When you are facing a criminal charge in New Jersey, it can be scary and intimidating. But knowing what to expect throughout the entire criminal process can help you prepare for what's to come and help you aid your attorney in your defense.
New Jersey Courts
The New Jersey Superior Courts handle serious criminal offenses, known as indictable offenses or felonies. The municipal courts handle less serious crimes or misdemeanors. In New Jersey, these misdemeanors are called disorderly persons offenses or petty disorderly persons offenses.
When the police first arrest you, the officer will run your name through the New Jersey State Police database. The officer will be looking for any open matters, warrants for your arrest, and criminal history. The police will then typically take you to the police station and fingerprint you. Law enforcement officers will enter your fingerprints into the system and obtain your State Bureau Identification (SBI) number if you have a prior criminal history in New Jersey. We often call this process, "booking."
A law enforcement officer must base an arrest on "probable cause," meaning there are reasonable grounds to believe the defendant may have committed an offense. In more basic terms, probable cause means a law enforcement officer reasonably believes that you're doing something illegal. But once an officer has probable cause, they can search or detain you. Without probable cause, your search and detention or arrest are not lawful.
Probable cause is essential when:
- An officer is going to arrest you;
- An officer is about to pull you over while you're driving;
- An officer stops you on the street and searches you;
- An officer searches your vehicle after a stop; or
- The police want to search your home.
If the police didn't have probable cause, then anything discovered in that search can't be used against you at trial. The court will throw it out at trial.
Intake and the Criminal Complaint
Once arrested and charged with a crime, law enforcement will then give you a "criminal complaint." A criminal charge results from one of the following:
- Formal Complaint: A formal complaint originates from a law enforcement agent or an individual who believes the defendant committed an offense against their person or property.
- Grand Jury Indictment: A criminal indictment can also begin a criminal case when a grand jury issues an indictment. A grand jury is a panel of New Jersey citizens gathered together to hear evidence.
The criminal complaint states the charges and relates them to offenses from the New Jersey Code of Criminal Justice. See N.J.C.S. 2C. The New Jersey Code classifies crimes by degrees, ranging from first to fourth:
- First Degree Indictable Offense: Carries the potential penalty of ten to 20 years in prison.
- Second Degree Indictable Offense: Carries the potential penalty of five to ten years in prison.
- Third Degree Indictable Offense: Carries the potential penalty of three to five years in prison.
- Fourth Degree Indictable Offence: Carries the potential penalty of up to 18 months in jail.
For first- and second-degree offenses, there is a presumptive term of incarceration. For third and fourth-degree offenses, there is a presumption of a non-custodial sentence.
First Appearance and Setting Conditions of Pre-trial Release
After the county prosecutor's office issues a complaint, or the Office of the Attorney General in other instances, police will arrest the defendant, or the court will issue a summons to appear in municipal court or Superior Court for the defendant's first appearance before the judge. For defendants arrested on a complaint-warrant, the court must hold the first appearance within 48 hours of the defendant's arrest and detention in county jail.
During the first appearance, the judge will set conditions for pretrial release if the defendant is eligible. These conditions may include:
- No new criminal activity;
- No contact with the victim;
- Avoiding contact with witnesses; and
- Complying with any reporting requirements the court imposes.
If the defendant doesn't appear for the first appearance, the judge may issue an arrest warrant.
Bail, Bonds, and Personal Recognizance
At the first appearance, the judge may set bail. Bail allows the defendant to deposit funds or property in exchange for a promise to appear in court in the future. If the defendant posts bail, they are released until the court resolves the charges. The court may also require a personal bond from some defendants, requiring them to appear in court of forfeit a specified amount of money.
If the defendant has significant ties to the community and no criminal history, the court may order them released on their own recognizance. A Release on Own Recognizance is an affidavit certifying the defendant is aware of the charges against them and will appear in court to face the charges.
