Monday, March 27, 2017

New Court 2:9-14. Motion for Leave to Appeal from Disposition of R. 2:9-13 Appeal

New Court 2:9-14. Motion for Leave to Appeal from Disposition of R. 2:9-13 Appeal
Following the disposition of an appeal as of right filed in the Appellate Division pursuant to R. 2:9-13 (Appeals from Orders Granting Pretrial Detention), requests for relief from the Supreme Court shall be by motion for leave to appeal. Such motions shall conform to the Court Rules governing motions for leave to appeal, including but not limited to R. 2:5-6 (Appeals from Interlocutory Orders, Decisions and Actions) and R. 2:8-1 (Motions), with the following exceptions:
(a) Supporting and answering briefs shall not exceed five (5) pages, exclusive of tables of contents and tables of citations;
(b) The record before the Supreme Court shall be limited to the parties’ briefs on the motion for leave to appeal, the Appellate Division’s disposition of the pretrial detention appeal in the form provided by R. 2:9-13(e), and the documents that comprised the record on the appeal to the Appellate Division, as provided in R. 2:9-13(d). No further submissions shall be filed on the motion for leave to appeal without leave of Court;
(c) The filing of a motion for leave to appeal pursuant to this rule shall not divest the trial court of jurisdiction, unless otherwise ordered by the Court;
(d) Movant shall have a continuing obligation to notify the Court immediately if there is a change to the defendant’s pretrial detention status.
Note: Adopted December 6, 2016 to be effective January 1, 2017. 

Court Rule 2:9-13. Appeals from Orders Granting Pretrial Detention

Rule 2:9-13. Appeals from Orders Granting Pretrial Detention
(a) Appealable Order; Expedition. An order granting a motion for pretrial detention pursuant to R. 3:4A shall be appealable as of right to the Appellate Division. Appeals filed pursuant to this rule shall be expedited.
(b) Time to File Appeal; Order Transcript. An appeal shall be taken by serving and filing a notice of appeal and required Expedited Information Form within seven days of entry of the order granting pretrial detention. If appellant believes that a transcript is necessary to the consideration of the issues on appeal, the transcript shall be ordered at the expedited delivery rate simultaneously with the service and filing of the notice of appeal. A transcript shall be presumed to be required in at least the following instances, unless appellant believes that a transcript is not necessary to decide the issues on appeal: when witnesses have testified in the trial court and the basis of the appeal depends on review of that testimony; when there are material differences between the written order and the oral decision or related colloquy by the court; when an oral procedural or evidentiary ruling is being challenged; and when the trial court's factual findings are challenged. Notwithstanding the above, the court retains the authority to direct that the transcript be ordered by appellant at any time, if, in its determination, the record presented is insufficient for consideration of the issues on appeal.
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(c) Time for Serving and Filing Letter Briefs; Length of Letter Briefs; Reply Letter Briefs. In those appeals in which a transcript has been ordered, the appellant shall serve and file a letter brief and appendix within ten days after the delivery to appellant of the transcript. In those appeals in which no transcript has been ordered, and appellant has opted to file a letter brief, the letter brief and appendix shall be served and filed within ten days after the filing of the notice of appeal. Appellant's letter brief shall not exceed eight pages. The respondent shall serve and file an answering letter brief and appendix within ten days after the service of appellant's letter brief. In those appeals in which no transcript is required and the appellant has opted to rely on the Expedited Information Form and attachment, if any, in lieu of a letter brief, the respondent's brief and appendix shall be served and filed within ten days of the filing of the appellant's Expedited Information Form. Respondent's letter brief shall not exceed eight pages. No reply letter briefs or supplemental letter briefs shall be permitted without leave of court. There shall be no extensions of time to file letter briefs without leave of court.
(d) Consideration on the Record. Pretrial detention appeals shall be submitted for consideration on the record without argument, unless requested by the court. The following shall constitute the record on appeal:
  1. Notice of appeal;
  2. Expedited Information Form;
  3. Detention order with written findings of fact and statement of reasons;
  4. Public Safety Assessment;
  5. Briefs;
  6. Appendices;
  7. Transcript, when required.
(e) Disposition of Appeals. Appeals of orders granting pretrial detention pursuant to this rule may be disposed of by opinion or order.
(f) Trial Court Retention of Jurisdiction. The filing and pendency of an appeal taken pursuant to this rule shall not divest the trial court of jurisdiction, unless otherwise ordered by the court.
(g) Continuing Obligation to Inform Court of Change in Detention Status. Appellant's counsel shall have a continuing obligation to inform the court immediately if there is any change to the appellant's pretrial detention status.
(h) Electronic Filing Required by Attorneys. Appeals of orders granting pretrial detention filed by attorneys must be filed through the Appellate Division's electronic filing application.
(i) Paper Filing by Self-Represented Defendants. Appeals of orders granting pretrial detention filed by defendants representing themselves must be filed in paper.
Note: Adopted October 19, 2016 to be effective January 1, 2017. 

