Morristown New Jersey Criminal Law Post

I represented a client last night in the Morristown Municipal Court who was charged with criminal mischief in violation of N.J.S.A. 2C:17-3. Criminal mischief can be graded as a third degree, fourth degree, or disorderly persons offense in New Jersey depending on the circumstances of the alleged offense and the amount of the damage done. In this case, my client was charged with a disorderly persons offense because the damage done was $500.00 or less.

My client had no prior criminal history. A disorderly persons offense in New Jersey, if convicted, leads to a $1,000.00 fine and up to six (6) months in the county jail. In this case, my client was out in Morristown, had a few drinks, and lost his keys. When he came back to his apartment building he broke the window to his apartment so that he could get inside from the cold and go to bed. However, it turned out that he broke the window to his next door neighbors apartment and ended up in the wrong apartment. My client paid for the window to be fixed and apologized to both the police and his neighbor. His neighbor did not want to press charges and I was able to convince the prosecutor and the judge to dismiss the criminal mischief charge against him. In fact, the State would have had a difficult time proving criminal mischief because the "mens rea" or state of mind element of the criminal offense was not present. When my client broke the window he thought he was breaking his own window so he could enter his own apartment. To break your own window is not criminal mischief. However, I was able to avoid that issue at trial and the case was dismissed against my client.

I represented a client yesterday in Morristown Municipal Court who was charged with disorderly conduct in violation of N.J.S. 2C:33-2. In New Jersey, a criminal charge for disorderly conduct is governed by N.J.S. 2C:33-2 which provides in pertinent part:

a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he

(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or

(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.

b. Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.

My client is a young man with no prior criminal record. If he was convicted of disorderly conduct under the criminal code, he would have this petty disorderly persons offense on his record. As a result, this offense would show up on his record if a background check was done. This record can only be expunged after five (5) years. 

I was able to negotiate a downgrade of the criminal offense to a municipal ordinance violation. This is a violation of local law which is just a ticket and a fine. This ordinance violation does not result in a criminal record and should not show up on a background check. The only thing that will show up is the original arrest for disorderly conduct which is expungable after two (2) years from the date of the plea to the ordinance violation. This downgrade of the charges was crucial for my client as he was able to preserve his clean record.

I often represent clients who are facing a temporary restraining order (known as a "TRO"). If a Judge determines that a Temporary Restraining Order should issue, a Final Restraining Order hearing will be scheduled within ten (10) days. This hearing is held at the Superior Court, Family Division in the county in which the TRO was filed. The TRO will be based on an assault, harassment, terroristics threats, or other predicate act of domestic violence. For a TRO to issue, there must be a familial relationship between the parties or the parties must have previously resided together. As a result, restraining orders are not available in every case. If a TRO is issued, the temporary restraining order (TRO) will prevent the alleged aggressor from going near the alleged victim, their place of employment, home, and any other places or people that are named in the restraining order. If the defendant violates the restraining order, he or she will be arrested and charged with contempt of court. At the FRO hearing, both parties may represent themselves or be represented by counsel.

The rule governing the issuance of a Temporary Restraining Order (known as a "TRO") in New Jersey is Rule 5:7A which provides in pertinent part:

Rule 5:7A. Domestic violence: restraining orders

(a) Application for Temporary Restraining Order. Except as provided in paragraph (b) herein, an applicant for a temporary restraining order shall appear before a judge personally to testify upon the record or by sworn complaint submitted pursuant to N.J.S.A. 2C:25-28. If it appears that the applicant is in danger of domestic violence, the judge shall, upon consideration of the applicant's domestic violence affidavit, complaint or testimony, order emergency relief including ex parte relief, in the nature of a temporary restraining order as authorized by N.J.S.A. 2C:25-17 et seq.

