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How to Get Bail and Out of Jail

12/11/2013

Bail is one of the issues most often on the minds of a defendant and their family. Read Judah Fuld's recently published article which outlines the strategies for convincing a judge to release the defendant without bail or to set as low a bail as possible. You can click here to go to article.

Should you or a friend need advice on bail, contact a criminal defense attorney to learn how to make a strong and persuasive bail application.

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How an Ordinary Offense is Classified as a Crime of Domestic Violence

3/19/2013

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If one opens up the New York Penal Law or New Jersey Code of Criminal Justice, one will not find a listing of domestic violence offenses. In fact, domestic violence crimes do not have their own statutes. Instead, the elements of the underlying crime remain the same and the crime is elevated to a domestic violence offense only when the victim falls into a certain class of persons. The classification is not assigned based on any intent or specific act or threat but is instead guided by the relationship between the suspect and alleged victim. For instance, one commits assault if he or she intends to, and thereby causes physical injury to another person. If the victim is one’s spouse, then the prosecutor will prosecute the assault as a crime of domestic violence. Both New York and New Jersey law approach domestic violence crimes in this manner and understanding this classification will serve to better inform one who has been arrested as to whether the crime charged will be prosecuted as a crime of domestic violence.

The New York legislature, in both NY CPL § 530.11 and CLS Family Ct Act § 812, defines domestic violence as certain offenses occurring between spouses or former spouses, parent and child or between members of the same family or household. In defining the term "members of the same family or household", New York includes:

Persons related by consanguinity (blood-related) or affinity (through marriage, i.e. in-laws);
Persons legally married to one another;
Persons formerly married to one another regardless of whether they still reside in the same household;
Persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and
Persons who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Courts consider the following factors in determining whether a relationship is an "intimate relationship": the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. New York has explicitly noted that neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship".

The New Jersey legislature, in N.J.S.A. § 2C:25-19(d), similarly defines a domestic violence offense by looking at the relation of the offender to the victim. New Jersey considers a person to be a victim of domestic violence when any person who is 18 years of age or older or who is an emancipated minor has been subjected to domestic violence by either:

A spouse or former spouse;
Any person who is a present or former household member.
A person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant; or
A person with whom the victim has had a dating relationship.

If you, or anyone you know is suspected, charged or has been arrested for committing an offense against a person who might be classified as a victim of domestic violence, contact our office today to set up a free consultation and talk to a criminal defense attorney. The suspect’s relationship to the victim can characterize the offense as domestic violence and bring into play additional possible penalties and sentences.

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Prosecutors Who Can Read Minds? A look at New Jersey’s presumptive take on “intent to distribute”:

1/17/2013

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Generally, prosecutors can only charge a person with the intent to commit a crime if there is actual proof of that intent. For instance, to prove attempted robbery, a prosecutor must demonstrate that a suspect took an overt act to rob someone. However, in N.J.S.A. 2C:35-5, New Jersey has criminalized Possession of a Controlled Dangerous Substance (C.D.S.) with Intent to Distribute. Surprising to many, a prosecutor need not prove that the suspect transferred, sold or distributed the drugs in exchange for money or the promise of payment.[1] Seemingly, the prosecutor can go after a person for the intent to distribute without any direct proof of a suspect’s plan or overt act to sell or distribute the drugs.

Instead, the New Jersey Legislature has decided that because intent is a state of mind and difficult to prove, intent can instead be gathered from evidence as to the quantity, purity, and packaging of the drugs[2]. The Legislature’s logic is that only a person who intends to distribute a controlled substance would possess the controlled substance in a large quantity, in packaging not conducive to personal use or in purity unique to distribution.

This legal characterization of possession of a C.D.S. with intent to distribute has made it significantly easier for New Jersey prosecutors to crack down on drug dealers. One should therefore be aware that mere possession of a C.D.S. can invite much more serious charges if the quantity, purity, and packaging of the drugs can be used to prove the intent to distribute.

If you or someone you know has been arrested and charged with Possession of a Controlled Dangerous Substance (C.D.S.) with Intent to Distribute, contact a Criminal Defense Attorney to learn more about the charge and discuss how to best prepare for the defense. Contact our office today to schedule a free consultation.

[1] State v. Heitzman, 209 N.J. Super. 617, 621 (App. Div. 1986), aff'd 107 N.J. 603 (1987) .
[2] See State v. Perez, 218 N.J. Super. 478, 482-486 (App. Div. 1987).

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The Criminal Implications of Refusing a DWI Breath Test

7/18/2012

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Both New York and New Jersey have laws known as DWI Refusal Statutes. In N.J.S.A. 39:4-50.4a, New Jersey makes it a crime for a person to refuse to take a chemical breath test after having been arrested for Driving While Intoxicated (DWI). Similarly, NY VTL § 1194 requires a driver to submit to a chemical breath test if there were reasonable grounds to believe the driver was operating a motor vehicle while intoxicated. In both states, refusal to submit to a chemical test results in an immediate charge of Refusal DWI, an offense carrying the same sentencing guidelines as regular DWI.