2C:18-3 Unlicensed entry of structures; defiant trespasser; peering into dwelling places; defenses.


2C:18-3  Unlicensed entry of structures; defiant trespasser; peering into dwelling places; defenses.
2C:18-3. a. Unlicensed entry of structures.  A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any research facility, structure, or separately secured or occupied portion thereof, or in or upon utility company property, or in the sterile area or operational area of an airport. An offense under this subsection is a crime of the fourth degree if it is committed in a school or on school property.  The offense is a crime of the fourth degree if it is committed in a dwelling.  An offense under this section is a crime of the fourth degree if it is committed in a research facility, power generation facility, waste treatment facility, public sewage facility, water treatment facility, public water facility, nuclear electric generating plant or any facility which stores, generates or handles any hazardous chemical or chemical compounds.  An offense under this subsection is a crime of the fourth degree if it is committed in or upon utility company property.  An offense under this subsection is a crime of the fourth degree if it is committed in the sterile area or operational area of an airport.  Otherwise it is a disorderly persons offense.

b.Defiant trespasser.  A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(1)Actual communication to the actor; or

(2)Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or

(3)Fencing or other enclosure manifestly designed to exclude intruders.

c.Peering into windows or other openings of dwelling places. A person commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, he peers into a window or other opening of a dwelling or other structure adapted for overnight accommodation for the purpose of invading the privacy of another person and under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed.

d.Defenses.  It is an affirmative defense to prosecution under this section that:

(1)A structure involved in an offense under subsection a. was abandoned;

(2)The structure was at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the structure; or

(3)The actor reasonably believed that the owner of the structure, or other person empowered to license access thereto, would have licensed him to enter or remain, or, in the case of subsection c. of this section, to peer.


Thursday, March 16, 2017

Rule 2:9-1. Control by Appellate Court of Proceedings Pending Appeal or Certification revised 2017

Rule 2:9-1. Control by Appellate Court of Proceedings Pending Appeal or Certification
(a) Control Prior to Appellate Disposition. Except as otherwise provided by R. 2:9- 3, 2:9-4 (bail), 2:9-5 (stay pending appeal), 2:9-7, 2:9-13(f), and 3:21-10(d), the supervision and control of the proceedings on appeal or certification shall be in the appellate court from the time the appeal is taken or the notice of petition for certification filed. The trial court, however, shall have continuing jurisdiction to enforce judgments and orders pursuant to R. 1:10 and as otherwise provided. In addition, when an appeal is taken from an order compelling or denying arbitration, the trial court shall retain jurisdiction to address issues relating to claims and parties that remain in that court. When an appeal is taken from an order involving a child who has been placed in care by the Division of Child Protection and Permanency, the trial court shall retain jurisdiction to conduct summary hearings in due course to address issues not the subject of the appeal relating to the child or the child's family. Unless the appeal concerns the permanency plan of the child, the trial court also shall retain jurisdiction to conduct hearings to address the permanency plan of the child. The appellate court may at any time entertain a motion for directions to the court or courts or agencies below or to modify or vacate any order made by such courts or agencies or by any judge below.
(b) Proceedings on Remand to Tribunal of First Instance. When the judgment or decision of the court, agency or officer of first instance has been reviewed by a court whose judgment is reviewable by the Appellate Division, the appellate court may, if it retains jurisdiction and remands to the tribunal of first instance for any appropriate action therein, direct that after execution of the remand the proceedings be returned to itself without preliminary review by the court to which appeal was first taken.
(c) Ineffective Assistance of Counsel Claim in Appeals from Judgment Terminating Parental Rights. In appeals from judgments terminating parental rights pursuant to N.J.S.A. 30:4C-15 et seq. in which ineffective assistance of counsel has been alleged, the appellate court, if it determines there to be a genuine issue of material fact on the issue of the representation provided by trial defense counsel that requires resolution, may retain jurisdiction and remand the case to the trial judge for an accelerated hearing to be completed within 30 days to be followed promptly by an oral opinion by the trial judge. The parties shall then be permitted simultaneously to exchange supplemental appellate briefs on the limited issue of the remand no later than seven days after the filing of the transcript of the remand proceedings.
Note: Source - R.R. 1:4-1 (first sentence), 1:10-6(a) (first and third sentences). Paragraph (a) amended July 16, 1981 to be effective September 14, 1981; paragraph (a) amended November 1, 1985 to be effective January 2, 1986; new paragraph (c) adopted July 16, 2009 to be effective September 1, 2009; paragraph (a) amended July 19, 2012 to be effective September 4, 2012; paragraph (a) amended July 27,
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2015 to be effective September 1, 2015; paragraph (a) amended October 19, 2016 to be effective January 1, 2017. 

Wednesday, March 15, 2017

2C:12-10 Stalking Definitions; stalking designated a crime; degrees.


2C:12-10 Stalking  Definitions; stalking designated a crime; degrees.
1. a. As used in this act:

(1)"Course of conduct" means repeatedly maintaining a visual or physical proximity to a person; directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person's property; repeatedly committing harassment against a person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person.

