Frequently Asked Question About the Criminal Justice System
in the State of New Jersey
by Ravinder S. Bhalla, Esq.
In my years as a practicing criminal defense attorney, I have learned that clients often have basic concerns about charges that may be pending, the criminal process generally, and the legal options available to defend against criminal charges. The questions, “What are my options?” and “What can I expect” and probably the most commonly asked. The following questions and answers are designed to address some of these concerns by providing the reader with basic educational information about the criminal justice system in New Jersey. The questions and answers are straightforward, easy to understand and intended to provide ordinary citizens with basic information about criminal law in New Jersey.*
1. How can someone be charged with a crime?
2. What is an arraignment?
3. What is a grand jury?
4. What is an indictment?
5. What offenses constitute a crime in New Jersey?
6. What is discovery?
7. What is a “plea”?
8. What is a plea offer?
9. What are plea negotiations?
10. What is PTI?
11. What is a “conditional discharge” or a CD?
12. Is a disorderly persons offense a “crime”?
13. Will I have a record if I am convicted of a disorderly persons offense?
14. What is an expungement and how do I obtain one?
How can someone be charged with a crime?
In New Jersey state courts, a criminal proceeding is usually initiated by the issuance of a criminal complaint. A person may also be charged through an indictment. The criminal complaint will set forth the name of the defendant, the offense or offenses he or she is charged with, and a brief description of the factual basis for the issuance of the criminal complaint. The criminal complaint, once served upon a defendant, will also state a time and date to at which the defendant must appear before the court for an arraignment.
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What is an arraignment?
An arraignment is the first step in the criminal process. It is a proceeding where a defendant appears in court to be formally charged with an offense and enter a plea. A defendant will typically enter a plea of “not guilty” at an arraignment. An arraignment can occur after a defendant is served with a criminal complaint, or after a defendant is served with an indictment.
In New Jersey state courts, prior to or on the date of an individual’s arraignment on an indictment, the State will often provide discovery to counsel for the defendant, and extend a plea offer to the defendant.
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What is a grand jury?
A grand jury is a collection of 23 members of the community selected from voter registration, drivers license, and tax lists in the county in which the case is proceeding. The function of a grand jury is to hear a presentation of facts from the government and determine whether probable cause exists to conclude that a crime has occurred, and authorize the government to commence formal criminal proceedings against an individual.
There are several aspects of grand jury proceedings that are disadvantageous to a individual that is the subject of a grand jury proceeding. The proceedings are held in secret. Hearsay evidence, normally not admissible at a trial, is admissible at a grand jury proceeding. The burden of proof on the government to establish that a crime occurred is much lower than the standard at trial. Both the individual that is the subject of the grand jury proceeding and his or her defense attorney are not permitted to be present or participate in grand jury proceedings. Consequently, the individual to be charged and his or her defense attorney may not hear testimony of witnesses or cross-examine witnesses at the proceeding. Finally, only a majority of grand jurors, not all of 23 of them, must find that there is sufficient evidence to allow the government to proceed with formal charges. All of these circumstances have lead to the common refrain that indicting an individual is as easy for the government as indicting a ham sandwich.
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What is an indictment?
An indictment is a document that is issued by a grand jury after they have concluded that there exists sufficient evidence to authorize the government to proceed with formal charges against a defendant. An indictment is nothing more than a piece of paper explaining the allegations against a defendant.
An indictment will specify what offense(s) an individual is charged with, and contain a brief description of the factual basis for the allegations against the defendant. An indictment is not evidence of wrongdoing, and a defendant enjoys a presumption of innocence after the indictment is issued and at every stage of criminal proceedings thereafter. In reality, however, there is a common perception in society that if a person is indicted, they must be guilty of something. This perception, unfortunately, often results in the presumption of innocence being relegated to a nothing more than a legal theory. Nonetheless, a defendant has no legal obligation prove his innocence, and the burden of proof rests squarely upon the government to prove beyond a reasonable doubt that a person charged with an offense is in fact guilty of that offense.
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What offenses constitute a crime in New Jersey?
Any indictable offense is a crime in New Jersey and as such, the government must first present the factual basis for these types of charges to a grand jury which will determine whether there is sufficient evidence to allow the government to continue its prosecution.
In New Jersey, there are four “degrees” of offenses: 1st degree offenses, 2nd degree offenses, 3rd degree offenses, and 4th degree offenses. 1st degree offenses are the most serious and are punishable by a state prison term of 10-20 years upon conviction. 2nd degree offenses are punishable by a term of 5-10 years in state prison. 3rd degree offenses are punishable by a state prison term of 3-5 years in state prison. 4th degree offenses are punishable by a state prison term of up to 18 months in state prison.