(b) Issuance of Temporary Restraining Order by Electronic Communication. A judge may issue a temporary restraining order upon sworn oral testimony of an applicant who is not physically present. Such sworn oral testimony may be communicated to the judge by telephone, radio or other means of electronic communication. The judge or law enforcement officer assisting the applicant shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate long hand notes summarizing what is said shall be made by the judge. Subsequent to taking the oath, the applicant must identify himself or herself, specify the purpose of the request and disclose the basis of the application. This sworn testimony shall be deemed to be an affidavit for the purposes of issuance of a temporary restraining order. A temporary restraining order may issue if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure of the applicant to appear personally and that sufficient grounds for granting the application have been shown. Upon issuance of the temporary restraining order, the judge shall memorialize the specific terms of the order and shall direct the law enforcement officer assisting the applicant to enter the judge's authorization verbatim on a form, or other appropriate paper, designated the duplicate original temporary restraining order. This order shall be deemed a temporary restraining order for the purpose of N.J.S.A. 2C:25-28. The judge shall direct the law enforcement officer assisting applicant to print the judge's name on the temporary restraining order. The judge shall also contemporaneously record factual determinations. Contemporaneously the judge shall issue a written confirmatory order and shall enter thereon the exact time of issuance of the duplicate order. In all other respects, the method of issuance and contents of the order shall be that required by sub-section (a) of this rule.

(c) Temporary Restraining Order. In court proceedings instituted under the Prevention of Domestic Violence Act of 1990, the judge shall issue a temporary restraining order when the applicant appears to be in danger of domestic violence. The order may be issued ex parte when necessary to protect the life, health, or well-being of a victim on whose behalf the relief is sought.

A murder trial is scheduled to start this week in the Morris County Superior Court in Morristown, New Jersey where the defendant, Jose Feliciano, is charged with killing a Chatham priest in October 2009. According to the defendant, he stabbed the priest after the priest theatened to fire him for ending their four-year affair. As a result, it appears that the defendant is looking for manslaughter while the State is trying him on murder charges.

Before the trial begins, Judge Thomas Manahan, J.S.C. is scheduled to rule on a key evidence issue as to the admissibility of the testimony of a potential witness. According to the Star Ledger article entitled, "Nun emerges as surprise witness at Chatham murder trial", Sister Catherine Morrisett is prepared to testify and contradict the defendant's claim that he stabbed Reverend Edward Hinds to end an unwanted sexual affair. The issue that Judge Manahan has to decide is whether or not the communication between the defendant and the Sister was a privileged communication and therefore not admissible at trial. Certain privileges exist between a husband and wife, doctor and patient, and attorney and client which makes those communications "priviledged" and not admissible in court proceedings.

According to the article, it looks like the communication was priviledged as the Sister serves as a therapist and spiritual advisor for Grace Counseling Center in Madison. As a result, I expect Judge Manahan to rule that her testimony as to these communications is not admissible in the defendant's upcoming murder trial. We will see.

In New Jersey, a criminal mischief charge will be graded depending on the alleged damage to the property. It can be a third degree, fourth degree, or disorderly persons offense depending on the value of the damage done. A charge for criminal mischief in New Jersey is codified by N.J.S.A. 2C:17-3 which provides in pertinent part:

§ 2C:17-3. Criminal mischief

a. Offense defined. A person is guilty of criminal mischief if he:

(1) Purposely or knowingly damages tangible property of another or damages tangible property of another recklessly or negligently in the employment of fire, explosives or other dangerous means listed in subsection a. of N.J.S.A. 2C:17-2; or

(2) Purposely, knowingly or recklessly tampers with tangible property of another so as to endanger person or property, including the damaging or destroying of a rental premises by a tenant in retaliation for institution of eviction proceedings.

b. Grading. (1) Criminal mischief is a crime of the third degree if the actor purposely or knowingly causes pecuniary loss of $ 2,000.00 or more.

(2) Criminal mischief is a crime of the fourth degree if the actor causes pecuniary loss in excess of $ 500.00 but less than $ 2000.00. It is a disorderly persons offense if the actor causes pecuniary loss of $ 500.00 or less.

(3) Criminal mischief is a crime of the third degree if the actor damages, defaces, eradicates, alters, receives, releases or causes the loss of any research property used by the research facility, or otherwise causes physical disruption to the functioning of the research facility. The term 'physical disruption" does not include any lawful activity that results from public, governmental, or research facility employee reaction to the disclosure of information about the research facility.