(2)"Repeatedly" means on two or more occasions.

(3)"Emotional distress" means significant mental suffering or distress.

(4)"Cause a reasonable person to fear" means to cause fear which a reasonable victim, similarly situated, would have under the circumstances.

b.A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.

c.A person is guilty of a crime of the third degree if he commits the crime of stalking in violation of an existing court order prohibiting the behavior.

d.A person who commits a second or subsequent offense of stalking against the same victim is guilty of a crime of the third degree.

e.A person is guilty of a crime of the third degree if he commits the crime of stalking while serving a term of imprisonment or while on parole or probation as the result of a conviction for any indictable offense under the laws of this State, any other state or the United States.

f.This act shall not apply to conduct which occurs during organized group picketing.

2nd degree 5-10 years          $150,000           [presumption of jail]
3rd degree  3- 5 years           $15,000             1 year- 5 year
4th degree  0- 18 months       $10,000             1 year- 5 year

  There are dozens of other penalties a court can impose, depending on the type of matter. Read


 
2C:12-10.1  Conviction for stalking, permanent restraining order.
3. a. A judgment of conviction for stalking shall operate as an application for a permanent restraining order limiting the contact of the defendant and the victim who was stalked.

b.A hearing shall be held on the application for a permanent restraining order at the time of the verdict or plea of guilty unless the victim requests otherwise.  This hearing shall be in Superior Court.  A permanent restraining order may grant the following specific relief:

(1)An order restraining the defendant from entering the residence, property, school, or place of employment of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim.

(2)An order restraining the defendant from making contact with the victim, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact, or contact via electronic device, with the victim, the victim's employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.  As used in this paragraph, "communication" shall have the same meaning as defined in subsection q. of N.J.S.2C:1-14.

c.The permanent restraining order entered by the court subsequent to a conviction for stalking as provided in this act may be dissolved upon the application of the stalking victim to the court which granted the order.

d.Notice of permanent restraining orders issued pursuant to this act shall be sent by the clerk of the court or other person designated by the court to the appropriate chiefs of police, members of the State Police and any other appropriate law enforcement agency or court.

e.Any permanent restraining order issued pursuant to this act shall be in effect throughout the State, and shall be enforced by all law enforcement officers.

f.A violation by the defendant of an order issued pursuant to this act shall constitute an offense under subsection a. of N.J.S.2C:29-9 and each order shall so state.  Violations of these orders may be enforced in a civil or criminal action initiated by the stalking victim or by the court, on its own motion, pursuant to applicable court rules.  Nothing in this act shall preclude the filing of a criminal complaint for stalking based on the same act, which is the basis for the violation of the permanent restraining order.

L.1996, c.39, s.3; amended 2009, c.232, s.1.
 
2C:12-10.2  Temporary restraining order for alleged stalking; conditions.
2. a. In any case involving an allegation of stalking where the victim is a child under the age of 18 years or is developmentally disabled as defined in section 3 of P.L.1977, c.200 (C.5:5-44.4) or where the victim is 18 years of age or older and has a mental disease or defect which renders the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent, the court may issue a temporary restraining order against the defendant which limits the contact of the defendant and the victim.

b.The provisions of subsection a. of this section are in addition to, and not in lieu of, the provisions of section 3 of P.L.1996, c.39 (C.2C:12-10.1) which provide that a judgment of conviction for stalking shall operate as an application for a permanent restraining order limiting the contact of the defendant and the victim.

c.The parent or guardian of the child or the person described in subsection a. of this section may file a complaint with the Superior Court in conformity with the rules of court seeking a temporary restraining order against a person alleged to have committed stalking against the child or the person described in subsection a. of this section.  The parent or guardian may seek emergency, ex parte relief.  A decision shall be made by the judge regarding the emergency relief forthwith.  If it appears that the child or the person described in subsection a. of this section is in danger of being stalked by the defendant, the judge shall issue a temporary restraining order pursuant to subsection e. of this section.

d.A conviction of stalking shall not be a prerequisite for the grant of a temporary restraining order under this act.

e.A temporary restraining order issued under this act shall limit the contact of the defendant and the child or the person described in subsection a. of this section who was stalked and in addition may grant all other relief specified in section 3 of P.L.1996, c.39 (C.2C:12-10.1).

f.A hearing shall be held in the Superior Court within 10 days of the issuance of any temporary restraining order which was issued on an emergency, ex parte basis.  A copy of the complaint shall be served on the defendant in conformity with the rules of court.  At the hearing the standard for continuing the temporary restraining order shall be by a preponderance of the evidence.

g.If the court rules that the temporary restraining order shall be continued, the order shall remain in effect until either:

(1)the defendant is convicted of stalking, in which case the court shall hold a hearing on the issue of whether a permanent restraining order shall be entered pursuant to section 3 of P.L.1996, c.39 (C.2C:12-10.1); or


(2)the victim's parent or guardian or, in the case of a victim who has reached the age of 18, the victim, requests that the restraining order be dismissed and the court finds just cause to do so.