Although these sentencing ranges may seem harsh, there are several points to consider. First time offenders charged with 3rd or 4th degree offenses enjoy what is known as a “presumption against incarceration”. This means that it is presumed that a defendant convicted of a 3rd or 4th degree offense will almost certainly not receive a sentence that carries a term of imprisonment, unless a judge is satisfied that there are aggravating factors that greatly outweigh mitigating factors and require a custodial sentence. In the absence of such circumstances, sentences for first time offenders charged with 3rd of 4th degree offenses are typically limited to fines, probation and other mandatory court costs.
Additionally, even if an individual is sentenced to a “flat” prison term, he or she will become eligible for release on parole after serving 1/3 of the prison term. For example, if a person is convicted of a 2nd degree offense and is sentenced to 9 years in state prison, he or she will be eligible for parole and may be released on parole after serving only 3 years of the prison term. It is important to note, however, that such parole eligibility does not apply to certain crimes that fall under the No Early Release Act (NERA). Under NERA, individuals convicted of a NERA offense must serve at least 85% of their term before becoming eligible for parole.
Lastly, serious crimes that fall in the 1st or 2nd degree range are often, through the plea negotiation process and with the assistance of competent counsel, negotiated down and eventually amended to lesser included offenses that fall in the 3rd or 4th degree range, or even a disorderly persons offense. For example, a person indicted for 1st degree armed robbery may, at the outset of the proceedings, face a prison term of 20-30 years. However, if the government’s proofs are weak or if the government confronts other problems with the case, such an offense may be pled down and amended to 3rd degree theft. In some instances a 1st degree charge in an indictment can be negotiated as far down to disorderly persons offenses, or even dismissed.
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What is discovery?
The term “discovery” is used to describe a wide variety of items, including documents, police reports, witness statements, audio and video recordings, physical items, that may either constitute admissible evidence at trial or may otherwise be relevant to a criminal prosecution. As both the government and an individual charged with a crime may be in possession of discovery, the court rules in New Jersey place a joint obligation on both sides to provide discovery at the outset of a criminal proceeding. The State also has an obligation to provide any information to a defendant that may be exculpatory in nature.
The purpose of discovery is to allow both parties to review, in advance of a trial, what information exists which may impact the eventual outcome of a matter, thereby allowing the parties to assess the relative strengths and weaknesses of their positions, enter into plea negotiations, and possibly resolve the matter through a plea agreement instead of a jury trial. Another purpose of discovery is to avoid “trial by surprise” by permitting an individual defendant to know what information may be introduced as evidence at trial and prepare a defense in advance of trial.
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What is a “plea”?
A plea is a statement in court, made by a defendant, in response to a criminal accusation. Typically, a defendant will initially enter a plea of “not guilty” at the outset of a criminal proceeding. Over the course of the proceedings and during plea negotiations, a defendant is provided an opportunity, if he so chooses, to change his plea from not guilty, to guilty.
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What is a plea offer?
A plea offer is an offer that can be made by either a defendant or the government, wherein the defendant agrees to plead guilty to an offense based upon certain conditions that are negotiated in advance by the parties. For example, a defendant may be charged in an indictment with three separate offenses, drug possession, possession with intent to distribute, and drug possession within 1000 feet of a school. Over the course of the case, the government may extend a plea offer requiring the defendant to plead guilty to one of the offenses, in exchange for recommending that the Court dismiss the other two offenses, and further recommending that the Court impose a certain sentence, such as probation. In this example, other conditions of a plea may also be subject to negotiation, such as mandatory urine monitoring or outpatient drug counseling. Another common subject of a plea offers in multi-defendant cases is whether a defendant is willing to provide truthful testimony relating to the culpability of other co-defendants, should they exercise their right to a jury trial.
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What are plea negotiations?
Once a plea offer is extended, the process of plea negotiations commence. A number of events or circumstances may impact the course of plea negotiations. For example, a defendant, through his legal team, may strengthen his or her position in a criminal proceeding by conducting his or her own investigation through interviewing witnesses, retaining experts to review and challenge forensic evidence offered by the government, or filing motions to dismiss counts in the indictment or suppress evidence that may be offered at trial. Other circumstances that may impact plea negotiations are the prior criminal history, if any, of the defendant, the extent of cooperation the government receives from the “victim” and/or witnesses central to its case, and whether restitution has or will be paid to the victim, where applicable.
The culmination of plea negotiations is the execution of a plea agreement between the government and the defendant. The agreement will specify which offense(s) the defendant will plead guilty to, which offense(s) the government will move to dismiss, and what sentence the government will recommend at sentencing. By pleading guilty to a crime, a defendant concedes a number of rights, such as the right to remain silent, the right to a jury trial, and the right to confront or cross-examine witnesses against the defendant.
A judge is not bound to accept a plea agreement entered between the government and a defendant. For example, a judge must be satisfied that that a defendant is admitting guilty to a certain offense because he is in fact guilty of that offense. A judge must also be satisfied that a defendant is voluntarily pleading guilty, is not pleading guilty as a result of threats or coercion, and is satisfied with the services and advice of his or her attorney. These facts and circumstances are established by placing a defendant under oath and eliciting facts from the defendant that would meet the legal elements of an offense.
