Saturday, September 1, 2018

Attorney General Memo on Guidance Regarding Municipal Prosecutors’ Discretion in Prosecuting Marijuana and Other Criminal Offenses Gurbir S. Grewal, Attorney General

Attorney General Memo on Guidance Regarding Municipal Prosecutors’ Discretion in Prosecuting Marijuana and Other Criminal Offenses 
Gurbir S. Grewal, Attorney General 
August 29, 2018 
This Memorandum of Guidance (hereinafter “Memorandum”) addresses the scope and appropriate use of prosecutorial discretion by municipal prosecutors handling complaints in municipal court. The Memorandum focuses in particular on how municipal prosecutors may permissibly exercise their discretion in cases involving marijuana-related offenses. 
The first part of this Memorandum addresses whether a municipal prosecutor may adopt a policy or practice of “marijuana decriminalization,” under which the prosecutor and/or his subordinates categorically will not pursue convictions for statutory offenses related to marijuana. The adoption of such a policy or practice would be an abuse of discretion and is therefore prohibited. 
The second part of this Memorandum discusses permissible exercises of prosecutorial discretion by municipal prosecutors at different points in the course of a prosecution. Municipal prosecutors necessarily exercise prosecutorial discretion in discharging the duties of their office. Marijuana-related cases are not unique in this regard. In exercising their discretion, however, prosecutors must be mindful of the need to consider the particular facts and applicable law in each individual case; to justify their decisions to the courts; to make a record that permits review for arbitrariness or discrimination; and to adhere to applicable rules of professional conduct. 
The Legislature is considering changes to how marijuana is treated under state law— including changes that may significantly reduce the number of low-level marijuana cases prosecuted in municipal court. Although legislation may soon make this Memorandum unnecessary or require its amendment, nothing in this Memorandum is intended to reflect upon the Legislature’s ongoing deliberations.
Pursuant to the authority granted to me under the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, which provides for the general supervision of criminal justice by the Attorney General as chief law enforcement officer of the State to secure the benefits of uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State, I, Gurbir S. Grewal, hereby provide the following guidance to all prosecutors operating under the authority of the laws of the State of New Jersey as to the prosecution of marijuana offenses in municipal court. 
I. A Municipal Prosecutor May Not Adopt a Categorical Policy or Practice of Refusing to Seek Convictions for Statutory Offenses Related to Marijuana. 
Prosecutors necessarily exercise some discretion in carrying out the duties of the office. A prosecutor’s discretion is not unlimited, however, and when a municipal prosecutor exceeds the scope of his or her discretion, the County Prosecutor or the Attorney General may intervene. See N.J.S.A. 2B:12-27; see also N.J.S.A. 2A:158-5; N.J.S.A. 2B:25-7. 
It would exceed the scope of a municipal prosecutor’s discretion to adopt a policy or practice of refusing to seek convictions for statutory offenses related to marijuana, notwithstanding the particular facts and applicable law in the individual case before the prosecutor. By categorically suspending enforcement of a State law, a municipal prosecutor impermissibly assumes a role that properly belongs to the Legislature. As explained below, a categorical policy or practice of amending marijuana-related statutory offenses to ordinance violations – or dismissing the charges outright – is impermissible, as is any substantially similar policy or practice. 
Categorical enforcement policies and practices adopted at the county or municipal level may impair one of the objectives of New Jersey’s criminal justice system: to promote the reasonably uniform administration of state laws. See, e.g., N.J.S.A. 2B:25-1. Our system aims to treat similarly situated offenders similarly, without regard to where in the State their conduct allegedly occurred. The discretion of county and municipal prosecutors to adopt categorical may be limited in service of that goal.
Categorical enforcement policies and practices adopted at the county or municipal level also raise questions of preemption. A local governmental unit may not “decriminalize” or 
See, e.g., State v. Brimage, 153 N.J. 1 (1998) (prohibiting county-specific standardized plea offers and policies due to the resulting arbitrary and unreviewable differences between different localities); State v. Baynes, 148 N.J. 434 (1997) (holding that a prosecutor’s rejection of a defendant’s admission into a Pretrial Intervention (PTI) Program “was a patent and gross abuse of discretion” because the prosecutor had “abandoned] his discretion in favor of a per se rule . . . unsupported by the legislative purpose behind both the PTI Statute and the Comprehensive Drug Reform Act, by the Guidelines, and by the caselaw.”); Attorney General’s Directive to Ensure Uniform Enforcement of the “Graves Act” (Oct. 23, 2008; corrected Nov. 25, 2008). 
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otherwise license conduct which violates the State’s criminal code. See N.J.S.A. 2C:1-5(d). Any policy or practice of a municipal prosecutor’s office—or any local governmental ordinance, law, or regulation—is preempted if it conflicts with this principle.The line between permissible and impermissible exercises of discretion is not always a clear one. For that reason, among others, municipal prosecutors should confer with the Municipal Prosecutor Supervisor/Liaison in the County Prosecutor’s Office before adopting a policy or practice that approaches the line. 
