Criminal FAQ

Criminal Questions

Will I go to jail?

The imposition of jail time depends on numerous factors. As a general rule if you are a first offender and have not committed a crime of violence or a sale of large amounts of drugs or any within a school zone it is unlikely that you will be incarcerated. One new exception to this rule is possession of a loaded handgun. This law was upgraded in 2008 to a second degree carrying a presumption of incarceration. Also theft of over $75,000 would carry a similar presumption.

In all cases, the first issue is whether you will be convicted. An experienced criminal trial attorney can usually determine what the odds of conviction are and what sentence you will likely receive. This information can then be factored into the decision on how to proceed. Even if convicted and even in those cases mentioned above, an experience attorney may influence the sentencing determination in your favor. Information on your background, the facts surrounding the case and many other factors should be presented to various parties at the proper time. Knowing what to present, to whom and when makes all the difference. My office offers a free telephone consultation where these issues can be discussed.

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Will I have a record?

If you were arrested for a 2C violation you will have a record of at least the arrest.

These records and many records of conviction may be expunged pursuant to strict rules and the records hidden from most potential employers. All records of motor vehicle convictions are permanently on your driving record. The points may come off but the record remains.

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Will I be deported?

This has become a real concern for noncitizens. An aggravated felony, any offense where you potentially could serve over 364 days in jail, can result in deportation. Other charges, such as domestic violence and DWI, may cause problems as well. Immigration Law is a separate specialty. I do not claim an expertise in this area and therefore refer such matters to a firm that specializes in this area. These excellent lawyers tell me what would be the most beneficial disposition for you in the Criminal Courts. I then try to obtain this result so they can help you best with the INS. Our collaboration has worked well for two decades.

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What is an "Attempt?"

In some circumstances a "crime" can be punished before it occurs. Many jurisdictions have either a general "attempt" crime or individual statutes that make attempted murder or attempted robbery, or the like, a crime. The purpose of these statutes is to punish an individual who has shown himself or herself to be dangerously inclined to commit a crime without waiting until the criminal act is actually completed. In order to convict a person for an attempted crime, the State must prove beyond a reasonable doubt that the person had the intent to commit an act or bring about certain consequences that would amount to a crime, and that he or she took some step beyond mere preparation toward that goal.

Whether the offender has the intent necessary to be convicted of attempt depends on the mental state required by the underlying crime. If a person's actual intention at the time he or she attacked the victim was to cause bodily harm, he or she cannot be convicted of attempted murder if the victim does not die (However, he could be convicted of the actual crime of murder if the victim died, even if his intention was only to cause bodily harm). Likewise, a person whose plan to steal fails can be convicted of attempted theft, which requires the intention to deprive another of his or her property permanently, only if he or she had the same intention at the time the crime was attempted.

Like most crimes, attempt requires a "bad act" as well as a bad intention. Therefore, the State must prove the offender engaged in conduct that moved toward committing the crime. The exact nature of the act needed to meet this "preparation" requirement varies from case to case, depending on individual facts. For example, a person who checked in at the ticket counter of an airport and sat in the waiting area with a gun in his pocket could be convicted of the crime of attempting to board an airplane with a gun. A person who planned to rob a bank messenger and drove around looking for him on his regular route, but did not find him, and did nothing else would not necessarily be guilty of attempted robbery.

The punishment for the crime of attempt can be the same as the punishment for the completed crime. The Model Penal Code, which is a source of many States' criminal statutes, generally requires the same punishment for attempt as the punishment for the underlying crime on the rationale that a person who attempts a crime has shown himself to be just as much in need of corrective sanctions as the one who actually completes a crime.

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Are there special crimes to control juvenile behavior?

While there is a special Court system (Superior Court Family Part) to handle juvenile crime, there is no special juvenile criminal code. The adult criminal code is applied in the juvenile system, but the children are not generally accused of crimes. Instead, they are accused of committing delinquent acts. Sentences are called dispositions, a child is not convicted but adjudicated delinquent, and the dispositions are designed to educate and rehabilitate children, rather than punish them. Under certain circumstances a juvenile may be "waived" up and treated as an adult in the Superior Court Criminal Part.

In earlier days, special crimes that only applied to children did exist. These crimes were the so-called status offenses and punished behavior that would not be criminal if committed by an adult. Status offenses included running away from home, skipping school, disobeying parents, and breaking curfew. These "JINS" offenses (Juvenile in Need of Supervision) do not usually require attorney representation. These behaviors may trigger an investigation by child protective services to determine if the child needs assistance from the Court or social service agencies.

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How does a prosecutor decide which criminals to charge?

A prosecutor has the discretion to decide which crimes should be charged. In a typical case, the police investigate a crime and send a report to the prosecutor. The prosecutor then must decide whether to bring criminal charges against the subject of the investigation. First, the prosecutor analyzes the case to determine if it is legally sound. The case must not have any obvious defects that will get it thrown out of Court, such as violation of the defendant's constitutional rights or destruction of evidence crucial to the defense. Next, the prosecutor decides if there is adequate and reliable evidence of the person's guilt. The prosecutor must determine that the amount of evidence, and the quality of evidence, makes conviction probable. If offering a plea, such as an agreement by the defendant to undergo drug treatment in return for a suspended sentence, is appropriate, the prosecutor may prefer to dispose of the case in this manner. Additional factors which may influence the prosecutor's decision include the defendant's culpability, which may be lacking because he or she acted out of a worthy motive or has mental defects. Finally the prosecutor must decide if he has the resources to pursue the case or if it is a low priority for that particular office.

The prosecutor may decide to downgrade the case to Municipal Court or dismiss the case entirely. All of these decisions may be affected by information submitted on your behalf. That is why early representation is worthwhile.

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What is the difference between rape and sexual assault?

Rape is often used as a generic term for unwanted sexual acts. However, historically its common law definition required the sexual act to be intercourse, the rapist to be a man and the victim to be a woman, other than his wife. Furthermore, the act had to be committed as a result of force or the threat of force. Common law rules often required the rape to be corroborated by independent witnesses to negate the offender's defense of consent.

The New Jersey Criminal Code no longer use the term "rape", but instead use sexual contact or sexual assault to define the prohibited acts. Rape is covered by these statutes and may be designated as sexual assault in the first degree or second degree. Sexual assault statutes cover intercourse as well as other sexual acts and apply to homosexuals as well as heterosexuals. Generally, husbands can be charged with sexual assault of their wives, although they may receive a lighter sentence than nonmarital sexual assault. Lesser offenses, such as unwanted touching or lascivious acts may be included in the definition of sexual assault.

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What is ISP or Drug Court?

These are intensive supervisory release programs. ISP is a parole program, Drug Court a probation program. Both programs allow for trading certain jail time for intensive conditions of supervision such as curfew, weekly reporting and drug screening, constant employment, home visits and schooling. These programs are not for the person seeking to "get over." Failure means long prison time.

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