Even if a judge is satisfied that all of the above requirements have been met, a Court is not bound by a plea agreement negotiated between the parties, and at sentencing he or she may still impose a sentence that is more (or less) severe than the recommendation of the government. In New Jersey, if the Court imposes a more severe sentence than provided for in the plea agreement, then a defendant is entitled to take back or withdraw his plea. If a defendant retracts his plea under these circumstances, any statements he or she made in connection with the guilty plea may not be used against him or her at trial.
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What is PTI?
PTI stands for Pretrial Intervention. PTI is a diversionary program that allows certain defendants to avoid formal criminal proceedings if admitted to the program. The judge sets the term an individual’s enrollment in PTI, which can be for up to 3 years. In order to gain admission to the PTI program, a defendant must obtain the consent of the government, the criminal division manager, and approval by a judge. A judge can set certain conditions upon a defendant’s entry into PTI, such as random urine monitoring, counseling, or payment of fines. PTI is an attractive option for an individual charged with an indictable offense because upon successful completion of PTI, the charges are dismissed. However, if a defendant violates the terms of PTI, he or she can be terminated from the program and the original charges may be resumed through the formal criminal process.
There are eligibility limitations on the PTI program. Defendants with a prior criminal history of convictions are generally not eligible. An individual may not be admitted to PTI more than once. Defendants charged with violent offenses are generally not admitted. PTI is usually only available for persons charged with 3rd or 4th degree offenses. If you are charged with a 1st or 2nd agree offense, you are most likely not eligible and usually must first obtain permission from the government to apply to the program. Finally, PTI is an option for persons charged with indictable offenses that are heard in Superior Court. PTI is not an option for a person charged with an offense that his heard in municipal court.
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What is a “conditional discharge” or a CD?
Like PTI, obtaining a conditional discharge is an attractive option for an individual charged with a drug offense in a municipal court in New Jersey. Municipal courts in New Jersey have jurisdiction to hear drug offenses that are not indictable, but are graded as disorderly persons offenses. Such offenses include possession of 50 grams or less of marijuana or 5 grams of less of hashish; using or being under the influence of a controlled dangerous substance (CDS); failure to deliver CDS to a law enforcement official; and possession of drug paraphernalia. An individual is only eligible for a CD if he or she has not been previously been granted PTI in Superior Court or CD a municipal court.
An individual who is granted a conditional discharge must pay mandatory fines and is subject to a driver’s license suspension for between 6 months and 2 years. The conditional discharge period is between 6 months and 2 years. If the defendant violates the terms set by the court in granting a conditional discharge, the government may resume its prosecution of the original charges against the defendant.
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Is a disorderly persons offense a “crime”?
No. Disorderly persons offenses are generally considered “quasi-criminal” in nature, While they are delineated in New Jersey’s Criminal Code and a judge may sentence an individual to prison for as much as 6 months upon conviction of a disorderly persons offense, under the New Jersey Constitution, a disorderly persons offense is not a crime.
Disorderly persons offenses are prosecuted in municipal courts in New Jersey. Since a disorderly persons offense is not an “indictable offense,” the government is not required to present this type of charge to a grand jury, and a trial of a disorderly persons offense is heard by a judge rather than a jury.
There are many categories of offenses that are considered disorderly persons offenses. They include harassment, certain drug charges, and lesser serious versions of other offenses, including stalking, obstruction of administration of justice, resisting arrest, assault, and many others.
Although a disorderly persons offense technically carries a prison term of up to 6 months, in practice it is extremely rare for a court to impose any term of imprisonment in cases involving disorderly persons offenses. Sentences involving disorderly persons offenses are usually limited to fines and probation.
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Will I have a record if I am convicted of a disorderly persons offense?
You will not have a criminal record if you are convicted of a disorderly persons offense by way of a plea or conviction at trial. This is because, as noted above, disorderly persons offenses are not crimes. A conviction of a disorderly persons offense will, however, will create a record in law enforcement database systems. Such a record, even though not criminal in nature, could create problems for individuals seeking employment. One means to avoid this situation is through the negotiation of a plea to a municipal ordinance, which typically would only carry a minor fine and would not produce such a record.
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What is an expungement and how do I obtain one?
An expungement is an administrative mechanism by which a prior criminal conviction is removed from law enforcement records. An expungement is not a pardon, a commutation or a reversal of a criminal conviction. Rather, it is a means for someone convicted of a crime to remove any record of the offense. An expungement can have many benefits, including facilitating the ability of an individual to re-enter the workforce and obtain gainful employment.
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* Disclaimer: The foregoing information does not and should not be construed as providing legal advice. It is intended for solely for educational purposes rather than as a source of legal advice.
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