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Indictable Crimes

Charges that are more commonly known throughout the Country as “Felonies” are referred to in New Jersey as Indictable Crimes or Indictables. These Crimes are separated into four grades known as degrees. The severity of the consequences depend on the degree of the crime charged; with a 1st Degree charge having the harshest and a 4th Degree charge the least severe penalties. The grading of any particular offense is pre-determined in our criminal code (those offenses that begin with the prefix 2C; and is based on a variety of factual circumstances regarding the commission of the crime and/or the extent of physical or monetary injury sustained by the victim. Each Indictable offense carry with it significant fines, penalties, probationary and/or terms of incarceration. Specifically with regard to either 1st or 2nd Degree Crimes; of which being found guilty of includes what is known as a “presumption of incarceration,” which stands for the proposition that a defendant found guilty of same will almost definitely be sentenced to a term of incarceration in New Jersey State Prison.

Maximum Penalties For Indictable Crimes

Ocean County Theft Attorneys

2C:20-1 et. al.

Most offenses involving Theft are codified under chapter 20 of our criminal code in New Jersey; Title 2C. The grading of these types of offenses depend upon the amount in controversy, or the amount that is alleged to have been taken, misappropriated and/or procured by unlawful means. Theft related offenses range from Disorderly Persons Offenses to Crimes of the 1st Degree. The specific charges involving theft related offenses and the corresponding statutes are as follows:

• Robbery; N.J.S.A. 2C:15-1
• Theft by Unlawful Taking or Disposition; N.J.S.A. 2C:20-3
• Theft by Deception; N.J.S.A. 2C:20-4
• Theft by Extortion; N.J.S.A. 2C:20-5
• Theft of Property Lost, Mislaid or Delivered by Mistake; N.J.S.A. 2C:20-6
• Receiving Stolen Property; N.J.S.A. 2C:20-7
• Theft of Services; N.J.S.A. 2C:20-8
• Failure to make required disposition of Property; N.J.S.A. 2C:20-9
• Unlawful Taking of Means of Conveyance (Automobiles); N.J.S.A. 2C:20-10
• Shoplifting; N.J.S.A. 2C:20-11

Theft offenses almost always involve some sort of Restitution to whomever is determined to have been the victim; meaning an amount of money may have to be repaid to one or more parties as a part of the resolution of your case. These amounts are often in dispute and can be negotiated and/or determined after a hearing on your behalf. Careful consideration of Restitution as well as other available defenses are vital when preparing your matter prior to the entry of any plea or trial. Call the Law Offices of Nicholas A. Moschella, Jr., LLC for a FREE CONSULTATION today at (732) 930-3482.

Theft by Unlawful Taking or Disposition; N.J.S.A. 2C:20-3

Crimes or offenses involving the taking of physical, tangible or items of value fall under the traditional definition of Theft pursuant to N.J.S.A. 2C:20-3. Theft can be of “movable property,” as described in part above; or “immovable property,” where a person unlawfully transfers ownership or interest in some property belonging to another. This statute; as with most theft related situations, creates a distinction between the seriousness of the crime charged against you based upon the monetary value assigned to the property taken, improperly under someone’s control without lawful authority or attempted to be misappropriated in some fashion. As such, situations involving a theft range from a Disorderly Person; or non-indictable offense when the amount in controversy is less than $200; to a 2nd Degree Felony, when the value is in excess of $75,000. Cleary there can be many factors utilized to mitigate and/or attempt to defend against the dollar amount of value involved in these circumstances; however the figure assigned by the Police or Prosecutors Office reviewing the matter will initially determine the degree of the offense for which you will face charges.

N.J.S.A. 2C:20-3(b). Grading of theft offenses.
(1)Theft constitutes a crime of the second degree if:
(a)The amount involved is $75,000.00 or more;
(b)The property is taken by extortion;
(c)The property stolen is a controlled dangerous substance or controlled substance analog as defined in N.J.S. 2C:35-2 and the quantity is in excess of one kilogram;
(d)The property stolen is a person’s benefits under federal or State law, or from any other source, which the Department of Human Services or an agency acting on its behalf has budgeted for the person’s health care and the amount involved is $75,000 or more; or
(e)The property stolen is human remains or any part thereof.
(2)Theft constitutes a crime of the third degree if:
(a)The amount involved exceeds $500.00 but is less than $75,000.00;
(b)The property stolen is a firearm, motor vehicle, vessel, boat, horse, domestic companion animal or airplane;
(c)The property stolen is a controlled dangerous substance or controlled substance analog as defined in N.J.S. 2C:35-2 and the amount involved is less than $75,000.00 or is undetermined and the quantity is one kilogram or less;
(d)It is from the person of the victim;
(e)It is in breach of an obligation by a person in his capacity as a fiduciary;
(f)It is by threat not amounting to extortion;
(g)It is of a public record, writing or instrument kept, filed or deposited according to law with or in the keeping of any public office or public servant;
(h)The property stolen is a person’s benefits under federal or State law, or from any other source, which the Department of Human Services or an agency acting on its behalf has budgeted for the person’s health care and the amount involved is less than $75,000;
(i)The property stolen is any real or personal property related to, necessary for, or derived from research, regardless of value, including, but not limited to, any sample, specimens and components thereof, research subject, including any warm-blooded or cold-blooded animals being used for research or intended for use in research, supplies, records, data or test results, prototypes or equipment, as well as any proprietary information or other type of information related to research;
(j)The property stolen is a New Jersey Prescription Blank as referred to in R.S. 45:14-14; or
(k)The property stolen consists of an access device or a defaced access device.
(3)Theft constitutes a crime of the fourth degree if the amount involved is at least $200.00 but does not exceed $500.00. If the amount involved was less than $200.00 the offense constitutes a disorderly persons offense.