When the court sets bail, the judge may also order a bail investigation. This investigation collects information on the defendant's community ties, standing in the community, personal information, employment record, and mental health and drug abuse history. The judge will consider the defendant's probability of appearing in court for trial and hearings, as well as the bail investigation report.
Defendant's Right to Counsel
At the first appearance, the court will advise the defendant of their right to counsel. This right means that all defendants are entitled to have an attorney represent them in court on the charges at hand. If a defendant cannot afford an attorney, the criminal division staff will investigate whether the defendant is indigent. This investigation considers the defendant's assets, liabilities, tax returns, credit and wage records, and other relevant financial information.
If the court deems the defendant indigent, the court will appoint a public defender or an attorney from a pool of private attorneys taking indigent cases. If the judge determines that the defendant does have the means to pay a private attorney, they may deny the application. The judge may order the defendant to hire an attorney, allow the defendant to represent themselves, or order the defendant to consult an attorney who may take a discounted rate.
After the first appearance, the prosecutor's office will determine whether to pursue the case. The prosecutor looks at the merits of the case and whether there is enough evidence to make a conviction possible. The prosecutor will make this determination by reviewing police reports and witness statements and interviewing witnesses.
If the prosecutor believes the evidence is insufficient, they may reduce the charges to a disorderly persons offense or remand the matter back to the municipal court for dismissal.
Substance Abuse Evaluations
Many people charged with criminal offenses in New Jersey were under the influence of drugs during the crime. According to federal estimates, this number may be as high as 70% of all people charged with serious crimes. Before trial, a substance abuse evaluator will interview the defendant if they face drug and property crimes. The purpose of the interview is to determine the defendant's involvement with drugs. The substance abuse evaluator will work with treatment assessment services for the courts' criminal division and interview defendants, screen them for current drug use, and prepare an assessment report for the judge.
The drug assessment report may recommend counseling for drug or alcohol abuse if the defendant needs support to overcome addiction. The judge will use the report to determine appropriate community support for defendants released from jail. In some cases, defendants with severe addictions must choose between jail and community drug treatment arranged by the courts.
Before trial, the prosecutor and defense attorney can negotiate a plea bargain. A plea agreement offers the defendant a reduced term in prison or on probation in exchange for a guilty plea. If the defendant wants to enter a plea bargain, the prosecutor and defense attorney will coordinate a date for a hearing with the court. The defendant must sign a statement certifying that they agree to the plea and are entering the agreement without pressure from the prosecutor or their attorney.
In court, the parties will enter the plea on the record. However, if the judge determines that the sentence is too lenient, they may reject the plea bargain and set the matter for trial. When a defendant enters a plea bargain, they will still be subject to a presentence investigation.
Pretrial Intervention (PTI) Program
Pretrial intervention is a diversion program typically available for indictable or felony offenders with no prior criminal history, although violent crimes generally are not eligible. PTI is an alternative to prison and also acts as a probationary. The PTI program can also help an offender receive needed services like counseling or drug and alcohol treatment. The objective of the program is to give an incentive for first-time offenders to rehabilitate. The criminal division managers run the PTI program.
Once a defendant applies, probation officers conduct investigations to determine whether to recommend admittance to the program. Admission to PTI typically requires permission from the prosecutor, the criminal division manager, and the judge. After an offender completes the program, law enforcement will dismiss the charges.
Conditions for Participation in PTI
If the court accepts the defendant into the PTI program, a judge can postpone court actions for up to three years. The defendant must still pay mandatory penalties, and the court may still require that the defendant pay additional penalties and fees.
The court assigns a probation officer to the defendant's case and sets conditions for release, such as:
- Drug screening;
- Community service;
- Mental health screening;
- Drug and alcohol evaluations; and
- Other treatment recommendations.
If the defendant doesn't meet the court's conditions for PTI, the court will remove the defendant from the program, and the prosecutor will resume the prosecution of the case.
