Probation in Lieu of Jail
Kenneth Vercammen's Law office represents
individuals charged with criminal offenses. We provide representation
throughout New Jersey. Criminal charges
can cost you. If convicted, you can face
jail, fines, Probation and other penalties.
Don't give up! Our Law Office can
provide experienced attorney representation for criminal offenses in juvenile
matters, and other offenses. Our website
www.njlaws.com provides information on criminal offenses we can be retained to
represent people.
Violation
of a Term of Probation or of a Suspended Sentence: Statutory Provisions
1.
Statutory Authority for Summons, Arrest, and Detention.
N.J.S.A.
2C:45-3(a)(1) provides that at any time during a term of sentence suspension or
probation the court may summons the defendant to appear before it or issue a
warrant for the defendant's arrest. N.J.S.A. 2C:45-3(a)(2) allows a probation
officer or peace officer to arrest the defendant without a warrant upon
probable cause that the defendant violated a term of sentence suspension or
probation.
(a)
Hearing. N.J.S.A. 2C:45-4 instructs that the defendant must
receive written notice of the violation charges and must be provided a hearing
at which he or she "shall have the right to hear and controvert the
evidence against him [or her], to offer evidence in his [or her] defense, and
to be represented by counsel." The court may hold the defendant without
bail pending decision on the charges. N.J.S.A. 2C:45-3(a)(3).
(b)
Tolling Pending Disposition of the Charges. The probation or suspension
period is tolled pending disposition of the violation charges. N.J.S.A.
2C:45-3(c). In the event the court finds no violation of probation, the period
will be deemed not tolled. Ibid.
2.
Revocation of Probation or Sentence Suspension. If
the court finds "that the defendant has inexcusably failed to comply with
a substantial requirement imposed as a condition of" probation or sentence
suspension, or if the defendant is convicted of another offense, the court
"may revoke the suspension or probation and sentence or resentence the defendant."
N.J.S.A. 2C:45-3(a)(4). However, "[n]o revocation of suspension or
probation shall be based on failure to pay a fine or make restitution, unless
the failure was willful." Ibid.
3.
Resentencing the Initial Offense. In resentencing the initial offense,
the court may impose "any sentence that might have been imposed
originally." N.J.S.A. 2C:45-3(b).
4.
Credit for time served. Pursuant to N.J.S.A. 2C:45-1(e), if the court
imposes a term of incarceration as a condition of probation or sentence suspension,
"[t]he term of imprisonment . . . shall be treated as part of the
sentence, and in the event of a sentence of imprisonment upon the revocation of
probation, the term of imprisonment served hereunder shall be credited toward
service of such subsequent sentence."
5.
Sentencing on the New Offense Where the Court Does Not Revoke Probation or
Sentence Suspension. N.J.S.A. 2C:44-5(g) provides: "When a
defendant is convicted of an offense committed while under suspension of
sentence or on probation and such suspension or probation is not revoked,"
the following rules apply.
(a)
Imprisonment in Excess of One Year. Where the court imposes
imprisonment in excess of one year, the new sentence "shall not satisfy
the prior suspended sentence or sentence to probation, unless the court
determines otherwise at the time of sentencing." N.J.S.A. 2C:44- 5(g)(1).
(b)
Imprisonment of One Year or Less. Where the court imposes a term of
imprisonment of one year or less, "the period of the suspension or
probation shall not run during the period of such imprisonment." N.J.S.A.
2C:44-5(g)(2).
(c)
Imposition of Another Term of Probation or Sentence Suspension. Where
the court imposes another suspended term or period of probation, "the
period of such suspension or probation shall run concurrently with or
consecutively to the remainder of the prior periods, as the court determines at
the time of sentence." N.J.S.A. 2C:44-5(g)(3).
C. Probation and Suspended Sentences: Case Law
1.
The Difference Between Probation and Suspended Sentence.
"The
difference between suspension and probation is that probation places the
defendant under the supervision of the County Probation Office and normally
carries a requirement to report to that office periodically whereas suspension
is ordinarily without such supervision." State v. Malave, 249 N.J. Super.