Convictions for theft related offenses will result in a permanent criminal record and may carry terms of Probation as well as sentences involving jail. If you have been charged with any type of theft, call The Law Office of Nicholas A. Moschella, Jr., LLC at (732) 930-3482 24 Hours a day, 7 days a week for a FREE CONSULTATION. With a decade of experience; including being employed as a former Municipal Prosecutor in over 20 towns throughout Ocean and Monmouth Counties, Nicholas Moschella is personally available to prepare your case and defend against the harsh penalties associated with these types of offenses.

Theft by Deception or Extortion – N.J.S.A. 2C:20-4 & 2C:20-5

2C:20-4 – Theft by Deception

Crimes or offenses involving theft of money, property or other items of value can also be charged under 2C:20-4 as Theft by Deception. A person is guilty of theft if he obtains any said property of another by deception. A person deceives if he purposely:

• a. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind, and including, but not limited to, a false impression that the person is soliciting or collecting funds for a charitable purpose; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise
• b. Prevents another from acquiring information which would affect his judgment of a transaction; or
• c. Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.

Theft by extortion 2C:20-5.

A person is guilty of theft by extortion if he purposely and unlawfully obtains property of another by extortion. A person extorts if he purposely threatens to:

• a. Inflict bodily injury on or physically confine or restrain anyone or commit any other criminal offense
• b. Accuse anyone of an offense or cause charges of an offense to be instituted against any person
• c. Expose or publicize any secret or any asserted fact, whether true or false, tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute
• d. Take or withhold action as an official, or cause an official to take or withhold action
• e. Bring about or continue a strike, boycott or other collective action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act
• f. Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or
• g. Inflict any other harm which would not substantially benefit the actor but which is calculated to materially harm another person.

It is an affirmative defense to prosecution based on paragraphs b, c, d or f that the property obtained was honestly claimed as restitution or indemnification for harm done in the circumstances or as lawful compensation for property or services.

Theft by Deception or Extortion can be as serious as a 2nd Degree Crime if the value of items or amount of money unlawfully obtained exceeds $75,000; which carries a presumption of incarceration of a possible 5-10 years in New Jersey State Prison. If you have been charged with this type of offense; call The Law Office of Nicholas A. Moschella, Jr., LLC at (732) 930-3482 for a FREE CONSULTATION on your matter.

SHOPLIFTING – N.J.S.A. 2C:20-11

In the State of New Jersey, if you are charged with Shoplifting; or the theft of merchandise from any retail, convenience, grocery store or the like; or concealing such items with the intent to deprive the lawful owner thereof, you will be subject to civil and criminal penalties including fines, probation or mandatory jail. Shoplifting can be either a Disorderly Persons Offense handled in Municipal Court; if the items total less than $200 in value, or as an Indictable Crime in the County Superior Court if the merchandise involved is worth $200 or more. The penal consequences of being convicted for Shoplifting range from a maximum of 180 days in jail for a Disorderly Persons Offense to a possible 5-10 Years in New Jersey state Prison if convicted of a 2nd Degree Crime. If you have been convicted of Shoplifting on two prior occasions, a third conviction carries a mandatory 90 days in jail. Additional Civil Fines, Probationary Terms and No Trespass Orders regarding the premises upon which you were charged with Shoplifting are among the ancillary possible penalties associated with this Shoplifting. If you have been charged with Shoplifting, or any related offenses such as being involved in an “Organized Retail Theft Enterprise,” call the Law Offices of Nicholas A. Moschella, Jr, LLC for a FREE CONSULTATION regarding your matter at (732) 930-3482.

N.J.S.A. 2C:20-11 codifies what is considered a Shoplifting offense in New Jersey and reads in pertinent part:

b. Shoplifting.  Shoplifting shall consist of any one or more of the following acts: (1) For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.