Judicial decisions shed light on the difference between prosecutorial discretion and abdication. For example, in State v. Winne, 12 N.J. 152 (1953), the Supreme Court sustained the indictment of the Bergen County Prosecutor for criminal nonfeasance in office due to his alleged failure to enforce state laws against gambling. A county prosecutor, the Court concluded, does not “have it within his power to cripple or nullify the enforcement of the criminal law in his county or to choose at his pleasure the portion of the criminal law he would enforce.” Id. at 170- 71. A “prosecutor winking at and tolerating the violation of the laws” is not properly exercising whatever discretion he possesses. Id. 
“The duty of a prosecuting officer necessarily requires that in each case he examine the available evidence, the law and the facts, and the applicability of each to the other, and that he intelligently weigh the chances of successful termination of the prosecution . . . .” State v. Ward, 303 N.J. Super. 47, 57 (App. Div. 1997) (citing Winne, 12 N.J. at 172). When a prosecutor does not weigh the facts and the applicable law in the case before him, but instead rests his decision- making on categorical policies or practices not grounded in the law, he has not yet begun to exercise his prosecutorial discretion. See Winne, 12 N.J. at 173; see also Baynes, 148 N.J. at 451. 
For these reasons, a municipal prosecutor may not adopt a “decriminalization” policy or practice of refusing to seek convictions for statutory offenses related to marijuana, without regard to the particular facts and applicable law in the individual case before him. This policy applies, but is not limited to, charges of possession of marijuana or hashish, N.J.S.A. 2C:35- 10(a)(4), being under the influence of a controlled dangerous substance or its analog, N.J.S.A. 2C:35-10(b), use or possession with intent to use drug paraphernalia, etc., N.J.S.A. 2C:36-2, and loitering to obtain or distribute a controlled dangerous substance, N.J.S.A. 2C:33-2.1. 
II. Municipal Prosecutors Must Exercise Prosecutorial Discretion on a Case-by-Case Basis, Considering the Particular Facts and Applicable Law in Each Case. 
Municipal prosecutors should exercise their prosecutorial discretion in marijuana-related cases as they would in any other case—based on the particular facts and applicable law, and consistent with their ethical obligations to the State, the defendant, and the courts. The applicable 
 (Jan. 24, 2005) (citing State v. Paserchia, 356 N.J. Super. 461 (App. Div. 2003)) (“[A] plea to a violation of an ordinance, when the underlying charge or charges are governed by State statutes is not permitted.”); see also Memorandum to All County Prosecutors re: Training Powerpoint Presentation for Municipal Prosecutors (Apr. 5, 2011); Memorandum to All Municipal Court Prosecutors re: Plea Agreements in Municipal Courts (Nov. 18, 1998). law in marijuana-related cases may include the Supreme Court’s Guidelines to Part VII of the Rules, which include restrictions on plea agreements involving certain drug-related offenses. Although the law places significant limits on municipal prosecutors’ discretion, the law also grants municipal prosecutors the latitude necessary to see that individual justice is done in individual cases. 
Please consider this additional guidance as to how municipal prosecutors might appropriately exercise their discretion at different points in the prosecution of marijuana-related offenses. 
A. Case Selection and Initiation 
Municipal prosecutors do not have the discretion to decide which cases will be initiated or which offenses will be charged within their jurisdiction. See N.J.S.A. 2B:25-5. The municipal court accepts for filing “every complaint made by any person,” R. 7:2-1(b), and the complaining witness—who may be a private citizen, a law enforcement officer, or another official— determines which offenses to charge in the complaint. R. 7:2-1(a). Unlike a county prosecutor, whose exercise of discretion in deciding which charges to pursue is an important part of their prosecutorial duties, the initial charging decision is not the municipal prosecutor’s to make. Accordingly, a municipal prosecutor has no latitude to use any discretionary authority at this stage of the proceedings to dispense or otherwise deal with statutory offenses related to marijuana. 
B. Plea Agreements, Amendments, and Dismissals 
After a complaint is filed, the municipal prosecutor is “responsible for handling all phases of the prosecution of an offense.” N.J.S.A. 2B:25-5(a). As explained in the Commentary on the Guidelines to Part VII of the Rules, the municipal prosecutor is not duty bound to pursue a conviction on every offense charged in every complaint: 
It is recognized that it is not the municipal prosecutor’s function merely to seek convictions in all cases. The prosecutor is not an ordinary advocate. Rather, the prosecutor has an obligation to defendants, the State and the public to see that justice is done and truth is revealed in each individual case. The goal should be individual justice in individual cases. 
In discharging the diverse responsibilities of that office, a prosecutor must have some latitude to exercise the prosecutorial discretion demanded of that position. . . . 
[Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII cmt. (2018) [Part VII Guidelines].] 
