Criminal offenses are heard, or considered in Superior Court, and are more serious than non-criminal charges heard in municipal courts where the offense occurred. Defendants found guilty, or "convicted" of crimes face more serious consequences, with punishments spanning probation supervision and fines to the loss of liberty through confinement for a year or more. Crimes are classified by degree. Degrees range from first to fourth degree offenses. A First degree crime carries the potential penalty of 10-20 years in prison. A Second degree crime carries a potential penalty of 5-10 years. Defendants who are convicted of first and second degree crimes face a presumptive term of incarceration. It is assumed that they will be sentenced to serve time in prison. A Third degree crime may result in 3-5 years if convicted, while Fourth degree crimes carry a potential penalty of up to 18 months in jail. There is a presumption of non-custodial sentences on 3rd and 4th degree offenses.

Complaints heard in municipal courts are "disorderly persons" offenses or "petty disorderly persons" violations, which carry less restrictive punishments upon conviction. Disorderly persons offenses may be sentenced to up to 6 months in a county jail. Petty disorderly convictions may render up to 30 days in jail.

First Appearance

Once a complaint is issued, defendants are either arrested or issued a summons or notice to appear in municipal or Superior Court on a first appearance. If they fail to appear, a warrant may be issued for the accused's arrest by a judge if there is proof of service, or evidence that the accused received the summons or notice and failed to appear. At the first court appearance, defendants are advised of their rights. Their bail is reviewed.

Right To Counsel

At their first appearance defendants are advised of their right to counsel. This means that they are entitled to have an attorney represent them and answer the charges.

In making indigence determinations, Criminal Division staff consider defendants' ability to post bail, the amount of bail posted, the willingness of friends and family members to pay for an attorney, and any factor related to a defendant's claim of impoverishment. They review tax returns, credit and wage records and any other relevant information regarding the ability of defendants to hire their own attorneys.

Pre-Indictment Events Following the filing of a complaint and the first court appearance, the prosecutor's office in each county determines whether to pursue a criminal complaint. Prosecutors determine if cases have merit and sufficient evidence to pursue a conviction. In most counties, the prosecutor's Case Screening Unit reviews police reports and interviews victims and witnesses to determine if the original charges will be prosecuted. If there is insufficient evidence, the charges are downgraded to disorderly persons offenses and "remanded" or sent to the municipal courts for a hearing or dismissed. In some counties, prosecutors pre-screen potential Superior Court filings before a complaint is signed.

The Grand Jury

If a criminal case has not been, downgraded, diverted or dismissed, the prosecutor will present the case to a grand jury for an indictment. The grand jury is composed of a group of citizens who have been selected from voter registration, drivers license and tax lists. The grand jury considers evidence presented by the county prosecutor and determines if there is sufficient evidence to formally charge defendants and require them to respond to the charge(s). An indictment is not a finding of guilt. Generally, neither the accused nor their attorneys are present. Witnesses normally testify regarding the crime. After considering evidence, if a majority of the 23 jurors vote to indict defendants, they must face further criminal proceedings. The return of an indictment is called a true bill. If a majority finds the evidence to be insufficient to indict, the grand jury enters a no bill and the charge(s) are dismissed. The jury may, however, decide to charge defendants with a less serious offense, to be downgraded or remanded to the municipal court. The accused must appear in municipal court to face a disorderly persons or petty disorderly persons charge.

The Indictment Process The grand jury will consider evidence presented by the county prosecutor and determine if there is sufficient evidence to formally charge the defendant and oblige him to respond to the charge(s). The indictment is not a finding of guilt or a conviction. The finding is a true bill that triggers further proceedings in the Criminal Superior Court. If a majority finds the evidence to be insufficient to indict, the grand jury enters a no bill and the charge(s) are dismissed. The jury may, however, decide to charge the defendant with a less serious offense, to be heard in municipal court. In this instance, the offense has been downgraded or remanded. The accused must appear in municipal court to face a disorderly persons or petty disorderly persons charge.

The Pre-Arraignment Conference and The Arraignment

Within twenty-one days of the return of an indictment, a pre-arraignment conference is held. This pre-arraignment conference is scheduled by Criminal Division Staff. Defendants may wish to apply for public defender representation at this point if they are not yet represented. Prior to this conference, discovery or evidence is available to defense counsel. This exchange of evidence provides the defense with an opportunity to review the evidence the prosecution intends to use against the accused prior to the conference. After reviewing the discovery provided prior to the pre arraignment conference, defendants may decide to apply for Pretrial Intervention, or to enter plea bargain negotiations. Defendants may also indicate their intention to plead guilty to the charge for which they were indicted.

Arraignment/Status Conference Standards

A formal arraignment occurs no later than 50 days after an indictment. Upon notification by the Criminal Division, defendants must appear and face formal notification of their charges. They may plead guilty at this point, either to the charges listed in the indictment, or to revised charges resulting from plea negotiations. If plea negotiations are ongoing, the parties may review the status of the plea offer. Defendants may also opt to apply for the Pretrial Intervention program at this juncture, or be admitted into the program if they have not applied prior to arraignment. If a guilty plea is entered at the formal arraignment, Criminal Division judges order a presentence investigation to be conducted by Criminal Division case supervisors. Sentencing will follow the presentence investigation, generally 4 to 6 weeks after convictions. Status Conferences and the Pretrial Conference

Defendants who have pleaded not guilty at this point may continue plea negotiations or preparation for trial. Pretrial case resolutions may occur at a status conference, where a defendant may decide to enter a guilty plea with or without a negotiated plea bargain.

At Pretrial Conferences, defendants may enter a guilty plea to the charges. At the Pretrial Conference, there is a plea cutoff date, after which no further plea negotiations can occur. If no agreement to plead guilty is reached, the matter will proceed to trial. Criminal Division staff track conferences to ensure that cases are moving without undue delays. The Administrative Office of the Courts evaluates statistics entered by Criminal Division staff in each criminal court to stay abreast of overall case movements statewide. The Criminal Practice Division assists local court staff to address backlogs if they should occur.

Conclusion It is well established that the prosecution of a defendant is a criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges. Criminal offenses carry substantial penalties which will effect you for the rest of your life. The space limits of this article do not allow detailed explanation of the extensive caselaw on criminal offenses. Other defenses are explained in greater details in other articles on www.njlaws.com.

Call Kenneth Vercammen and issue for a confidential consultation.

About the Author Kenneth A. Vercammen is a trial attorney in Edison, Middlesex County, New Jersey. He often lectures for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College on personal injury, criminal / municipal court law, and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges. In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, matrimonial hearings, and contested administrative law hearings. 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 Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA. KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030