50,000 may be of no value to a prisoner who can’t afford $25,000. Top