Municipal prosecutors therefore have discretion in appropriate cases to recommend that the court accept a plea to a lesser or other offense, N.J.S.A. 2B:25-11, to move to amend an original charge, N.J.S.A. 2B:25-5(c); N.J.S.A. 2B:25-12, and to request dismissal of a charge, N.J.S.A. 2B:25-5(c). In exercising their discretion, municipal prosecutors must adhere: to constitutional, statutory, and ethical restrictions; to rules, guidance, and decisional law adopted by the Judiciary; and to supervisory instructions of the County Prosecutor and the Attorney General. 
a. Plea agreements 
From 1974 to 1990, all plea bargaining in municipal courts was prohibited, pursuant to a Supreme Court directive. See State v. Hessen, 145 N.J. 441, 446-49 (1996). That prohibition has been relaxed, but the Court’s Part VII Rules and Guidelines still impose significant limits on municipal prosecutors’ discretion to enter into plea agreements, and prohibit the use of plea agreements to resolve certain marijuana and other offenses. See id. at 451-54. 
Plea agreements in municipal court are now governed by Rule 7:6-2; the Court’s Guidelines to Part VII and accompanying Commentary; case law; and guidance from the Office of the Attorney General. When a plea agreement is reached, its terms and the factual basis that supports the charge(s) must be fully placed on the record by the prosecutor, so that the court may review the plea agreement under the “interests of justice” standard. See R. 7:6-2(d). 
The prohibition on resolving certain marijuana and other offenses through plea agreements appears in the Guidelines located in the Appendix to Part VII of the Court Rules. Guideline 4 currently states: 
No plea agreements whatsoever will be allowed in drunken driving or certain drug offenses. 
A. Driving while under the influence of liquor or drugs (N.J.S.A. 39:4-50) and 
B. Possession of marijuana or hashish (N.J.S.A. 2C:35-10a(4)), being under the influence of a controlled dangerous substance or its analog (N.J.S.A. 2C:35-10b), and use, possession or intent to use or possess drug paraphernalia, etc. (N.J.S.A. 2C:36-2). 
.... 
Nothing contained in these limitations shall prohibit the judge from considering a plea agreement as to the collateral charges arising out of the same factual transaction connected with any of the above enumerated offenses in Sections A and B of this Guideline. 
The judge may, for certain other offenses subject to minimum mandatory penalties, refuse to accept a plea agreement unless the prosecuting attorney represents that the possibility of conviction is so remote that the interests of justice requires the acceptance of a plea to a lesser offense. 
under Chapter 35 or 36 of the Code of Criminal Justice arising from the same factual transaction and the defendant pleads guilty to one charge or seeks a conditional discharge under N.J.S.A. 2C:36A-1, all remaining Chapter 35 or 36 charges arising from the same factual transaction may be dismissed by the judge on the recommendation of the prosecutor. See Part VII Guideline 4. Prosecutors should exercise their discretion on a case-by-case basis in evaluating whether to recommend dismissal in this context, and dismissal often will be appropriate. 
b. Amendments and dismissals 
The Guidelines’ prohibitions on certain drug- and alcohol-related plea agreements do not “affect in any way the prosecutor’s discretion in any case to move unilaterally for an amendment to the original charge or a dismissal of the charges pending against a defendant.” Part VII Guideline 3; see also Part VII Guidelines Comment (“Plea agreements are to be distinguished from the discretion of a prosecutor to charge or unilaterally move to dismiss, amend or otherwise dispose of a matter.”). Municipal court complaints charging marijuana-related offenses are subject to the usual rule that a municipal prosecutor may move to amend or dismiss all or part of the complaint “for good cause.” See N.J.S.A. 2B:25-5(c); R. 7:8-5 (dismissal); see also N.J.S.A. 2B:25-12 (amendment); R. 7:14-2 (amendment). 
A municipal prosecutor’s well-founded determination that the State lacks sufficient evidence to proceed ordinarily will constitute “good cause” to amend or dismiss a charge. The Commentary to the Part VII Guidelines states that “a prosecutor should not prosecute when the evidence does not support the State’s charges.” Therefore, insufficient evidence “usually” will be the “cause” for a motion to dismiss a pending charge, and that “the prosecutor should have the ability to amend the charges to conform to the proofs.” Dismissal and amendment on these grounds are the examples of appropriate uses of Guidelines and in guidance from the Division of Criminal Justice. 
 The prohibition of plea agreements for certain marijuana and other drug offenses encompasses any agreement between the prosecutor and the defense “as to the offense or offenses to which a defendant will plead guilty on the condition that any or all of the following occur: (a) the prosecutor will recommend to the court that another offense or offenses be dismissed; (b) the prosecutor will recommend to the court that it accept a plea to a lesser or other offense (whether included or not) than that originally charged; (c)the prosecutor will recommend a sentence(s), not to exceed the maximum permitted, to the court or remain silent at sentencing.” Part VII Guideline 2. A plea agreement includes “all of those traditional practices, utilized by prosecutors and defense counsel, including ‘merger’, ‘dismissal’, ‘downgrade’ or ‘amendment.’” Part VII Guidelines Comment. 
 “No Point” Violations for Graduated Drivers Licensees (Sept. 17, 2008) (“Nothing in this Directive should be construed to limit the authority of the prosecutor to dismiss any charge(s) where the prosecutor represents to the court on the record, either in camera, or in open court, that there is 
