New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Articles Posted in Pleas and Plea Agreements

Clients often become concerned when they hear their attorney discuss plea deals soon after being retained.  This concern is magnified when they go to court and hear the prosecutor and judge focus on pleading the case.  Indeed, many clients believe that their defense attorney is trying to just get them to plead guilty so that the attorney can complete the case as quickly, and with as little effort, as possible, or that the judge is simply trying to get rid of their case by somehow forcing them to plead it out.  None of this is true.

The fact is that the overwhelming majority of criminal cases in both state and federal courts throughout the country resolve by way of guilty plea.  This is because our system is basically designed, at least initially, to plead cases.  First, we do not have the resources to try every case.  If every defendant proceeded to trial, it would break the system’s back.  Further, it is not unusual for a defendant to find themselves in a position where the proofs in their case are such that a result reached by way of negotiated plea will be more favorable than one reached by way of jury verdict after trial.  Moreover, if an attorney is devoting considerable time and effort to discussing plea deals, that means they are doing their job.  It is the attorney’s obligation to be sure that the client understands all of their options, which include pleading the case out as opposed to going to trial.  The judge hearing the case is going to expect that the defendant was so informed, and the ethics rules require it.  With that said, if the client still wants a trial after listening to the attorney’s explanation of proposed plea deals, it is the client’s right to reject the plea deal and the attorney’s obligation to try the case.

These basic principles apply in all jurisdictions, although different courts implement them using their own unique procedures.  For example, defendants in the federal system are required to complete and sign elaborate forms that describe their plea arrangement in some detail, and the judge taking the plea will review the contents of the form with them on the record at the plea hearing.  The New Jersey Superior Court uses forms in criminal pleas that are even more detailed than those used in the federal system.  Until recently, these forms were used only in adult criminal cases.  Significantly, our Superior Court has now started requiring plea forms in juvenile cases.  However, the New York State criminal courts do not use explanatory forms for plea deals, although the judge will explain the terms and conditions of any plea arrangement to the defendant on the record at the plea hearing. Continue reading

Effective January 1, 2017, Missouri sex offenders guilty of 13 different sex crimes based on acts committed on or after August 28, 2006, are subject to additional security requirements.  They will be required to wear GPS monitoring devices for the rest of their lives.  This includes defendants who were sentenced before this requirement was enacted.  This raises two important issues.  First, many of these defendants resolved their cases prior to the first of this year, and this requirement was not included in their original plea arrangement or sentence.  Additionally, it makes daily functioning in the community as a convicted sex offender that much more onerous and burdensome.  Both of these issues require careful consideration.

The GPS devices at issue alert authorities if an offender “lingers” near a school or park.  When the device activates, the defendant receives directions from a state official to, for example, report immediately to a probation officer.  The devices are also waterproof, and will alert the authorities if a defendant attempts to remove it.  The new rules affect hundreds of sex offenders throughout the state.

The first problem that the implementation of this GPS monitoring technology raises is that it was not contemplated by plea deals agreed to, or sentences imposed, prior to January 1, 2017.  Defendants who resolved their cases prior to the implementation date agreed to plead guilty based upon certain stated terms and conditions, all of which were presumably included in the records of their cases.  At sentencing, the court imposed certain terms and conditions of supervision with which they had to comply prospectively.  They were presumably advised by competent counsel, received notice of all of the requirements of community supervision, and consented to them in connection with the disposition of their cases.  In short, they knew the deal, and consented to it.  Now, after the fact, the rules are being changed with the addition of new, burdensome requirements that are apparently permanent.  How the terms and conditions of a plea arrangement or sentence can be so altered with no discussion or debate runs roughshod over basic concepts of due process, as well as fairness and decency. Continue reading

The NJ Appellate Division recently decided the companion cases of State v. Fitzpatrick and State v. Brister.  These cases focus primarily on the statutory bar date prior to which the State must appeal from a trial court’s denial of the imposition of a Drug Offender Restraining Order, or DORO.  Although the discussion concerning this issue is important, the decision raises another problem which can potentially arise at any sentencing hearing that should be met with a defense objection.

Both defendants pleaded guilty to third degree drug charges and were sentenced to special terms of drug court probation in lieu of custodial terms in State prison.  At sentencing, the  prosecutor – for the very first time in either case – informed the Court and defense counsel that it would seek DOROs against each defendant.  Defense counsel objected to the DOROs because they were not mentioned at the time of the plea.  On December 2, 2014, after briefing and further argument, the trial court denied the imposition of a DORO in either case and sentenced each defendant to drug court probation as contemplated by the plea agreements.  On December 9, 2014, the trial court entered Orders granting the defense motions to preclude in imposition of DOROs in either case.  The State filed Notices of Appeal as to the denial of the DOROs on December 23, 2014.

The Appellate Division began its discussion by recalling that the purpose of a DORO is to prevent drug offenders from returning to the same location(s) where they previously traded in illegal drugs.  The Court also noted that because the State’s efforts to appeal a criminal sentence raise constitutional/double jeopardy concerns, the State can pursue such an appeal only when the sentence is illegal, or when it is expressly authorized by statute.  The DORO statute expressly authorized the State to appeal the denial of a DORO, but required that the Notice of Appeal had to be filed and served within 10 days.  The defendants were sentenced, and the DOROs were originally denied, on December 2, 2014.  The Notices of Appeal were not filed and served until December 23, 2014.  Because the State failed to comply with the statutory 10-day deadline, the Court dismissed the State’s appeals for lack of jurisdiction. Continue reading