Q: What happens when I'm arrested?

  

Answer: Whenever somebody files a criminal complaint against you, usually a law enforcement officer, that complaint can be issued on either a summons or a warrant. If the complaint is issued on the summons you will be processed at a local police department and given a court date to appear. If the complaint is issued on a warrant, you will be transported to the local County jail and will see a judge within 48 hours (usually the next morning) for release hearing. The judge will make a determination on whether to release you, and if so, what conditions to apply to your release ( i.e. no victim contact or checking in with the court weekly etc.). If the prosecutor makes a motion for pretrial detention at the release hearing you will be remanded back to County jail for 3 days before the hearing will take place.

If the crime you are being charged with is indictable crime (sometimes called a felony) your matter will be heard in the Superior Court. If the crime you are being charged with is a disorderly persons offense, your matter will be heard in the municipal court. Either way it is extremely important to contact an attorney as soon as possible. The court will also give you an opportunity to apply for a public defender if you cannot afford an attorney.

Q: What if the police did not read me my rights?

  

Answer: The "rights" that most people are referring to when asking this question are the "Miranda Warnings," and they specifically deal with your right to remain silent, your right to have an attorney present during questioning, and your right to have an attorney appointed to you if you cannot afford one.  There is a common misconception that if the police did not read you your Miranda Warnings that the arrest is invalid and your charges should be dismissed. Unfortunately, that is almost never the case. What can happen though is that any statements you made to the officer that are possibly incriminating can be suppressed. Which means that if the Prosecutor's case rests on those incriminating statements, then we may be able to have those charges ultimately dismissed.

Q: How much does it cost to hire a lawyer?

  

Answer: This depends on a variety of factors, such as what you are charged with, the complexity of your case, the attorney you hire, etc., But in most cases you should be able to at least talk to an attorney for free. Our office, and many other attorneys, give free consultations to at least explain to you what your case is about and ultimately give you a quote for legal fees. Now with technology, our office and many offices should be able to do this over the phone or through email.

Q: What is a plea bargain?

  

Answer: A plea bargain is when your lawyer negotiate with the prosecutor in your behalf for the purposes of offering a guilty plea to a lesser charge than what you are charged with in order to mitigate your risk exposure. For example, if you are charged with a third-degree crime that could carry with it a sentence of 2 to 5 years in prison, the prosecutor may make an offer for you to plea to a lower 4th degree crime with a recommendation to the court of probation only. If the evidence in your case is strong, you may decide to take this offer. It is important to know that an attorney can never agree to anything without your consent. A lawyer should always explain to you what the offer is, what the risks are in accepting or rejecting that offer, and recommend what he/she believes you should do. Your lawyer's recommendation is usually the best option based on their experience. Approximately 95 to 98% of cases or plea bargained.

Q: What is hearsay evidence?

  

Answer: there is a Rule of Evidence called the prohibition of hearsay evidence. Hearsay Evidence is a statement made by an out-of-court declarant that is being offered for the truth of the matter. This is a much more complicated rule then it lets on to be. A quick understanding of it for this purpose is that if the witness is not there in court, including the author of the document, it is usually not admissible as evidence. Complicated Rules of evidence like this make it imperative to hire an attorney when you have a legal matter.

Q: What is the difference between a felony and misdemeanor?

  

Answer: In New Jersey we actually do not use the terms felony or misdemeanor. We use the terms "crime" and "disorderly persons offense" which are essentially synonymous with felony and misdemeanor. If you are charged with a crime in New Jersey you have a right to an indictment, meaning that the prosecutor must present your case to a grand jury, and the grand jury must find probable cause, in order to officially charge you with a crime. Crimes will also be handled in Superior Court and the defendant charged with a crime to be sentenced longer than a year in prison. Disorderly person's offenses did not require an indictment for an official charge, are handled in municipal court, in a disorderly persons offense charge is a maximum sentence of 6 months in jail and a fine of up to $1000.

Q: What is an indictment?

  

Answer: An indictment in New Jersey is when the prosecutor present your case to a grand jury in order to prove probable cause to have you officially charged with a crime. Prior to that, your charges are only a complaint, and then possibly an accusation prepared by the prosecutor's office. An indictment is a secret proceeding in which only the prosecutor, a grand jury, and any witnesses that are testifying are allowed to be present. The defendant and defense counsel are not allowed to be present nor are they allowed to know when the indictment is taking place.

Q: What is a retainer agreement?

  

Answer: A retainer agreement is the contract that you sign with an attorney which states that your attorney agrees to represent you for a specific legal matter and that you agree to abide by the rules of the contract, such as payment and cooperation with your attorney.

Q: What happens if I'm arrested for domestic violence and the other person does not want me charged?

  

Answer: If you are arrested for domestic violence and the victim (ie. girlfriend, boyfriend, husband, wife, family member, etc.)  does not want to go forward, that does not automatically mean that the charges against be dismissed. The State takes domestic violence cases very seriously and understands that sometimes victims did not want to come forward out of fear of retribution. Even if the police officers show up at the scene to a domestic violence call and nobody wants to speak to the police officer, they are required to make it arrested they see any indication of domestic violence. Domestic violence cases can result in Temporary Restraining Orders being issued against the alleged aggressor which also requires a Final Restraining Order hearing in the Family Court contemporaneously with the underlying criminal charge. If after speaking with the prosecutor, the victims still does not want to comply with the State's case, the prosecutor must make a decision on whether or not they can go forward with the charges without the alleged victim's testimony. This would require very strong evidence, but it can and does happen. If the alleged victim does not want to go forward with the Final Restraining Order, then the Family Court may dismiss the Temporary Restraining Order if it finds that the alleged victim is acting on their own free will.

Q: What is a diversionary program in New Jersey?

  

Answer: Diversionary programs,  i.e. Pretrial intervention (PTI), Conditional Discharge, and Conditional Dismissal, are typically for 1st time and low status offenders in New Jersey to be able to enter into a program, typically probation with conditions, and to have the charges dismissed once successfully completed. You must be eligible for these programs and make an application. Each of these programs can only be used once, one time, meaning that if you use the pretrial intervention before you will be barred from entering into any of the other programs, and vice versa. 

Q: Should I have a lawyer present when I speak to the police?

  

Answer: Absolutely. Law enforcement officers are allowed to lie and mislead a suspect during an interrogation. This has been considered a valid interview technique (interview is a fancy word for interrogation). I have had many clients who thought that they would be able to speak to an investigating officer and talk their way out of the situation. This is almost never the case. What you need to understand is that law enforcement officers are specifically trained to conduct these interrogations and do this every day. That is why even if you think that you are in no trouble at all, you should always contact an attorney prior to speaking to the police.

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Benevento Law Firm LLC

388 Pompton Ave. Suite 8 Cedar Grove, NJ 07009

(973) 812-0385

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