Everything's legal in New Jersey.
–Hamilton: An American Musical
Despite Hamilton's insistence, everything is not legal in New Jersey, and if you've come up against the state's justice system, you know that well. Fortunately, there are ways you can avoid prison or jail time in favor of rehabilitation. No duel is necessary. In New Jersey, probation is a form of rehabilitation that allows a judge to sentence you for a set period without serving any prison time, as long as you meet certain conditions of release.
If you have gone through the Pretrial Intervention Program or the drug court, your judge may also sentence you to a term of probation rather than jail or prison time. Probation typically requires close supervision by a probation officer, along with several judicially-imposed conditions. If you fail to meet those conditions, you violate your probation, and the judge can revoke your probation and resentence you based on the New Jersey statutory guidelines for your crime.
Statutory Authorization for Probation
New Jersey law specifically allows a judge to suspend your sentence or place you on probation in place of a prison term. The probation period can't exceed the maximum time the judge could have sentenced you to. The judge can change or add to or remove the conditions of your probation at any time. If you fail to meet the requirements of probation, the judge can extend your probation period.
Period of Suspension or Probation; Modification of Conditions; Discharge of Defendant
a. When the court has suspended imposition of sentence or has sentenced a defendant to be placed on probation, the period of the suspension shall be fixed by the court at not to exceed the maximum term which could have been imposed or more than 5 years whichever is lesser. The period of probation shall be fixed by the court at not less than 1 year nor more than 5 years. The court, on application of a probation officer or of the defendant, or on its own motion, may discharge the defendant at any time.
b. During the period of the suspension or probation, the court, on application of a probation officer or of the defendant, or on its own motion, may (1) modify the requirements imposed on the defendants; or (2) add further requirements authorized by N.J.S.2C:45-1. The court shall eliminate any requirement that imposes an unreasonable burden on the defendant.
c. Upon the termination of the period of suspension or probation or the earlier discharge of the defendant, the defendant shall be relieved of any obligations imposed by the order of the court and shall have satisfied his sentence for the offense unless the defendant has failed:
(1) to fulfill conditions imposed pursuant to paragraph b. (11) of N.J.S.2C:45-1, in which event the court may order that the probationary period be extended for an additional period not to exceed that authorized by subsection a. of this section; or
(2) to fulfill the conditions imposed pursuant to subsection c. of N.J.S.2C:45-1, in which event the court shall order that the probationary period be extended for an additional period not to exceed that authorized by subsection a. of this section.
The extension may be entered by the court without the defendant's personal appearance if the defendant agrees to the extension.
Notwithstanding any provision in this section to the contrary, any order of the court prohibiting contact with a victim imposed on a defendant convicted of a sex offense shall continue in effect following the termination of probation supervision until further order of the court.
Conditions of Probation
The judge will usually set several conditions for probation, including:
- Regularly scheduled meetings with a probation officer;
- Wearing a monitoring device;
- Random drug testing;
- Alcohol or drug counseling;
- Anger management counseling;
- Not committing any additional crimes;
- Not getting arrested;
- Not owning or possessing a firearm;
- Staying away from certain people or groups of people;
- Staying in a specific geographic area.
Conditions of Suspension or Probation
New Jersey law permits additional conditions as well. The probation statute states:
a. When the court suspends the imposition of sentence on a person who has been convicted of an offense or sentences him to be placed on probation, it shall attach such reasonable conditions, authorized by this section, as it deems necessary to insure that he will lead a law-abiding life or is likely to assist him to do so. These conditions may be set forth in a set of standardized conditions promulgated by the county probation department and approved by the court.
b. The court, as a condition of its order, may require the defendant:
(1) To support his dependents and meet his family responsibilities;
(2) To find and continue in gainful employment;
(3) To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose;
(4) To pursue a prescribed secular course of study or vocational training;
(5) To attend or reside in a facility established for the instruction, recreation or residence of persons on probation;
(6) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;
(7) Not to have in his possession any firearm or other dangerous weapon unless granted written permission;
(8) (Deleted by amendment)
(9) To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his address or his employment;
(10) To report as directed to the court or the probation officer, to permit the officer to visit his home, and to answer all reasonable inquiries by the probation officer;
(11) To pay a fine;
(12) To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience;
(13) To require the performance of community-related service; and
(14) To be subject to Internet access conditions pursuant to paragraph (2) of subsection d. of this section.