While insufficiency of the evidence “usually” will be the basis for an amendment or dismissal, other reasons might justify amendment or dismissal of a complaint. The relevant statutes and Court Rules do not specifically address what other circumstances might constitute “good cause.” To the extent permitted by law, however, a municipal prosecutor should consider the impact of adverse collateral consequences of a conviction based on the specific circumstances or factors presented by the defendant or elicited by the court. Such circumstances or factors may include, but are not limited to: 
1.   The age of the defendant, and the nature and extent of the defendant’s prior criminal record; 
2.   The nature and circumstances of the offense and the arrest; 
3.   Adverse employment or military enlistment consequences (including hindering or precluding future employment, access to professional/occupational licensing, or ability to enlist in the armed services); 
4.   Adverse immigration consequences; 
5.   Adverse educational consequences (including potential removal from school or student housing and hindering or precluding access to student financial assistance); 
6.   Adverse housing and other government benefit consequences (including hindering or precluding future access to public housing and monetary benefits from the government); 
7.   Adverse familial consequences (including parenting/family status changes and financial or other burdens for family members); and 
8.   Other factors identified in the National Prosecution Standards published by move to amend or dismiss a complaint, a municipal prosecutor should be guided by the Court’s admonition that “the prosecutor has an obligation to defendants, the State and the public to see that justice is done and truth is revealed in each individual case.” See Commentary to Part VII Guidelines. “The goal should be to achieve individual justice in individual cases.” Ibid. 
insufficient evidence to warrant a conviction, or that the possibility of acquittal is so great that dismissal of the charge(s) is warranted in the interests of justice.”). 
 (3d ed.), https://ndaa.org/wp-content/uploads/NDAA-NPS-3rd-Ed.-w-Revised-Commentary.pdf. 
The reasons for any amendment or dismissal must be acceptable to the municipal court. If a municipal prosecutor moves to amend or dismiss a complaint, the prosecutor must personally represent on the record the reasons in support of the motion. See Part VII Guideline 3. The prosecutor should anticipate that the court will question the basis for the motion to prevent an improper amendment or dismissal. See, e.g., Memorandum from Philip S. Carchman, J.A.D., to Municipal Court Judges re: Sample Questions for Use in Drunk Driving Cases (Dec. 2, 2004). At all times, the prosecutor should remain mindful of his ethical obligations to the State and the court. See, e.g., In re Norton, 128 N.J. 520, 533-40 (1992); In re Whitmore, 117 N.J. 472, 475-80 (1990). 
C. Sentencing 
Municipal court judges exercise considerable discretion at sentencing. For statutory offenses, the court’s discretion is subject to any statutory maximum or minimum penalties and based on the criteria prescribed by N.J.S.A. 2C:44-1 to -3 and N.J.S.A. 2C:51-2. See R. 7:9-1(b). A municipal prosecutor seeking to mitigate the consequences of a marijuana conviction may make favorable sentencing recommendations or not object to the defendant’s requests. The prosecutor also may support the defendant’s application for a “compelling circumstances” exception to the driver’s license suspension penalty under N.J.S.A. 2C:35-16 and/or the defendant’s application for relief from the Drug Enforcement and Demand Reduction penalty under N.J.S.A. 2C:35-15. 
D. Diversion Programs and Community Court 
A number of programs offer eligible defendants in municipal court cases diversionary treatment as an alternative to traditional prosecution. These include conditional discharge and conditional dismissal programs. In addition, the Cities of Newark and Jersey City operate innovative Community Solutions (or community court) programs focused on remedying some of the underlying causes of low-level crime. Municipal prosecutors may be called upon to recommend whether eligible defendants should be accepted into these programs. Nothing in this Memorandum should deter any municipal prosecutor from freely recommending that any eligible defendant be accepted into any of these diversion programs. 
Recent decisions from the Appellate Division have addressed whether marijuana-related offenses pending against the same defendant in different municipal courts may be consolidated with the defendant’s consent, pursuant to Rule 7:8-4, in order to maintain the defendant’s eligibility for a diversion program. See State v. Whooley, No. A-3395-15T2, 2017 N.J. Super. Unpub. LEXIS 2016 (App. Div. Aug. 8, 2017); State v. Sokolovski, No. A-4734-15T2, 2017 N.J. Super. Unpub. LEXIS 2537 (App. Div. Sept. 17, 2017). The Appellate Division concluded that consolidation was permissible in these cases even though the marijuana-related offenses pending in each municipal court did not “arise] out of the same facts and circumstances.” R.  
7:8-4. Based on the Appellate Division’s decisions, municipal and county prosecutors should consider consenting to consolidation in similar cases to allow defendants to qualify for diversion. 
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III. Effective Date 
On July 24, 2018, I asked all municipal prosecutors to seek an adjournment until September 4, 2018, or later, of any matter involving a marijuana-related offense pending in municipal court, while the Office of the Attorney General developed guidance for prosecutors. That request will expire on September 4, 2018. 
This Memorandum of Guidance shall take effect immediately upon issuance. 