Eligibility for PTI
Defendants are not eligible for PTI if:
- The defendant previously enrolled in PTI for another offense;
- The defendant previously enrolled in the conditional discharge or conditional dismissal programs;
- The defendant had charges dismissed through the Veterans Diversion Program in the past;
- The defendant was in a diversion program in another state or federal court for an indictable offense or a felony;
- The defendant currently faces a disorderly persons, petty disorderly persons, misdemeanor, or other non-criminal charges unless the offense involves domestic violence.
The prosecutor must agree to the defendant's participation in PTI if:
- The defendant faces a charge for a crime with a jail sentence or mandatory minimum period of parole ineligibility;
- The defendant has a prior conviction for an indictable offense in New Jersey;
- The defendant has an earlier conviction for an identical crime in another state or federal court.
- If any of these situations apply to the defendant, they must attach a written statement to the PTI application explaining why they think they are a good candidate for the program. The prosecutor must agree to consider it before the court will.
The court will probably deny the defendant's PTI application if:
- The defendant was a public employee or public officer, and the charged crime involves their employment or office; or
- The defendant faces a domestic violence charge that involved violence or the threat of violence or occurred while the defendant was under a restraining order.
Grand Jury and Indictment
If, at this point, the court and prosecutor have not downgraded, diverted, or dismissed the case, the prosecutor will present the case to a grand jury. A grand jury is a group of New Jersey citizens selected from voter registration, driver's licenses, and tax rolls. Jury duty and grand jury duty are civic responsibilities of all New Jersey citizens.
The grand jury will consider evidence from the prosecutor and determine if there is enough evidence to charge the defendant. Evidence presented may include witness testimony. This determination is called an indictment. An indictment is not a guilty verdict, and the defendant and their attorney are not present and do not present a defense.
After considering the prosecutor's evidence, the grand jury will deliberate. If a majority of the 23 jurors vote to indict, the defendant will face further proceedings on the charges. If a majority doesn't find the evidence sufficient to indict, the grand jury will enter a "no bill," and the prosecutor will dismiss the charges. The grand jury can also choose to indict the defendant on a less serious charge. If the grand jury downgrades the indictment to a disorderly persons or petty disorderly persons offense, the case will return to the municipal court for further proceedings on those charges.
The formal notification of charges against the defendant is known as the arraignment. The arraignment takes place within 14 days of the grand jury's indictment. The criminal division will notify the defendant, who must appear before the judge for the arraignment. If the defendant still doesn't have an attorney, they can request a public defender at this time.
Before the arraignment occurs, the prosecutor will present defense counsel with the prosecutor's evidence against the defendant. The defendant's attorney may also use the discovery process to request additional information and evidence from the prosecutor. After reviewing the evidence, the defendant may decide to negotiate a plea bargain or apply for the Pretrial Intervention Program.
At the arraignment, the defendant can also enter a guilty plea. If the defendant pleads guilty, the court will order a presentence investigation by the criminal division probation officers. Sentencing will typically happen about four to six weeks after the guilty plea, once the sentencing report is complete.
Disposition or Status Conference and Pre-trial Conference
At disposition or status conferences, the parties may resolve pretrial matters like admissibility of evidence or other matters. Pretrial case negotiations can still happen during this time, and the defendant can plead guilty at this time as well. At the pretrial conference, the court sets a plea cutoff date, after which the parties can't engage in any more plea negotiations. If the parties haven't reached a plea agreement, the matter will continue to trial.
New Jersey Trials
Criminal Detention Limitations
New Jersey law requires speedy trials. As a result, there are deadlines to bring a case to indictment and trial. Before an indictment, the defendant can't remain in jail for more than 90 days. After an indictment, defendants can't remain in jail more than 180 days before their trial starts. Defendants can remain in jail pending indictment or trial for "excludable time." Excludable time isn't counted toward the defendant's 90 or 180 day jail time limits and includes additional time for things like a judge disqualification or refusal, medical exams, or supervisory drug treatment.
Eligible defendant subject to pretrial detention, release; conditions.