In addition to any condition of probation, the court may enter an order prohibiting a defendant who is convicted of a sex offense from having any contact with the victim including, but not limited to, entering the victim's residence, place of employment or business, or school, and from harassing or stalking the victim or victim's relatives in any way, and may order other protective relief […].
Additionally, the court may require you to pay a fine of not more than $25 a month as a probation condition. However, the court can't revoke or suspend your parole if you fail to pay a fine.
Types of Probation
In New Jersey, there are two types of probation, supervised and unsupervised.
- Unsupervised Probation
The court typically reserves unsupervised probation for disorderly persons offense convictions and cases where the judge grants Pre-trial intervention or a diversion through drug court or another program. However, this probation is not really “unsupervised.” Instead, the court sets regular check-in dates where you will appear in court, and the court can determine if you are complying with the terms of your probation or diversionary program. In some cases, the court will allow you to mail in probation progress reports, but you will need to appear in court in most cases.
- Supervised Probation
If the court assigns you to supervised probation, you will have an appointed probation officer who will follow your progress and ensure that you comply with your terms of probation. Your probation officer may periodically require that you provide evidence that you are participating in counseling, participating in school, or working regularly. Your probation officer may visit your home, your school, or your place of employment, and require you to check in weekly or monthly.
Probation Versus Parole
Parole and probation are both forms of rehabilitation imposed by the court as an alternative to prison or jail. Both parole and probation also require close supervision and express conditions for release. But parole is something that applies to currently incarcerated individuals. The court imposes probation in place of a sentence in jail or prison, but parole is a supervised early release from prison.
A court can also impose a split sentence that imposes a term of incarceration of up to one year, followed by a term of probation. This split sentence probation still includes conditions imposed by the court and close supervision. If you violate probation after serving a split sentence, you will receive credit for time served in jail or prison.
Violations of Probation
If your probation officer believes you've violated your probation terms, they will file a probation complaint with the court that sentenced you. The probation complaint will indicate which conditions the probation officer believes you violated. The court may either send you a summons or issue a warrant for your arrest. Sometimes the same judge that sentenced you will hear the violation case as well.
However, if a probation officer has “reasonable cause” to believe that you violated a condition of your probation, they can arrest you without a warrant. If a probation officer has reasonable cause to believe that you committed another crime, they can arrest you without a warrant and hold you without bail.
Trials for Violation of Probation
If you violate your probation terms in any way, you will have to appear for a violation of probation (VOP) hearing, where the judge can order you incarcerated. If you face a VOP hearing, you should speak with an experienced New Jersey criminal defense attorney immediately.
New Jersey law states:
Summons or arrest of defendant under suspended sentence or on probation; commitment without bail; revocation and resentence
a. At any time before the discharge of the defendant or the termination of the period of suspension or probation:
(1) The court may summon the defendant to appear before it or may issue a warrant for his arrest;
(2) A probation officer or peace officer, upon request of the chief probation officer or otherwise having probable cause to believe that the defendant has failed to comply with a requirement imposed as a condition of the order or that he has committed another offense, may arrest him without a warrant;
(3) The court, if there is probable cause to believe that the defendant has committed another offense or if he has been held to answer therefor, may commit him without bail, pending a determination of the charge by the court having jurisdiction thereof;
(4) The court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or if he has been convicted of another offense, may revoke the suspension or probation and sentence or resentence the defendant, as provided in this section. No revocation of suspension or probation shall be based on failure to pay a fine or make restitution, unless the failure was willful.
b. When the court revokes a suspension or probation, it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted.
c. The commencement of a probation revocation proceeding shall toll the probationary period until termination of such proceedings. In the event that the court does not find a violation of probation, this subsection shall not operate to toll the probationary period.