The Refusal statutes are based on the presumption that anyone who drives within NY or NJ is deemed to have given consent to a chemical test in order to determine the alcohol or drug content in the driver’s blood. In other words, when a person decides to drive a vehicle in either NY or NJ, that person is deemed to have simultaneously agreed to provide a chemical test sample when asked to do so by an officer. Unfortunately, a suspect cannot “plead the Fifth” because the Constitutional Right against Self-Incrimination offers no protection for drivers in this situation. The privilege is only a bar against compelling verbal communications or testimony and does not protect against the compulsion of real or physical evidence[i], such as a breath, urine or blood sample.

Once a driver has been charged with Refusal DWI, the burden is on the prosecutor to prove two crucial facts in order to convict a suspect. The prosecutor must demonstrate beyond a reasonable doubt that (a) that the police officer had probable cause to believe the suspect was driving a vehicle while intoxicated and (b) that the suspect refused to take the chemical test. If a police officer lacked a proper basis to ask a driver to submit to a chemical breath test or the prosecutor cannot demonstrate that the suspect actually and knowingly refused, then the Refusal charge will be dismissed.

If you, or someone you know has been arrested for Refusal DWI, contact a defense attorney today to learn about your rights and how to best defend against the charges going forward. Contact us today to set up a free consultation.

[i] Schmerber v. Cal., 384 U.S. 757, 764 (1966).

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Pre-Trial Intervention as an Alternative to Criminal Prosecution

4/12/2012

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New Jersey provides those eligible with an alternative to the traditional criminal prosecution called Pre-Trial Intervention, or “PTI”. According to the New Jersey Judiciary[1]:

PTI seeks to render early rehabilitative services, when such services can reasonably
be expected to deter future criminal behavior. The PTI program is based on a rehabilitative
model that recognizes that there may be an apparent causal connection between the
offense charged and the rehabilitative needs of a defendant. Further, the rehabilitative
model emphasizes that social, cultural, and economic conditions often result in a defendant's
decision to commit crime.

Simply stated, PTI strives to solve personal problems which tend to result from the
conditions that appear to cause crime, and ultimately, to deter future criminal or disorderly
behavior by a defendant.

The structure of the PTI program is straightforward. If a defendant complies with the conditions of the program and avoids re-arrest, then the case is dismissed. Conditions often include random urine testing, fines, community service, payment of restitution, and/or psychological, drug or alcohol treatment programs. Upon successful completion of the PTI program, the defendant will have no criminal record. If the defendant fails to comply, then he or she is terminated from the program and the case is returned to the regular trial calendar.

New Jersey believes that Pre-Trial Intervention benefits the interests of the public, the victim and the Defendant by correcting the underlying behavior and reducing the risk of re-offense. PTI is also viewed as a way to ensure the court’s resources are used to prosecute more serious offenders.

Eligibility is determined by the County Prosecutor’s office. A complete list of the factors are listed in N.J.S.A. 2C:43-12(e). Among them are Defendant’s age, residence, degree of offense charged, prior criminal record and prior participation in a diversionary program.

Applications to PTI should be made at the commencement of proceedings, typically no later than seven days after the defendant's initial plea to the indictment. If you have been arrested and are interested in applying for Pre-Trial Intervention, contact a Criminal Defense Attorney today to find out if you are eligible and to help you apply to the program. Call us today to set up a free consultation to discuss how PTI can help you.

[1] http://www.judiciary.state.nj.us/criminal/crpti.htm

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Fuld Disclosure
A Legal Blog

About the Author

Prior to joining the office, Judah Fuld served as the Law Clerk to the Honorable David H. Ironson, Superior Court of New Jersey, Criminal Division. Judah first appeared in court as a member of the Fordham Criminal Defense Clinic and has since expanded his work to various areas of criminal and civil law.

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How to Get Bail and Out of Jail

How an Ordinary Offense is Classified as a Crime of Domestic Violence

Prosecutors Who Can Read Minds? A look at New Jersey’s presumptive take on “intent to distribute”:

The Criminal Implications of Refusing a DWI Breath Test

Pre-Trial Intervention as an Alternative to Criminal Prosecution

Fuld Disclosure
A Legal Blog

About the Author

Archives

Categories

How to Get Bail and Out of Jail

How an Ordinary Offense is Classified as a Crime of Domestic Violence

Prosecutors Who Can Read Minds? A look at New Jersey’s presumptive take on “intent to distribute”:

The Criminal Implications of Refusing a DWI Breath Test

Pre-Trial Intervention as an Alternative to Criminal Prosecution

Fuld DisclosureA Legal Blog

About the Author

Archives

Categories

Fuld Disclosure
A Legal Blog