Monday, August 27, 2018

39:4-49.1 Drug possession by motor vehicle operator 


 39:4-49.1 Drug possession by motor vehicle operator     No person shall operate a motor vehicle on any highway while knowingly having in his possession or in the motor vehicle any controlled dangerous substance as classified in Schedules I, II, III, IV and V of the "New Jersey Controlled Dangerous Substances Act," P.L. 1970, c. 226 (C. 24:21-1 et seq.) or  any prescription legend drug, unless the person has obtained the substance or  drug from, or on a valid written prescription of, a duly licensed physician, veterinarian, dentist or other medical practitioner licensed to write prescriptions intended for the treatment or prevention of disease in man or animals or unless the person possesses a controlled dangerous substance pursuant to a lawful order of a practitioner or lawfully possesses a Schedule V substance. 

   A person who violates this section shall be fined not less than $50.00 and shall forthwith forfeit his right to operate a motor vehicle for a period of two years from the date of his conviction.
   This means a mandatory two year license suspension with no ability to drive to work, school, etc. It is important to get this ticket dismissed. It is not subject to Conditional Discharge. The Judge has no discretion to not suspend your license for two years if you plead guilty or are found guilty.
  You need to have your attorney either win at trial or negotiate to have this charge dismissed.

2C :28-6 Tampering with or fabricating physical evidence

2C :28-6 Tampering with or fabricating physical evidence
    A person commits a crime of the fourth degree if, believing that an official  proceeding or investigation is pending or about to be instituted, he:

    (1) Alters, destroys, conceals or removes any article, object, record, document or other thing of physical substance with purpose to impair its verity  or availability in such proceeding or investigation;  or

    (2) Makes, devises, prepares, presents, offers or uses any article, object,  record, document or other thing of physical substance knowing it to be false  and with purpose to mislead a public servant who is engaged in such proceeding  or investigation.

Friday, August 24, 2018

2C :34-1.1 Loitering for the purpose of engaging in prostitution

2C :34-1.1   Loitering for the purpose of engaging in prostitution
   3.  Loitering for the purpose of engaging in prostitution.  a.  As used in this section, "public place" means any place to which the public has access, including but not limited to any public street, sidewalk, bridge, alley, plaza, park, boardwalk, driveway, parking lot or transportation facility, public library or the doorways and entrance ways to any building which fronts on any of the aforesaid places, or a motor vehicle in or on any such place.

   b.  A person commits a disorderly persons offense if he:

   (1)  wanders, remains or prowls in a public place with the purpose of engaging in prostitution or promoting prostitution as defined in N.J.S.2C:34-1; and

   (2)  engages in conduct that, under the circumstances, manifests a purpose to engage in prostitution or promoting prostitution as defined in N.J.S.2C:34-1.

   c.  Conduct that may, where warranted under the circumstances, be deemed adequate to manifest a purpose to engage in prostitution or promoting prostitution includes, but is not limited to, conduct such as the following:

   (1)  Repeatedly beckoning to or stopping pedestrians or motorists in a public place;

   (2)  Repeatedly attempting to stop, or repeatedly attempting to engage passers-by in conversation;

   (3)  Repeatedly stopping or attempting to stop motor vehicles.

   d.  The element described in paragraph (1) of subsection b. of this section may not be established solely by proof that the actor engaged in the conduct that is used to satisfy the element described in paragraph (2) of subsection b. of this section.

   L.1997,c.93,s.3.

Wednesday, August 22, 2018

2A:162-18 Pretrial detention for certain eligible defendants ordered by court; appeal.

2A:162-18 Pretrial detention for certain eligible defendants ordered by court; appeal.

4. a. (1) The court may order, before trial, the detention of an eligible defendant charged with any crime, or any offense involving domestic violence as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19), enumerated in subsection a. of section 5 of P.L.2014, c.31 (C.2A:162-19), if the prosecutor seeks the pretrial detention of the eligible defendant under section 5 of P.L.2014, c.31 (C.2A:162-19) and after a hearing pursuant to that section the court finds clear and convincing evidence that no amount of monetary bail, non-monetary conditions of pretrial release or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process. The court may also order the pretrial detention of an eligible defendant when the prosecutor moves for a pretrial detention hearing and the eligible defendant fails to rebut a presumption of pretrial detention that may be established for the crimes enumerated under subsection b. of section 5 of P.L.2014, c.31 (C.2A:162-19).

(2)For purposes of ordering the pretrial detention of an eligible defendant pursuant to this section and section 5 of P.L.2014, c.31 (C.2A:162-19) or pursuant to section 10 of P.L.2014, c.31 (C.2A:162-24), when determining whether no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, the court may consider the amount of monetary bail only with respect to whether it will, by itself or in combination with non-monetary conditions, reasonably assure the eligible defendant's appearance in court when required.

b.Regarding the pretrial detention hearing moved for by the prosecutor, except for when an eligible defendant is charged with a crime set forth under paragraph (1) or (2) of subsection b. of section 5 of P.L.2014, c.31 (C.2A:162-19), there shall be a rebuttable presumption that some amount of monetary bail, non-monetary conditions of pretrial release or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process. 

c. An eligible defendant may appeal an order of pretrial detention pursuant to the Rules of Court. The appeal shall be heard in an expedited manner. The eligible defendant shall be detained pending the disposition of the appeal.

d. If the court does not order the pretrial detention of an eligible defendant at the conclusion of the pretrial detention hearing under this section and section 5 of P.L.2014, c.31 (C.2A:162-19), the court shall order the release of the eligible defendant pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17).

L.2014, c.31, s.4.