(4) Criminal mischief is a crime of the fourth degree if the actor damages, removes or impairs the operation of any device, including, but not limited to, a sign, signal, light or other equipment, which serves to regulate or ensure the safety of air traffic at any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however, if the damage, removal or impediment of the device recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.

(5) Criminal mischief is a crime of the fourth degree if the actor interferes or tampers with any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however if the interference or tampering with the airport, landing field, landing strip, heliport, helistop or other aviation facility recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.

(6) Criminal mischief is a crime of the third degree if the actor tampers with a grave, crypt, mausoleum or other site where human remains are stored or interred, with the purpose to desecrate, destroy or steal such human remains or any part thereof.

(7) Criminal mischief is a crime of the third degree if the actor purposely or knowingly causes a substantial interruption or impairment of public communication, transportation, supply of water, oil, gas or power, or other public service. Criminal mischief is a crime of the second degree if the substantial interruption or impairment recklessly causes death.

(8) Criminal mischief is a crime of the fourth degree if the actor purposely or knowingly breaks, digs up, obstructs or otherwise tampers with any pipes or mains for conducting gas, oil or water, or any works erected for supplying buildings with gas, oil or water, or any appurtenances or appendages therewith connected, or injures, cuts, breaks down, destroys or otherwise tampers with any electric light wires, poles or appurtenances, or any telephone, telecommunications, cable television or telegraph wires, lines, cable or appurtenances.

c. A person convicted of an offense of criminal mischief that involves an act of graffiti may, in addition to any other penalty imposed by the court, be required to pay to the owner of the damaged property monetary restitution in the amount of the pecuniary damage caused by the act of graffiti and to perform community service, which shall include removing the graffiti from the property, if appropriate. If community service is ordered, it shall be for either not less than 20 days or not less than the number of days necessary to remove the graffiti from the property.

Grading and Penalties:

The above statute details the grading of a criminal mischief offense in New Jersey which is as follows:

• Third Degree: Damage of $2,000.00 or more
• Fourth Degree: Damage of between $500.00 and $2,000.00
• Disorderly Persons Offense: Damage of $500.00 or less

In New Jersey, a third degree offense includes a jail range of three (3) to five (5) years. However, it does not contain a presumption of incarceration which means that, if you have no prior criminal record, you are eligible for a probationary sentence. Further, with no prior criminal history, you are also eligible for the Pre-Trial Intervention (PTI) program in New Jersey. A fourth degree offense includes up to eighteen (18) months in state prison. A disorderly persons offense will be handled in Municipal Court and includes up to six (6) months in the county jail if convicted.

I appeared today in Far Hills Municipal Court with a client charged with disorderly conduct in violation of N.J.S. 2C:33-2.  The offense was committed during the Far Hills Race Day, often called "The Hunt", which is held in Far Hills every year in late October. The steeple races are held and, depending on the weather, typically 30,000 to 50,000 people attend to enjoy the races and party.

The Far Hills Municipal Court is located at 6 Prospect Street, P.O. Box 249, Far Hills, New Jersey 07931. The main telephone number for the court is (908)781-1911. The fax number is (908)781-6048. Court is held the second and fourth Tuesday of the month at 10:30 a.m. The court personnel are as follows:

• Judge: Robert K. Hornby, J.M.C.
• Prosecutors: Chris Bateman, esq., Richard Guss, esq.
• Court Administrator: Marjorie M. Freeman
• Far Hills Police Department: (908)234-1192

Disorderly conduct is a petty disorderly persons offense in New Jersey which includes up to thirty (30) days in the county jail, a $500.00 fine, and a permanent criminal charge if convicted (subject to expungement after five (5) years in certain cases). N.J.S. 2C:33-2 provides in pertinent part:

a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he

(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or

(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.

b. Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.