559, 563-64 (App. Div. 1991), certif. denied, 127 N.J. 559 (1992). "In
essence, suspension of imposition of sentence is tantamount to 'unsupervised'
or 'non-reporting' probation. It is less onerous than probation." State v.
Cullen, 351 N.J. Super. 505, 508 (App. Div. 2002).
2.
Suspended Sentence. "A court may suspend the imposition of a
sentence only after first determining that a non-custodial sentence is
authorized and appropriate." State v. Rivera, 124 N.J. 122, 126 (1991).
3.
Reasons for a Suspended Sentence. "As a practical matter, a
sentencing court may postpone the imposition of sentence for certain reasons
such as obtaining information about the defendant or to permit a defendant to
comply with a plea agreement, for example, by cooperating with the prosecution
and testifying in another matter. Sentence, however, 'shall be imposed without
unreasonable delay.'" State v. Rivera, 124 N.J. 122, 126 (1991) (quoting
R. 3:21-4(a)).
4. Aggravating
and Mitigating Factors and Probation. The court must weigh the
aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) in
deciding whether to impose a term of probation. State v. Baylass, 114 N.J. 169,
174 (1989).
5.
Sentencing on Multiple Offenses, Probation and Imprisonment.
"When
a defendant is sentenced for more than one offense, . . . N.J.S.A.
2C:44-5(f)(1) prohibits the court from imposing both a sentence of probation
and a sentence of imprisonment, except as authorized by N.J.S.A.
2C:43-2(b)(2)" (split sentence). State v. Crawford, 379 N.J. Super. 250,
259 (App. Div. 2005).
6.
Conditions of Probation. The court may impose as a condition of probation a
requirement that is not expressly authorized by N.J.S.A. 2C:45-1(b) (conditions
of probation), as long as the condition "substantially relate[s] to an
appropriate penological and rehabilitative objective" and "is not
unduly restrictive of" a defendant's liberty. State v. Krueger, 241 N.J.
Super. 244, 256-57 (App. Div. 1990). The condition must end with the
probationary term. Id. at 256.
7.
Resentencing After a Violation of Probation or Suspended Sentence.
(a)
Right of Allocution. The defendant has the right to speak on his or her
own behalf at resentencing on a violation of probation. State v. Lavoy, 259
N.J. Super. 594, 598-99 (App. Div. 1992).
(b)
Considerations in Resentencing, the Baylass Standard.
When
resentencing a defendant after a violation of probation or a suspended
sentence, the court considers how the violation affects the weight accorded to
the mitigating factors identified at the initial sentencing hearing. State v.
Baylass, 114 N.J. 169, 178 (1989); State v. Molina, 114 N.J. 181, 184-85
(1989). State v. Hannigan, 408 N.J. Super. 388, 391 (App. Div. 2009) (applying
the Baylass standard to a violation of a suspended sentence term). The court
may not find any new aggravating factors, and it may not use the violation of
probation as a basis to impose consecutive terms. State v. Baylass, 114 N.J. 169,
176-78 (1989). In weighing the mitigating factors, the court may consider the
defendant's amenability to probation, including the ability to lead a
law-abiding life and the likelihood that the defendant will respond to
probationary treatment. Id. at 176-77.
(c)
Downgrading. A downgrade to one degree lower, pursuant to
N.J.S.A. 2C:44-1(f)(2), does not survive a violation of probation. State v.
Frank, 280 N.J. Super. 26, 40 (App. Div.), certif. denied, 141 N.J. 96 (1995).
In resentencing, the court must reweigh the aggravating and mitigating factors
found at the initial sentencing hearing in relation to the probation violation.
Ibid.
(d)
Sentence Modification and the No Early Release Act.
Where
the court modified, pursuant to Rule 3:21-10, a second degree robbery
conviction to probation, and the defendant subsequently violated probation, on
resentencing the court had to impose a period of parole ineligibility mandated
by the No Early Release Act. State v. Kearns, 393 N.J. Super. 107, 110-11 (App.
Div. 2007).