Tuesday, August 21, 2018

2C:17-6 Remove Motor Vehicle Trademark

ALTERED MOTOR VEHICLE 2C:17-6 


POSSESSION OF ALTERED MOTOR VEHICLE
(N.J.S.A.2C:17-6b)model jury charge
Count _________ of the indictment charges the defendant with possessing an altered motor vehicle or motor vehicle part in violation of a statute which provides as follows:
A person who for an unlawful purpose knowingly possesses any motor vehicle, or any of the parts thereof, from or on which any [trademark] [distinguishing or identification number] [serial number or mark] has been [removed] [covered] [altered] [changed] [defaced] [destroyed] [obliterated] is guilty of an offense.
In order for the defendant to be found guilty of possession of an altered motor vehicle, the State must prove the following elements beyond a reasonable doubt:
(1)that the defendantpossessed any motor vehicle, or any of the parts thereof, from or on which any [trademark] [distinguishing or identification number] [serial number or mark] has been [removed] [covered] [altered] [changed] [defaced] [destroyed] [obliterated];
(2)that the defendant knew that the [trademark] [distinguishing or identification number] [serial number or mark] had been [removed] [covered] [altered] [changed] [defaced] [destroyed] [obliterated] from the motor vehicle or any of theparts thereof; and
(3) that the defendant did so for an unlawful purpose.
The first element the State must prove beyond a reasonable doubt is that the defendant possessed any motor vehicle, or any of the parts thereof, from or on which any [trademark] [distinguishing or identification number] [serial number or mark] has been [removed] [covered] [altered] [changed] [defaced] [destroyed] [obliterated].
To possess an item under the law, one must have a knowing, intentional control of that item accompanied by a knowledge of its character.So, a person who possesses an item such as ___________ must know or be aware thathe/shepossesses it, andhe/shemust know what it is thathe/shepossesses or controls.[Possession cannot merely be a passing control, fleeting or uncertain in its nature.]To possess an item, one must knowingly procure orreceive an item or be aware ofhis/hercontrol thereof for a sufficient period of time to have been able to relinquishhis/hercontrol ifhe/shechose to do so.
The State must prove beyond a reasonable doubt that a possessor acted knowingly in possessing the item.A person acts knowinglywith respect to the nature ofhis/herconduct or the attendant circumstances ifhe/sheis aware thathis/herconduct is of that nature, or that such circumstances exist, orhe/sheis aware of the high probability of their existence.A person acts knowingly as to a result ofhis/herconduct ifhe/sheis aware that it is practically certain that the conduct will cause such a result.Knowing, with knowledge or equivalent terms have the same meaning.
Knowledge is a condition of the mind.It cannot be seen.It can only be determined by inferences from conduct, words or acts.Therefore, it is not necessary for the State to produce witnesses to testify that a particular defendant stated, for example, thathe/sheacted with knowledge whenhe/shehad control over a particular thing.It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inference which may arise from the nature of the acts and the surrounding circumstances.
A person may possess an item even though it was not physically onhis/herperson at the time of the arrest, ifhe/shehadin fact, at some time prior tohis/herarrest, had control over it.
[Possession means a conscious, knowing possession, either actual or constructive.]
[A person is in actual possession of an item whenhe/she: first, knows what it is, that is, has knowledge of its character; and second, knowinglyhas it onhis/herperson at a given time.]
[Possession may be constructive instead of actual.]
[Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to and has the intention to exercise control over it.So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of that item.]
[Possession may be sole or joint.If one person alone has actual or constructive possession of an item, possession is sole.If two or more persons share actual or constructive knowing possession of an item, possession is joint.]
A motor vehicle includes motor bicycles, motorcycles, automobiles, trucks, tractors or
other vehicles designed to be self-propelled by mechanical power, and otherwise than by muscular power, except motor vehicles running upon or guided by rails or tracks.[1]
The second element the State must prove beyond a reasonable doubt is the defendant knew that the [trademark] [distinguishing or identification number] [serial number or mark] had been [removed] [covered] [altered] [changed] [defaced] [destroyed] [obliterated] from the motor vehicle or any of the parts thereof.I have already defined knowingly for you.
The third element the State must prove beyond reasonable doubt is that the defendant did so for an unlawful purpose.Here the State alleges the unlawful purpose to be ______________.[Defendant, on the other hand, claims thathis/herpurpose in possessing the motor vehicle or its part(s) was ____________________________________________.]
[CHARGE THE NEXT PARAGRAPH IF THE EVIDENCE
DOES NOT PRESENT A DEFENSE]
[If the State has failed to prove any of the elements beyond a reasonable doubt, you must find the defendant not guilty of the crime of possession of an altered motor vehicle or part(s).If the State has proven every element beyond a reasonable doubt, you must find the defendant guilty of the crime of possession of an altered motor vehicle or part(s).]
[CHARGE IF APPROPRIATE]
The defendant is not guilty of this offense if:
within 10 days after the motor vehicle or any part thereof shall have come into his possession, he files with the [Motor Vehicle Commission] in the Department of Law and Public Safety a verified statement showing: the source of his title, the proper trademark, identification or distinguishing number, or serial number or mark, if known, and if known, the manner of and reason for the mutilation, change, alteration, concealment or defacement, the length of time the motor vehicle or part has been held and the price paid therefor.
Defendant contends thathe/sheis not guilty of the offense becausehe/shefiled such a verified[2]statement in the manner described by this statute.The State has the burden to prove, beyond a reasonable doubt, every element of the crime charged.The State also has the burden to disprove, beyond a reasonable doubt, the defense set forth in this statute.To disprove this defense, the State must disprove, beyond a reasonable doubt, that defendant:
1.Filed a verified statement with the Motor Vehicle Commission;
2.That this verified statement showed the source of defendants title, the proper trademark, identification or distinguishing number, or serial number or mark, if known;
3.That this verified statement set forth the manner of and reason for the mutilation, change, alteration, concealment or defacement, if known, and the length of time the motor vehicle or part has been held and the price paid therefor; and
4.That this verified statement was filed with the Motor Vehicle Commission within 10 days after the [motor vehicle] [part] came into defendants possession.
If you find that the State has proven beyond a reasonable doubt every element of the offense charged and that the State has disproved beyond a reasonable doubt every element of the defense I have described, you must find the defendant guilty.If, however, you find that the State has failed to prove beyond a reasonable doubt one or more of the elements of this offense, or has failed to disprove the defense, you must find the defendant not guilty.
[GRADING]
If you find that the State has proven defendant guilty beyond a reasonable doubt of this crime, then you must determine whether or not the State has proven beyond a reasonable doubt that the value of the [motor vehicle] [motor vehicle parts] [exceeded five hundred dollars] [does not exceed five hundred dollars but is at least two hundred dollars] [is less than two hundred dollars].Value is the fair market value of the [motor vehicle] [motor vehicle part] at the time of the possession.[3]


[1]N.J.S.A.2C:17-6c.
[2]A verification may be defined as a formal declaration made in the presence of an authorized officer, such as a notary public or an attorney at law of the State of New Jersey, by which one swears or affirms to the truth of the statements in the document.SeeBlacks Law Dictionary(7thed.).
[3]N.J.S.A.2C:1-14m.