The VOP trial will happen in two parts. First, the judge will determine whether or not you violated the terms of your probation. If the judge decides you did violate probation, they will determine your sentence for the original crime.
A judge can determine the VOP in one of two ways. You can plead guilty, admitting that you violated the terms of your probation. If you plead guilty, the judge will immediately move to determine your sentence. Or the court can conduct a VOP trial.
At trial, the county prosecutor represents the state, not the probation officer. Both the prosecutor and the defense can introduce evidence and cross-examine witnesses. The judge will be the finder of fact at your VOP trial. You do not have a right to a jury, but the law does entitle you to an attorney at both your VOP trial and VOP sentencing.
While the actual VOP trial is similar to a standard criminal trial, the evidentiary burden of proof during a VOP trial is much lower. Rather than “beyond a reasonable doubt,” the prosecution must only show that you violated your probation terms “by a preponderance of the evidence.” Moreover, during a VOP trial, hearsay is admissible. The judge will only admit hearsay evidence during a standard criminal trial if it meets one of several legally-established exceptions.
Violation of Probation Sentencing
The sentencing phase of a VOP trial usually occurs immediately after the judge determines your guilt. You will be allowed to address the court and can use this opportunity to explain the context or mitigating circumstances of your probation violation. Then, the judge will determine your sentence. They can:
- Terminate your probation;
- Continue your probation;
- Extend your probation;
- Impose new or additional probation conditions; or
- Resentence you completely.
If the judge resentences you, they aren't bound by the terms of any plea deal your lawyer may have negotiated with the prosecutor at your original trial. The new sentence may consist of a term in jail or prison, and you will not receive any “time served” credit for the time you spent on probation.
New Jersey law classifies indictable offenses, similar to felonies, as first, second, third, fourth-degree offenses.
- First Degree Indictable Offense: Potential penalty of ten to 20 years of incarceration.
- Second Degree Indictable Offense: Potential penalty of five to ten years of incarceration.
- Third Degree Indictable Offense: Potential penalty of three to five years of incarceration.
- Fourth Degree Indictable Offence: Potential penalty of up to 18 months incarcerated.
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. However, the judge can sentence you to jail if the prosecutor recommends it.
Disorderly persons offenses, similar to misdemeanors, have lighter penalties and no presumption of jail time.
- Disorderly persons offenses: Carries a maximum penalty of up to six months in jail.
- Petty disorderly persons offenses: Carries a maximum penalty of up to 30 days in jail.
After finding you guilty of a probation violation, the judge can sentence you to any term they might have imposed for your original crime. However, the sentence the judge imposes for your VOP cannot be longer than the statutory sentence for your original crime. For example, if the maximum sentence for your original clime was seven years in prison and the judge initially sentenced you to five years on probation, they can now sentence you to seven years.
Appealing a Determination of Violation of Probation
If you are unhappy with the judge's decision during your VOPtrial, you can appeal the VOPtrial determination, the sentence imposed, or both. You have 45 days to file a Notice of Appeal with the court.