(e)
Generally Parole Ineligibility Should Not Be Imposed on Resentencing. A
parole disqualifier should not ordinarily be imposed when resentencing a
defendant after a probation violation since, at the original sentencing, the
mitigating factors weighed in favor of probation. State v. Baylass, 114 N.J.
169, 178 (1989).
(f)
Credit for Time Served. A defendant receives credit against a sentence for
a probation violation for time served in jail as a condition of probation and
for time served on parole following release from jail. State v. Rosado, 131
N.J. 423, 426-28 (1993) (explaining that parole is the legal equivalent of
imprisonment for purposes of determining credit under N.J.S.A. 2C:45-1(e)
(formerly N.J.S.A. 2C:45-1(d)); State v. Mercadante, 299 N.J. Super. 522,
533-32 (App. Div. 1997). "[T]he credit is to be applied against the
aggregate term, and not against [a] Legislatively required parole ineligibility
term of incarceration." State v. Mercadante, 299 N.J. Super. 522, 533
(App. Div. 1997). However, the Court said, " [w]e perceive a different
result if, in fact, there was no ability to credit parole time against the base
term because of the expiration of too great a portion of the aggregate term to
permit full credit for the time served on parole." Id. at 534.
Source
https://www.njcourts.gov/attorneys/assets/attyresources/manualsentencinglaw.pdf
The following are
the major Court Rules and statutes dealing with Probation and Suspended
Sentences in Superior Court matters
Rule 3:21-7
states:
After
conviction, unless otherwise provided by law, the court may suspend the
imposition of a sentence or the defendant may be placed on probation.
(a) Conditions. The order shall require the defendant to
comply with standard conditions adopted by the court and filed by counsel with
the criminal division manager as designee of the deputy clerk of the Superior
Court (except as otherwise ordered), as well as such special conditions,
including a term of imprisonment pursuant to N.J.S.A. 2C:45-1c, as the court
imposes. As a condition of probation the court may impose a term of
community-related service to be performed by the defendant under such terms and
conditions as the court may determine. A copy of the order, together with the
standard and special conditions, shall be furnished to the defendant, and read
and explained to the defendant by the probation officer, whereupon the
defendant and the probation officer shall sign a joint statement, to be filed
with the criminal division manager as designee of the deputy clerk of the
Superior Court, as to the officer's compliance with such reading and explanation
requirement. If the defendant refuses to sign such statement, the defendant
shall be resentenced.
(b) Detention. The court may, pursuant to N.J.S.A.
2C:45-3a(3), upon a showing of probable cause that the defendant has committed
another offense, detain without bail pending determination of the charge, a
defendant who was sentenced to probation or whose sentence was suspended.
(c) Revocation. At any time before termination of the period
of suspension or probation, the court may revoke a suspension or probation
pursuant to N.J.S.A. 2C:45-3.
NJSA 2C:45-1. sets forth the Conditions of Suspension or
Probation.
a. When the court
suspends the imposition of sentence on a person who has been convicted of an
offense or sentences him to be placed on probation, it shall attach such
reasonable conditions, authorized by this section, as it deems necessary to
insure that he will lead a law-abiding life or is likely to assist him to do
so. These conditions may be set forth in a set of standardized conditions
promulgated by the county probation department and approved by the court.
b. The court, as a
condition of its order, may require the defendant:
(1) To support his
dependents and meet his family responsibilities;
(2) To find and
continue in gainful employment;
(3) To undergo available medical or psychiatric
treatment and to enter and remain in a specified institution, when required for
that purpose;
(4) To pursue a
prescribed secular course of study or vocational training;
(5) To attend or reside in a facility established
for the instruction, recreation or residence of persons on probation;
(6) To refrain from
frequenting unlawful or disreputable places or consorting with disreputable
persons;
(7) Not to have in his
possession any firearm or other dangerous weapon unless granted written
permission;
(8) (Deleted by
amendment, P.L.1991, c.329);
(9) To remain within
the jurisdiction of the court and to notify the court or the probation officer
of any change in his address or his employment;
(10) To report as
directed to the court or the probation officer, to permit the officer to visit
his home, and to answer all reasonable inquiries by the probation officer;
(11) To pay a fine;
(12) To satisfy any other
conditions reasonably related to the rehabilitation of the defendant and not
unduly restrictive of his liberty or incompatible with his freedom of
conscience;
(13) To require the
performance of community-related service.