2C:17-5-Damage to gas Pipes

AGGRAVATED ARSON,N.J.S.A.2C:17 (SECOND DEGREE),model jury charge
AND,
IF APPROPRIATE,N.J.S.A.2C:17
Count _____________ of the indictment charges the defendant with aggravated arson in violation of a statute which provides as follows:
A person is guilty of aggravated arson . . . if he starts a fire or causes an explosion, whether on his own property or anothers:
[READ ONLY THE APPLICABLE SECTION(S)]
(1) Thereby purposely or knowingly placing another person in
danger of death or bodily injury; or
(2) With the purpose of destroying a building or structure of another; or
(3) With the purpose of collecting insurance for the destruction or damage to such property under circumstances which recklessly place any other person in danger of death or bodily injury; or
(4) With the purpose of destroying or damaging a structure in order to exempt the structure, completely or partially, from the provisions of any State, county or local zoning, planning or building law, regulation, ordinance or enactment under circumstances which recklessly place any other person in danger of death or bodily injury; or
(5) With the purpose of destroying or damaging any forest.
In order for the defendant to be found guilty of aggravated arson, the State must prove the following elements beyond a reasonable doubt:
(1) that the defendant purposely [started a fire] [caused an explosion] on his/her own property or anothers;
(2) that the act of starting the fire (causing the explosion)
[SELECT APPROPRIATE ELEMENT OR ELEMENTS]
(a) purposely or knowingly placed another person in danger of death or bodily
Page 1 of 6AGGRAVATED ARSON N.J.S.A. 2C:17-1a (second degree) and, if appropriate, N.J.S.A. 2C:17-1ePage 2 of 6
injury;
(b) was done with the purpose of destroying a building or structure of another;
(c) was done with the purpose of collecting insurance for the destruction or damage to such property under circumstances which recklessly placed any other person in danger of death or bodily injury;
(d) was done with the purpose of destroying or damaging a structure in order to exempt that structure, completely or partially, from the effect of certain legal regulation, under circumstances which recklessly placed any other person in danger of death or bodily injury;
(e) was done with the purpose of destroying or damaging any forest.
The first element that the State must prove beyond a reasonable doubt is:
(1) That the defendant purposely [started a fire] [caused an explosion] at or near
premises known as [describe the property].1
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 believes or hopes that they exist. With purpose, designed, with design, or equivalent terms have the same meaning. Purpose is a condition of the mind that cannot be seen and can only be determined by inferences drawn from the defendants conduct, words or acts. It is not necessary for the State to prove the existence of such a mental state by direct evidence such as a statement by the defendant that he/she had a particular purpose. It is within the power of the jury to find that the proof of purpose has been furnished beyond a reasonable doubt by inferences which you may draw from the nature of the acts and the circumstances surrounding the conduct of the defendant as they have been presented in the evidence you have heard and seen in this case.
1If causation is in issue, chargeN.J.S.A. 2C:2-3.AGGRAVATED ARSON N.J.S.A. 2C:17-1a (second degree) and, if appropriate, N.J.S.A. 2C:17-1ePage 3 of 6
2See Commentary to New Jersey Penal Code, Vol. II, p. 205;State v. Schenck, 100N.J. Super. 162 (App. Div. 1968).
3The act of lighting a match, by itself, is insufficient evidence that defendant purposely started a fire.State in the Interest of M.N., 267N.J. Super.482 (App. Div. 1993).
4See Commentary to New Jersey Penal Code, Vol. II, p. 205;State v. Schenck, 100N.J. Super. 162 (App. Div. 1968).
5To convict of this crime, the jurors need not be unanimous in their finding that the described conduct was committed purposely or knowingly. Some jurors could find the conduct to have been purposeful, while others find it to be knowing.See State v. Bey, 129N.J.557, 581-82 (1992).
6See N.J.S.A. 2C:11-1a.
It is not necessary that any significant damage be done.2It is only necessary that [a fire be started]3[an explosion be caused] for one or more of the purposes to be described. The lack of success of the perpetrator is immaterial.4
(2) The second element the State must prove beyond a reasonable doubt is that at the time the defendant [started the fire] [ caused the explosion],
[SELECT APPROPRIATE SECTION(S)]
he/she purposely or knowingly5placed another person in danger of death or bodily injury. Bodily injury means physical pain, illness or any impairment of physical condition.6I have already defined the term purposely for you. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of a high probability of their existence. A person acts knowingly with respect to a result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result. Knowledge is a condition of the mind that cannot be seen and can only be determined by inferences drawn from the defendants conduct, words or acts. It is not necessary for the State to prove the existence of such a mental state by direct evidence such as a statement by the defendant that he had particular knowledge. It is within the power of the jury to find that the proof of knowledge has been furnished beyond a reasonable doubt by inferences which you may draw from the nature of the acts and the circumstances surrounding the conduct of the defendant as they have been presented in the evidence you have heard and seen in this case;AGGRAVATED ARSON N.J.S.A. 2C:17-1a (second degree) and, if appropriate, N.J.S.A. 2C:17-1ePage 4 of 6
