Criminal Defense For Local, State & Federal Cases

 

I represent clients charged with many varieties of crimes, including sex crimes, murder, federal crimes such as drug trafficking, robbery, and immigrants charged with crimes.

I have represented clients on appeal before the Federal Second and Third Circuit Courts of Appeals, the New Jersey Supreme Court and the New Jersey Appellate Division. I have represented clients before the Federal Courts in the Southern District of New York, the Eastern District of New York, the District of New Jersey, and the Eastern District of Pennsylvania as well as the state trial courts in New Jersey and New York.

The Criminal Process

You’ve been arrested. Hopefully you have said nothing to the police. How do you get out of jail?

Bail

This is the issue of BAIL.  Bail is the amount of security-money-you have to give the court to guarantee your presence in court. When you give the court the security the court lets you out of jail.  Bail is generally set by the municipal court judge. He is called when you are arrested at night, and he can set bail for all disorderly persons offenses, fourth and third degree crimes. First and second degree crimes must have bail set by a Superior Court Judge. Bails for all crimes for which there have been arrests during the day are set by a Superior Court Judge; disorderly persons offenses by municipal court judges. There is now a bail schedule for all offenses, which the judges use as a guideline to set bail in your case.

When you are arrested for a crime you are interviewed at the jail by probation. They take a short history of your employment, income, dependents, and whether you have a record of convictions. The information is presented to the presiding judge who will review the guidelines and set the bail.

For certain crimes the accused must, under oath, provide a statement of the names and addresses of the people who contributed to the bail, the amount, nature, and timing of the contribution, and the relationship between the accused and the persons providing the funds. If your son or daughter is locked up this can be a great burden because they often have no idea where the money is coming from. I believe that in many instances this requirement is unconstitutional.

Once bail has been set, you are entitled to a hearing to modify bail. There are two reasons to have this hearing. One is to make an argument to lower the bail, obviously. The second is to look at the police reports. You normally cannot obtain discovery until the pre-arraignment conference. But you can look at the police reports when making your bail application. This way you will know what you are facing well before the grand jury presentation. You can begin preparing to meet the allegations of the police.

For third and fourth degree crimes you have a 10% option. This means that you can post, in cash, at the jail, anytime, 10% of the bail amount set and be free to leave the jail. First and second degree crimes do not have a 10% option, so you must post the full amount. A bail bondsman charges a fee for his services, which is generally 10% of the bond you must post.

In Federal Court the bail system is very different. Under the Bail Reform Act, the magistrate must set a bail which is reasonable to guarantee your appearance, which often means an unsecured personal recognizance bond, which you simply sign. In other cases he may require others to sign the bond as guarantors of your appearance. Sometimes you may have to post property, or wear an ankle transmitter. The hearing for setting the bail before the magistrate will often be within 48 hours of your arrest.

However, in serious drug cases, and other serious crimes, there is a presumption that no set of conditions will guarantee your appearance. You are entitled to a bail hearing, which is often within three days of the setting of the bail. Your are NOT entitled to discovery for this hearing. You must be able to convince the magistrate that there is a combination of conditions which will guarantee your appearance.

PRE-TRIAL INTERVENTION

In New Jersey you have a once in a lifetime opportunity to avoid criminal prosecution for all crimes by entering into PTI. This is similar to ACD in New York and ARD in Pennsylvania. In Federal Court there is a similar program, but it is much harder to get into. These programs provide a once in a lifetime opportunity for the first time offender to avoid criminal prosecution. To be eligible in New Jersey you must have no prior criminal convictions, and generally be accused of only fourth and third degree crimes. Second degree crimes may require the consent of the prosecutor to get into PTI. Prior participation in PTI, ARD, ACD, or a Federal ‘diversion’ program makes you ineligible for PTI.

PTI is generally the prosecutor’s determination. This decision can be reviewed by a Superior Court Judge for gross abuse of discretion, mistake, or failing to take into account all PTI factors. Sometimes you can get a judge to overrule the prosecutor.

Getting into PTI is often crucial. It can determine whether you go to prison,or not. If you are an immigrant being accepted into PTI means you are NOT deported. It also often determines whether your driver’s license is suspended or not - if you get in, you keep your license.

PRE-ARRAIGNMENT CONFERENCE

At the pre-arraignment conference the prosecutor must offer a plea to you prior to indictment. This is normally your best opportunity to work out the charges, before the prosecutor presents the case to the grand jury. You are entitled to review the discovery and discuss the case with the prosecutor and the judge. I have been able to either substantially lessen or even eliminate any jail sentence.

THE GRAND JURY

In State practice this is not as big a focus as in Federal practice because you are entitled to get a transcript of the entire grand jury proceeding. And in State practice the prosecutor has a limited obligation to present exculpatory evidence to the grand jury.

In Federal practice the proceedings before a grand jury are supposed to be secret. Only under unusual circumstances can you get a transcript of the grand jury proceedings. But only evidence actually presented to the grand jury is secret. So if it’s not presented, it’s not secret. And documents not created for the grand jury are not secret. So business documents are available. Often these documents are subject to grand jury subpoena, which can be the subject of a motion to quash.

Witnesses who testify before the grand jury are not subject to the secrecy requirement so they may be interviewed after their testimony. In fact, the witness may leave the grand jury room anytime to consult with his attorney, and should do so often. The questions asked are often as important as the answers given since the questions show the direction of the government’s investigation.

A Federal prosecutor has no obligation to present exculpatory evidence to the grand jury.

Obviously, if you receive a subpoena to testify before the grand jury, you need a lawyer, before you testify.

INDICTMENT

An indictment simply means that a majority of the 23 people in the grand jury room, after hearing only a police officer’s summary of the case, believe that it is probable that a crime was committed, and you did it.

A motion to dismiss the indictment can be made. Although the judge will greatly indulge the state at these hearings, sometimes you will succeed. I have succeeded.

After the indictment there is an arraignment. This means that in open court the charges are read, you are advised of your right to an attorney, and new bail applications are made. In state practice you will receive the police reports (discovery). In Federal practice a trial date is set, a date for pre-trial motions is set, and eventually you will receive discovery. At this point you really need an experienced attorney since pre trial motions to suppress evidence, or limit evidence, are very important. In State practice a plea cut-off date is set after which the State cannot offer you a plea bargain. Eventually, usually within 6 months, there is a trial. Appeals from verdicts are taken within 45 days of sentence.

In Federal court the trial framework is governed by the Speedy Trial Act, which generally requires that trials occur within 70 days of arraignment. This puts a real burden on the defense attorney, because the government can take forever to investigate and indict. You have 70 days.

Further, under the Jencks Act, you are only entitled to a statement of a testifying witness after he has testified on direct! The government normally provides statements during discovery, but they do not have to. Only after the witness testifies do they have to. Appeals must be taken within 10 days of sentence.

DON’T GIVE UP HOPE

This is only a short synopsis of the criminal process. It is quite complex, and varies with the facts and the crime charged. Experience and skill are very important. You need the services of a Certified Criminal Trial Attorney who has a Masters in Trial Advocacy. You need Mitchell Ignatoff, Esq.  Call him today at 732-356-2212. 800-400-6908 or click here

Your liberty is at stake