(1) (a) The eligible defendant shall not remain detained in jail for more than 90 days, not counting excludable time for reasonable delays as set forth in subsection b. of this section, prior to the return of an indictment.
b. (1) The following periods shall be excluded in computing the time in which a case shall be indicted or tried:
(a) The time resulting from an examination and hearing on competency and the period during which the eligible defendant is incompetent to stand trial or incapacitated;
(b) The time from the filing to the disposition of an eligible defendant's application for supervisory treatment pursuant to N.J.S.2C:36A-1 or N.J.S.2C:43-12 et seq., special probation pursuant to N.J.S.2C:35-14, drug or alcohol treatment as a condition of probation pursuant to N.J.S.2C:45-1, or other pretrial treatment or supervisory program;
(c) The time from the filing to the final disposition of a motion made before trial by the prosecutor or the eligible defendant;
(d) The time resulting from a continuance granted, in the court's discretion, at the eligible defendant's request or at the request of both the eligible defendant and the prosecutor;
(e) The time resulting from the detention of an eligible defendant in another jurisdiction provided the prosecutor has been diligent and has made reasonable efforts to obtain the eligible defendant's presence;
(f) The time resulting from exceptional circumstances including, but not limited to, a natural disaster, the unavoidable unavailability of an eligible defendant, material witness or other evidence, when there is a reasonable expectation that the eligible defendant, witness or evidence will become available in the near future;
(g) On motion of the prosecutor, the delay resulting when the court finds that the case is complex due to the number of defendants or the nature of the prosecution;
(h) The time resulting from a severance of codefendants when that severance permits only one trial to commence within the time period for trial set forth in this section;
(i) The time resulting from an eligible defendant's failure to appear for a court proceeding;
(j) The time resulting from a disqualification or recusal of a judge;
(k) The time resulting from a failure by the eligible defendant to provide timely and complete discovery;
(l) The time for other periods of delay not specifically enumerated if the court finds good cause for the delay; and
(m) Any other time otherwise required by statute.
(2) The failure by the prosecutor to provide timely and complete discovery shall not be considered excludable time unless the discovery only became available after the time set for discovery.
N.J.S.A. 2A:162-22 (2016).
Trial by Judge or Jury
While defendants are entitled to a jury trial, they may also choose to have a trial by a judge in Superior Court. In a criminal trial, the prosecutor tries to prove the state's case against the defendant. An attorney typically represents the defendant. The judge oversees the proceedings and ensures the trial complies with New Jersey's laws and the court's rules.
In a criminal trial by jury, there are 12 jurors pulled from voter registration, driver's licenses, and tax rolls. The jury's role is to hear the evidence presented by both the prosecutor and the defense attorney through witness testimony. The trial will typically follow the following procedure:
- The prosecutor and the defense attorney each present their opening arguments with a summary of what they will show them during the trial;
- The prosecutor presents evidence that the defendant committed the crime;
- The defense lawyer presents evidence that the defendant did not commit the crime;
- Each party has an opportunity to question the other's witnesses and rebut the other's case;
- Each attorney gives a closing argument summarizing what they showed during the trial.
Once the presentation of evidence is complete, the jury deliberates privately. If the jurors unanimously believe that the defendant committed the crime "beyond a reasonable doubt," then they vote to convict. If the jurors can't unanimously agree whether the defendant is guilty or not guilty, the judge can declare a mistrial and hold another trial with new jurors.
If the judge or jury acquits the defendant, they have no further obligation to the court unless charged with new offenses. The prosecutor may not appeal an acquittal, and the U.S. Constitution prohibits double jeopardy or making a defendant stand trial for the same crime twice.
If the judge or jury finds the defendant guilty, the defendant will later face sentencing. The judge will order a presentence investigation by the criminal division and set a date for sentencing.
Presentence Investigation Reports and Sentencing
Probation officers from the criminal division of the Superior Court conduct presentence investigations and produce reports. The presentence investigation report helps the judge weigh the defendant's criminal and juvenile record and life situation with the severity of the crime and possible sentence. The presentence investigation report recommendations don't bind judges, but the reports provide insight and support.