c. The court, as a
condition of its order, shall require the defendant to pay any assessments
required by section 2 of P.L.1979, c.396 (C.2C:43-3.1) and shall, consistent
with the applicable provisions of N.J.S.2C:43-3, N.J.S.2C:43-4 and
N.J.S.2C:44-2 or section 1 of P.L. 1983, c.411 (C.2C:43-2.1) require the
defendant to make restitution.
d. In addition to
any condition imposed pursuant to subsection b. or c., the court shall order a
person placed on probation to pay a fee, not exceeding $25.00 per month for the
probationary term, to probation services for use by the State, except as
provided in subsection g. of this section.
This fee may be waived in cases of Indigency upon application by the
chief probation officer to the sentencing court.
e. When the court sentences
a person who has been convicted of a crime to be placed on probation, it may
require him to serve a term of imprisonment not exceeding 364 days as an
additional condition of its order. When
the court sentences a person convicted of a disorderly persons offense to be
placed on probation, it may require him to serve a term of imprisonment not
exceeding 90 days as an additional condition of its order. In imposing a term of imprisonment pursuant
to this subsection, the sentencing court shall specifically place on the record
the reasons, which justify the sentence imposed. The term of imprisonment imposed hereunder
shall be treated as part of the sentence, and in the event of a sentence of
imprisonment upon the revocation of probation, the term of imprisonment served
hereunder shall be credited toward service of such subsequent sentence. A term of imprisonment imposed under this
section shall be governed by the "Parole Act of 1979," P.L.1979,
c.441 (C.30:4-123.45 et al.).
Whenever a person is serving a term of parole as a result of a
sentence of incarceration imposed as a condition of probation, supervision over
that person shall be maintained pursuant to the provisions of the law governing
parole. Upon termination of the period
of parole supervision provided by law, the county probation department shall
assume responsibility for supervision of the person under sentence of
probation. Nothing contained in this
section shall prevent the sentencing court from at any time proceeding under
the provisions of this chapter against any person for a violation of
probation.
f. The defendant
shall be given a copy of the terms of his probation or suspension of sentence
and any requirements imposed pursuant to this section, stated with sufficient
specificity to enable him to guide himself accordingly. The defendant shall
acknowledge, in writing, his receipt of these documents and his consent to
their terms.
g. Of the moneys
collected under the provisions of subsection d. of this section, $15.00 of each
monthly fee collected before January 1, 1995 shall be deposited in the
temporary reserve fund created by section 25 of P.L.1993, c.275, and $10.00 of
each shall be deposited into a "Community Service Supervision Fund"
which shall be established by each county.
The moneys in the "Community Service Supervision Fund" shall
be expended only in accordance with the provisions of State law as shall be
enacted to provide for expenditures from this fund for the purpose of
supervising and monitoring probationers performing community service to ensure,
by whatever means necessary and appropriate, that probationers are performing
the community service ordered by the court and that the performance is in the
manner and under the terms ordered by the court.
2C:45-2. Period of
Suspension or Probation; Modification of Conditions; Discharge of
Defendant
a. When the court has suspended imposition of
sentence or has sentenced a defendant to be placed on probation, the period of
the suspension shall be fixed by the court at not to exceed the maximum term
which could have been imposed or more than 5 years whichever is lesser. The
period of probation shall be fixed by the court at not less than 1 year nor
more than 5 years. The court, on application of a probation officer or of the
defendant, or on its own motion, may discharge the defendant at any time.
b. During the period of the suspension or
probation, the court, on application of a probation officer or of the
defendant, or on its own motion, may (1) modify the requirements imposed on the
defendants; or (2) add further requirements authorized by N.J.S.2C:45-1. The court shall eliminate any requirement
that imposes an unreasonable burden on the defendant.
c. Upon the termination of the period of
suspension or probation or the earlier discharge of the defendant, the
defendant shall be relieved of any obligations imposed by the order of the
court and shall have satisfied his sentence for the offense unless the
defendant has failed:
(1) to fulfill conditions imposed pursuant to
paragraph b. (11) of N.J.S.2C:45-1, in which event the court may order that the
probationary period be extended for an additional period not to exceed that
authorized by subsection a. of this section; or
(2) to fulfill the conditions imposed pursuant to
subsection c. of N.J.S.2C:45-1, in which event the court shall order that the
probationary period be extended for an additional period not to exceed that
authorized by subsection a. of this section.