In this case, I was able to negotiate a dismissal of the disorderly conduct criminal offense. This was very important for my client, a 23-year-old young man with no prior criminal record and a bright future ahead of him. My client plead guilty to a violation of a local municipal ordinance for urinating in public and paid a fine. This plea of guilty results in no criminal record and preserves my client's future. The only record is of the original arrest for disorderly conduct which may be expunged from his record.

In New Jersey, terroristic threats criminal charges are governed by N.J.S. 2C:12-3 which provides in pertinent part:

§ 2C:12-3. Terroristic threats

a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience. A violation of this subsection is a crime of the second degree if it occurs during a declared period of national, State or county emergency. The actor shall be strictly liable upon proof that the crime occurred, in fact, during a declared period of national, State or county emergency. It shall not be a defense that the actor did not know that there was a declared period of emergency at the time the crime occurred.

b. A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

As the above statute details, terroristic threats is typically a third degree crime in New Jersey. Third degree offenses include between three (3) and five (5) years in state prison if convicted. On third degree crimes, a presumption of incarceration does not exist. As a result, if you have no prior criminal record, you may be sentenced to a probationary term rather than imprisonment if convicted of third degree terroristic threats. You may also be eligible for the Pre-Trial Intervention Program in New Jersey. This program allows first time offenders to complete probation and avoid a criminal record if they successfully do so. However, if a terroristic threats offense is graded as a second degree crime in New Jersey, this grading does include a presumption of incarceration and the jail term is between five (5) and ten (10) years.

I represented a client earlier this week who was charged with aggravated assault on a police officer and resisting arrest for an alleged crime during the Hoboken St. Patrick's day parade. These charges were heard at the CJP Court in Hudson County, New Jersey; "CJP" stands for "Central Judicial Processing". The charges were reviewed by the Hudson County Prosecutor's Office and downgraded to Hoboken Municipal Court for disposition.This is a very important step for my client as the charges were downgraded from indictable criminal offenses which must be handled at the Hudson County Superior Court to disorderly persons criminal offenses which can be litigated in the Hoboken Municipal Court. For additional information, see the Joursey Journal newspaper article entitled, "Judge downgrades charges against more than dozen of those arrested during Hoboken St. Patrick's Day celebration; Cases sent to Hoboken Municipal Court".

The New Jersey criminal statute which governs charges for aggravated assault is N.J.S.A. 2C:12-1(b) which provides in pertinent part:

A person is guilty of aggravated assault if he:

(1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury; or

(2) Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(3) Recklessly causes bodily injury to another with a deadly weapon; or

(4) Knowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in section 2C:39-1f., at or in the direction of another, whether or not the actor believes it to be loaded; or

(5) Commits a simple assault as defined in subsection a. (1), (2) or (3) of this section upon:

(a) Any law enforcement officer acting in the performance of his duties...; or

(b) Any paid or volunteer fireman acting in the performance of his duties...; or

(c) Any person engaged in emergency first-aid or medical services acting in the performance of his duties...; or

(d) Any school board member, school administrator, teacher, school bus driver or other employee...; or

(e) Any employee of the Division of Youth and Family Services...; or

(f) Any justice of the Supreme Court, judge of the Superior Court, judge of the Tax Court or municipal judge...

(6) Causes bodily injury to another person while fleeing or attempting to elude a law enforcement officer in violation of subsection b. of N.J.S.2C:29-2 or while operating a motor vehicle in violation of subsection c. of N.J.S.2C:20-10. or

(7) Attempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury; or

(8) Causes bodily injury by knowingly or purposely starting a fire or causing an explosion in violation of N.J.S.2C:17-1...; or

(9) Knowingly, under circumstances manifesting extreme indifference to the value of human life, points or displays a firearm, as defined in subsection f. of N.J.S.2C:39-1, at or in the direction of a law enforcement officer; or

(10) Knowingly points, displays or uses an imitation firearm, as defined in subsection f. of N.J.S.2C:39-1, at or in the direction of a law enforcement officer with the purpose to intimidate, threaten or attempt to put the officer in fear of bodily injury or for any unlawful purpose.

