Drug Crimes KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 website: www.njlaws.com Kenneth Vercammen has defended individuals charged with drug offenses in both Superior Court and Municipal Court. The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses:__NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; __NJSA 2C:35-10(b), using or being under the influence of CDS; __NJSA 2C:35-10(c), failure to deliver CDS to police; __NJSA 2C:36-2, possession of drug paraphernalia Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed. Moreover, the court must suspend the defendants drivers license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed. If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge. CONDITIONAL DISCHARGE New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted supervisory treatment under 24:21-27, 2C:43-12 or 2C: 36A-l may apply for a conditional discharge. The court upon notice to the prosecutor and subject to 2C: 36A-l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a conditional discharge is optional to the court, you should be prepared to prove, through letters, documents, or even witnesses, that the defendants continued presence in the community or in a civil treatment program, will not pose a danger to the community. You should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendants drivers license between six months and two years. The conditional discharge period is also between six months and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory. SUPPRESSION MOTION A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5-7. The court rules have been amended to provide the Suppression Motion can be held directly in the Municipal Court. Your attorney can subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is very important. PRE-TRIAL The Municipal Court prosecutor is responsible for providing discovery. Rules 3:13-3, 7:4-2, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990). The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35-19. If the State intends to introduce the lab certificate at the trial, a notice of an intent to proffer that certificate and all reports relating to the analysis of the CDS shall be served on defense counsel at least 20 days before the proceeding begins. This includes an actual copy of the lab certificate. Within 10 days of receipt, the Defense counsel must notify the Prosecutor in writing. This will not only alert the Prosecutor to the Defendants objections concerning the admission of the lab certificate into evidence, but also set forth grounds for the objection, 2C:35-19c. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence. THE TRIAL The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). The State must prove knowledge or purpose on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Purpose means it was defendants conscious intention to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990). If actual possession cannot be demonstrated, defendants constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975).