7[U]nless a different meaning plainly is required, structure means any building, 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.N.J.S.A.2C:18-1;N.J.S.A.2C:17-1f. Property is that of another. . .if any one other than the actor has a possessory, or legal or equitable proprietary interest therein. Property is that of another. . .if anyone other than the actor has a legal or equitable interest in the property including, but not limited to, a mortgage, pledge, lien or security interest therein. If a building or structure is divided into separately occupied units, any unit not occupied by the actor is an occupied structure of another.N.J.S.A.2C:17-1f.
8See N.J.S.A.2C:11-1a.
9See N.J.S.A.2C:2-2b(3).
OR
his/her purpose was to destroy [describe the building or structure of another]. Destroy means: to demolish and/or to render useless and/or to render completely ineffective for its intended use. [If in issue, define structure and/or of another.]7I have already defined the term purposely for you;
OR
his/her purpose was to collect insurance for the destruction or damage to such property. I have already defined the term purposely for you; and
(3) That the defendant acted under circumstances which recklessly placed any other person in danger of death or bodily injury. Bodily injury means physical pain, illness or any impairment of physical condition.8A person acts recklessly when he/she consciously disregards a substantial and unjustifiable risk. The risk must be of such a nature and degree that, considering the nature and purpose of the actors conduct and the circumstances known to the person, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actors situation.9
OR
his/her purpose was to destroy or damage a structure in order to exempt the structure, completely or partially, from the provisions of any [State] [county] [local] [zoning] [planning] [building] [law] [regulation] [ordinance] [enactment]. In this case, the State alleges that the [law] [regulation] [ordinance] [enactment] from which the defendant intended to exempt the structure was the following: [read the specific provision]. I have already defined the term purposely forAGGRAVATED ARSON N.J.S.A. 2C:17-1a (second degree) and, if appropriate, N.J.S.A. 2C:17-1ePage 5 of 6
10See N.J.S.A.2C:11-1a.
11See N.J.S.A.2C:2-2b(3).
12See N.J.S.A.2C:17-1f.
13In many cases, it may be necessary to charge arson as a lesser included offense.
you; and
(3) That the defendant acted under circumstances which recklessly placed any other person in danger of death or bodily injury. Bodily injury means physical pain, illness or any impairment of physical condition.10A person acts recklessly when he/she consciously disregards a substantial and unjustifiable risk. The risk must be of such a nature and degree that, considering the nature and purpose of the actors conduct and the circumstances known to the person, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actors situation.11
OR
his/her purpose was to destroy or damage any forest. I have already defined the term purposely for you.
A forest means and includes any forest, brush land, grass land, salt marsh, wooded area and any combination thereof, including but not limited to, an open space area, public lands, wetlands, park lands, natural habitats, a State conservation area, a wildlife refuge area or any other designated undeveloped open space whether or not it is subject to specific protection under law.12In this case, the State alleges that it was defendants conscious object to destroy or damage [describe the forest].
If the State has failed to prove any of the elements as I have described them to you beyond a reasonable doubt, you must find the defendant not guilty of aggravated arson.13If the State has proven every element beyond a reasonable doubt, you must find the defendant guilty of the crime of aggravated arson.
[CHARGE IF APPROPRIATE]
This count of the indictment also alleges that the structure which was the target of theAGGRAVATED ARSON N.J.S.A. 2C:17-1a (second degree) and, if appropriate, N.J.S.A. 2C:17-1ePage 6 of 6
14As used here, health care facility means health care facility as defined in section 2 ofP.L.1971, c. 136 (C.26:2H-2).N.J.S.A.2C:17-1f.
15If the defendant is convicted of aggravated arson, and the target of his crime was a health care facility or a physicians office, the sentence imposed shall include a term of imprisonment, not subject to suspension or other noncustodial disposition.N.J.S.A.2C:17-1e.
16Target is not defined in the statute. Target is defined in the American Heritage Dictionary of the English Language (3rd ed.) as,inter alia, [s]omething aimed or fired at.
17Use destroy if the aggravated arson is charged underN.J.S.A.2C:17-1a(2).
18Use destroy or damage if the aggravated arson is charged underN.J.S.A.2C:17-1a(3) orN.J.S.A.2C:17-1a(4).
offense was [a health care facility]14[a physicians office], specifically: [describe the charged premises]15If you find that the State has proven each of the elements I have previously described, then you must determine whether it has also proven, beyond a reasonable doubt, that the target of the offense was [a health care facility][a physicians office].
In order for you to determine that the [health care facility][physicians office] was the target16of the aggravated arson, the State must prove beyond a reasonable doubt that it was the defendants purpose to [destroy]17[destroy or damage]18a [health care facility] [physicians office]. I have already defined purposely for you.
If you find that the State has failed to prove this additional element beyond a reasonable doubt, but has proven beyond a reasonable doubt that the defendant has committed aggravated arson, then you must find the defendant not guilty of aggravated arson of a [physicians office] [health care facility], but guilty of aggravated arson. On the other hand, if you find that the State has proven beyond a reasonable doubt all of the elements of aggravated arson and this additional element, then you must find the defendant guilty of aggravated arson of a [physicians office] [health care facility]. Finally, if you find that the State has failed to prove any of the elements of aggravated arson beyond a reasonable doubt, then you must find the defendant not guilty.