I recently represented a client at a Final Restraining Order ("FRO") Hearing at the Somerset County Superior Court in Somerville, New Jersey. My client's ex-wife filed a Temporary Restraining Order ("TRO") against him based on alleged assault that occurred during a curbside pick up and drop off of their two children. My client's girlfriend was present during the alleged assault and the Court conducted a hearing to determine (1) if an assault actually occurred and (2) if a restraining order should issue. My client's ex-wife also filed assault charges against him in criminal court in Hillsborough, New Jersey. These simple assault criminal charges were handled in Hillsborough Municipal Court.

At the Final Restraining Order hearing, known as an "FRO hearing", the alleged victim testified as to why she believed an assault occurred and as to why she believed a restraining order was necessary. My client then testified as to the alleged assault, or lack thereof, and my client's girlfriend also testified and corroborated his story.

The judge considered (1) any history of domestic violence between the parties, (2) if the predicate act occurred (in this case an assault), and (3) if it is reasonable for the alleged victim to fear for her safety and if a restraining order is necessary to ensure same. In this case, the judge determined that there was no history of domestic violence, that an assault may have occurred but it was a mutual assault/fight, and that there was no reason for the alleged victim to fear for her safety based on the history and circumstances. As a result, the restraining order was dismissed. Further, the alleged victim decided she did not want to pursue the criminal charges further (and sit through another trial) and dismissed the simple assault charges in Hillsborough Municipal Court as well.

This was the correct result in this case and my client was extremely happy to put this episode behind him.

A fight at a local bar led to disorderly conduct charges for three brothers in Boonton according to the Citizen Newspaper of Morris County. The article entitled, "Boonton bar fight results in charges against three brothers", details the events which occurred on February 11, 2011 outside Johnnie's Tavern on Boonton Avenue. According to police, the three defendants had gotten into a physical altercation with patrons and employees of the tavern. The three defendants were removed from the scene and charged with disorderly conduct in violation of N.J.S.A. 2C:33-2.

These disorderly conduct charges are petty disorderly persons offenses which include up to thirty (30) days in the county jail if convicted and a permanent criminal charge on your record. It appears that these defendants were lucky because, typically in these cases where a bar fight and a physical altercation occurred, the defendants would also be charged with simple assault in violation of N.J.S.A. 2C:12-1(a). Simple assault is a disorderly persons offense which includes up to six (6) months in the county jail and up to a $1,000.00 fine. Moreover, if the injuries to the alleged victim are serious enough or a weapon is involved then the defendant can be charged with aggravated assault in violation of N.J.S.A. 2C:12-1(b). Aggravated assault is an indictable criminal offense which would be handled in the Morris County Superior Court in Morristown, New Jersey. Since these defendants are charged with disorderly conduct, their case will be handled at the Boonton Municipal Court.

Many times clients ask me about the difference between simple assault and aggravated assault in New Jersey. The short answer is the degree of force involved, the nature of the injuries to the alleged victim, and whether or not a weapon was used.

Simple assault is governed by N.J.S.A. 2C:12-1 which provides:

§ 2C:12-1. Assault

a. Simple assault. A person is guilty of assault if he:

(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or

(2) Negligently causes bodily injury to another with a deadly weapon; or

(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.

Simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense. Simple assault charges will be handled in the Municipal Court in the municipalitiy in which the alleged assault occurred. A disorderly persons offense is a criminal offense with a maximum penalty of a $1,000.00 fine and six (6) months in the county jail.

Aggravated assault is governed by N.J.S.A. 2C: 12-1(b) and is an indictable criminal offense in New Jersey. This means that it must be handled at the Superior Court in the County in which the alleged offense occurred. Aggravated assault can be graded as a 2nd degree, 3rd degree, or 4th degree crime, depending on the circumstances of the offense and the nature of the alleged victim (for example, if the victim was a law enforcement officer).

Typically, a bar fight or street fight results in simple assault charges being filed unless one of the parties is seriously injured. Further, the charges may be aggravated assault if there were multiple actors on one victim or a weapon was used. Many times cases are originally charged as aggravated assault and then reviewed by the County Prosecutor's Office and downgraded to simple assault.