The extension may be
entered by the court without the defendant's personal appearance if the
defendant agrees to the extension.
2C:45-3. Summons or arrest of defendant under
suspended sentence or on probation;
commitment without bail;
revocation and resentence
a. At any time before the discharge of the
defendant or the termination of the
period of suspension or probation:
(1) The court may
summon the defendant to appear before it or may issue a warrant for his arrest;
(2) A probation officer
or peace officer, upon request of the chief probation officer or otherwise
having probable cause to believe that the defendant has failed to comply with a
requirement imposed as a condition of the
order or that he has committed another offense, may arrest him without a
warrant;
(3) The court, if
there is probable cause to believe that the defendant has committed another offense or if he has been
held to answer therefor, may commit him
without bail, pending a determination of the charge by the court having jurisdiction thereof;
(4) The court, if
satisfied that the defendant has inexcusably failed to comply with a
substantial requirement imposed as a condition of the order or if he has been convicted of another offense, may
revoke the suspension or probation and sentence or resentence the defendant, as
provided in this section. No revocation
of suspension or probation shall be based on failure to pay a fine or make restitution, unless the
failure was willful.
b. When the court revokes a suspension or
probation, it may impose on the defendant any sentence that might have been
imposed originally for the offense of which he was convicted.
c. The commencement of a probation revocation
proceeding shall toll the probationary period until termination of such
proceedings. In the event that the court does not find a violation of
probation, this subsection shall not operate to toll the probationary period.
2C:45-4. Notice and
hearing on revocation or modification of conditions of suspension or probation
The court shall not
revoke a suspension of sentence or probation or delete, add or modify conditions of probation except
after a hearing upon written notice to
the defendant of the grounds on which such action is proposed. The defendant
shall have the right to hear and controvert the evidence against him, to offer evidence in his defense, and to be
represented by counsel.
Call our office
to schedule a confidential consultation
KENNETH VERCAMMEN &
ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
TRIAL AND LITIGATION EXPERIENCE
In his private
practice, he has devoted a substantial portion of his professional time to the
preparation and trial of litigated matters.
He appears in Courts throughout New Jersey several times each week on
many personal injury matters, Criminal and Municipal/ traffic Court trials,
Probate hearings, and contested
administrative law hearings.
Mr. Vercammen
served as the Prosecutor for the Township of Cranbury, Middlesex County and is
involved in trials on a weekly basis. He
also argued all pre-trial motions and post-trial applications on behalf of the
State of New Jersey.
He has also
served as a Special Acting Prosecutor in Woodbridge, Perth Amboy, Hightstown,
Carteret, East Brunswick, Jamesburg, South Brunswick, South River and South Plainfield for conflict
cases. Since 1989, he has personally
handled hundreds of criminal and motor vehicle matters as a Prosecutor and now
as defense counsel and has had substantial success.
Previously, Mr.
Vercammen was Public Defender for the Township of Edison and Borough of
Metuchen He represented all indigent individuals facing consequences of
magnitude. On a twice-weekly basis, he
was in Court trying cases and making motions.
In 1990 and 1991, he represented approximately 250 clients and handled
difficult criminal and motor vehicle matters.
Every case he personally handled and prepared.
His resume sets
forth the numerous bar associations and activities which demonstrate his
commitment to the legal profession and providing quality representation to
clients.
Since 1985, his
primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences
as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme
Court) with the Delaware County, PA District Attorney Office handling Probable
Cause Hearings, Middlesex County Probation
Department as a Probation Officer, and
an Executive Assistant to Scranton District Magistrate, Thomas Hart, in
Scranton, PA.