Investigators will provide the court with a report including:
- An assessment of the defendant's overall family;
- The defendant's medical background;
- The defendant's criminal and juvenile history;
- The circumstances of the defendant's offenses;
- Statements from the victims and their families;
- An assessment of the defendant's drug abuse history;
- The defendant's amenability to probation supervision and treatment;
- The defendant's financial situation; and
- A recommendation for prison or probation.
In determining the sentence, the judge will typically consider:
- The presentencing investigation report recommendations and findings;
- The degree of harm and hardship imposed on the victims and their families;
- Mitigating factors explaining the crime;
- The defendant's past or present circumstances;
- Any aggravating factors that speak to the severity of the crime; and
- Prior criminal record.
The defendant's prior criminal record weighs heavily in the sentencing analysis because it indicates the defendant's potential for rehabilitation or recidivism. In many cases, the sentencing judge will have some discretion in the sentence's length, based on the New Jersey criminal code's limitations. If the defendant entered into a plea agreement with a sentencing recommendation, the judge's discretion is limited. Some crimes, such as using a gun during a robbery, have mandatory minimum sentencing terms, and the judge must sentence the defendant to at least the minimum term.
If the judge or jury convicts the defendant, the defendant can appeal to the Appellate Division of the Superior Court. This appeals court reviews trial transcripts, records, and evidence to determine if the trial judge's decisions in the Superior Court were fair and equitable. The defendant can also file motions with the sentencing judge to modify the sentence or request other relief.
Municipal Court Criminal Process
In New Jersey, there are both municipal and superior court systems. We often call Superior Court the "trial court" because this is where most civil and major criminal trials take place in the New Jersey criminal justice system. The Superior Courts handle serious crimes, called indictable offenses. These crimes are often called felonies in other states and can include robbery, sexual assault, and murder.
The New Jersey Municipal Court, however, decides the vast majority of New Jersey criminal cases. These courts hear motor vehicle offenses such as driving under the influence, speeding, or parking tickets. But the Municipal Courts also hear cases involving minor crimes, called disorderly persons offenses, such as simple assault, shoplifting, and trespassing. Disorderly persons offenses have lighter penalties and no presumption of jail time.
- Disorderly persons offenses: Carry the penalty of up to six months in jail.
- Petty disorderly persons offenses: Carry the possible penalty of up to 30 days in jail.
Municipal Court judges handle criminal trials in much the same way as Superior Court judges. However, courts don't typically order defendants held in jail pending indictment or trial. Before trial, your attorney may make motions to suppress or exclude evidence or witnesses just as they can in superior court trials.
If your charge involves harm to another person, the court may order you to participate in discussions with a mediator to attempt to settle the dispute before appearing in front of the judge. You can also request mediation, and the court will determine if you are eligible.
After your trial, if you disagree with the court's decision, you can appeal to the county superior court. This appeal will not involve a new trial. Instead, the superior court will review the municipal court trial transcript and the judge's decision. The superior court will only reverse the municipal court judge's decision if they made a mistake concerning the facts of the case or applying the law to those facts.
You must file your appeal within 20 days of your decision in the municipal court, and the Court Administrator will provide the appeal form upon request. Your appeal requires a filing fee and a deposit for the preparation of the trial transcript. The costs for the transcript will vary depending on the length of your original trial. In your appeal, you may request that the superior court stay or set aside your penalty pending the outcome of your appeal.
Do I Need an Attorney?
Criminal charges, particularly indictable offenses, can result in fines, penalties, and time in prison. While you can represent yourself, the criminal justice system can be nearly impossible to navigate successfully on your own. You need a skilled criminal defense attorney. Attorney Joseph D. Lento has years of experience defending New Jersey citizens in Superior and Municipal Court actions all over the state. Call the Lento Law Firm at (888) 535-3686 or contact them online for the help you need.