Special Probation for Drug Offenders
In New Jersey, some crimes have a mandatory minimum incarceration period, during which the law does not permit parole. But under New Jersey law, the court may still sentence these defendants to special probation on the motion of a defendant needing drug or alcohol treatment. See N.J.S.A. 2C:35-14(a) (2013). The law states:
Any person who is ineligible for probation due to a conviction for a crime which is subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility may be sentenced to a term of special probation in accordance with this section, and may not apply for drug and alcohol treatment pursuant to N.J.S.2C:45-1. […] Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S.2C:44-1, and except as provided in subsection c. of this section, whenever a drug or alcohol dependent person who is subject to sentencing under this section is convicted of or adjudicated delinquent for an offense, other than one described in subsection b. of this section, the court, upon notice to the prosecutor, may, on motion of the person, or on the court's own motion, place the person on special probation, which shall be for a term of five years, provided that the court finds on the record that:
(1) the person has undergone a professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment; and
(2) the person is a drug or alcohol dependent person within the meaning of N.J.S.2C:35-2 and was drug or alcohol dependent at the time of the commission of the present offense; and
(3) the present offense was committed while the person was under the influence of a controlled dangerous substance, controlled substance analog or alcohol or was committed to acquire property or monies in order to support the person's drug or alcohol dependency; and
(4) substance abuse treatment and monitoring will serve to benefit the person by addressing his drug or alcohol dependency and will thereby reduce the likelihood that the person will thereafter commit another offense; and
(5) the person did not possess a firearm at the time of the present offense and did not possess a firearm at the time of any pending criminal charge; and
(6) the person has not been previously convicted on two or more separate occasions of crimes of the first or second degree, other than those listed in paragraph (7); or the person has not been previously convicted on two or more separate occasions, where one of the offenses is a crime of the third degree, other than crimes defined in N.J.S.2C:35-10, and one of the offenses is a crime of the first or second degree; and
(7) the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States; and
(8) a suitable treatment facility licensed and approved by the Division of Addiction Services in the Department of Human Services is able and has agreed to provide appropriate treatment services in accordance with the requirements of this section; and
(9) no danger to the community will result from the person being placed on special probation pursuant to this section.
New Jersey law also creates a presumption of special probation for specific drug offenders regardless of their request. So, if you commit a drug offense in New Jersey and the court determines that you are “in need of treatment” under this statute, the judge can sentence you to special probation even if your crime is a first or second-degree indictable offense with a presumption of incarceration.
If the court sentences you to special probation, you have mandatory probation conditions to meet as well. You must:
- Enter the treatment facility;
- Complete the program;
- Submit to random drug testing;
- Contribute to the cost of your treatment; and
- Pay all the applicable fines, fees, and restitution; and
- Comply with the other reasonable terms and conditions of your probation.
See N.J.S.A. 2C:35-14.
Violations of Special Probation
If a court determines you violated probation, the court can revoke your special probation. For a second or subsequent VOP, the law states that the court shall revoke your special probation unless they find that you are highly likely to complete your treatment program, and you convince the court that you don't pose a danger to the community.
Upon a second or subsequent violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the person's special probation unless the court finds on the record that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue on special probation, and the court is clearly convinced, considering the nature and seriousness of the violations, that no danger to the community will result from permitting the person to continue on special probation pursuant to this section. The court's determination to permit the person to continue on special probation following a second or subsequent violation pursuant to this paragraph may be appealed by the prosecution.
N.J.S.A. 2C:35-14(f)(2) (2013). If a judge allows you to continue after a second or subsequent probation violation, the prosecutor can appeal the decision.
Indigence and the Public Defender
If you can't afford an attorney, the court's criminal division staff will investigate whether you are indigent. The investigation includes your assets, credit, wages, and any other relevant financial information. If the court decides that you are indigent, the court can appoint a public defender or an attorney from a pool of private attorneys taking indigent clients. Your public defender can represent you during your VOP hearing and sentencing and your appeal if necessary. Unlike a public defender, however, an experienced private probation attorney will often be able to take significant additional steps on a defendant's behalf in working towards a favorable outcome.
New Jersey Probation Resources
New Jersey State Probation Departments are organized by county vicinage and the applicable Probation Department's contact information can be accessed via the foregoing link:
- Atlantic / Cape May
- Cape May
- Monmouth / Sussex
- Cumberland / Gloucester / Salem
- Somerset / Hunterdon / Warren
New Jersey Probation Violation Attorney
If you face a hearing or trial for an alleged probation violation, you need an experienced criminal defense attorney immediately. Judges are typically not lenient with those accused of violating probation terms, and you need someone who will fight for your side. Attorney Joseph D. Lento is an experienced criminal defense attorney who has represented people accused of probation violations for many years. Contact the office today at (888) 535-3686 for a consultation.