(2) For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof

(3) For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof.

(4) For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof.

(5) For any person purposely to under-ring with the intention of depriving the merchant of the full retail value thereof.

(6) For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart.

c. Gradation. (1) Shoplifting constitutes a crime of the second degree under subsection b. of this section if the full retail value of the merchandise is $75,000 or more, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $1,000 or more.
(2) Shoplifting constitutes a crime of the third degree under subsection b. of this section if the full retail value of the merchandise exceeds $500 but is less than $75,000, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is less than $1,000.

(3) Shoplifting constitutes a crime of the fourth degree under subsection b. of this section if the full retail value of the merchandise is at least $200 but does not exceed $500.

(4) Shoplifting is a disorderly persons offense under subsection b. of this section if the full retail value of the merchandise is less than $200. The value of the merchandise involved in a violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons, or were committed in furtherance of or in conjunction with an organized retail theft enterprise. Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C:43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows:  for a first offense, at least ten days of community service;  for a second offense, at least 15 days of community service;  and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days.

d. Presumptions.  Any person purposely concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment;  and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.

e. A law enforcement officer, or a special officer, or a merchant, who has probable cause for believing that a person has willfully concealed unpurchased merchandise and that he can recover the merchandise by taking the person into custody, may, for the purpose of attempting to effect recovery thereof, take the person into custody and detain him in a reasonable manner for not more than a reasonable time, and the taking into custody by a law enforcement officer or special officer or merchant shall not render such person criminally or civilly liable in any manner or to any extent whatsoever.

Any law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the offense of shoplifting as defined in this section.

A merchant who causes the arrest of a person for shoplifting, as provided for in this section, shall not be criminally or civilly liable in any manner or to any extent whatsoever where the merchant has probable cause for believing that the person arrested committed the offense of shoplifting.

f. Any person who possesses or uses any antishoplifting or inventory control device countermeasure within any store or other retail mercantile establishment is guilty of a disorderly persons offense…

Robbery

N.J.S.A. 2C:15-1
In New Jersey, Robbery is generally a crime of the 2nd Degree that will expose a defendant to a maximum of 10 years in New Jersey State Prison. Robbery is a theft related offense that becomes a Robbery for purposes of a criminal prosecution if certain factors and/or circumstances are present or occur during or immediate flight from the commission of a theft. Robbery is defined in N.J.S.A. 2C:15-1 and provides in pertinent part:
A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase “in the course of committing a “theft” if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.
As per subsection a.(1) of the robbery statute, any “bodily injury” sustained by anyone other than the actor(s) involved in the commission of the alleged offense and/or any “use of force” upon any individuals will transform a simple charge of theft into a Robbery. “Bodily Injury” is a term defined by the legislature and has been held to include even the most minimal injuries or any feeling of pain or discomfort sustained by a victim. Further, the threat or placing another in immediate fear of bodily harm in the course of committing a theft will also lead to a charge of Robbery. While Robbery is normally a crime of the 2nd Degree, subsection (b) of N.J.S.A. 2C:15-1 states that Robbery is a crime of the 1st Degree if in the course of committing any theft, the actor “attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.” In this event, a defendant will be exposed to a sentence of up to 20 years in New Jersey State Prison.

Regardless of whether a particular person is charged with a 1st or 2nd Degree, a conviction for Robbery is one of the 14 crimes in the State of New Jersey that is subject to the NO Early Release Act (NERA). Therefore, and conviction for Robbery will expose a defendant to a period of parole ineligibility equal to 85% of the total length of sentence imposed; denying anyone incarcerated for Robbery the opportunity to even seek an opportunity to be let out of prison before that period of time has elapsed. Robbery is considered to be a particularly vicious crime by the State of New Jersey, and cases involving these types of acts are prosecuted harshly. Many defenses to both the charge itself as well as the factual circumstances that give rise to a charge of Robbery are available under New Jersey Jurisprudence. Sentencing issues are also prevalent with regard to Robbery cases and necessitate a great deal of expertise with regard to same. Call the Law Offices of Nicholas A. Moschella, Jr., LLC today for a FREE CONSULTATION on your matter. With a decade of courtroom and trial experience; Nicholas Moschella can help to most successfully defend and resolve your case.

Resisting Arrest, Eluding – N.J.S.A. 2C:29-2

Resisting Arrest, Eluding Officer

Resisting arrest can be either a disorderly persons offense; which would be handled in the Municipal Court of the town where you were charged, or a felony offense that will be sent to the County Superior Court based upon the facts and circumstances of the charge. Eluding; however, is always a felony or Indictable Offense and is graded as either a 3rd or 2nd Degree Crime. Eluding entails flight from officers attempting to effectuate a lawful arrest; whether by means of any vehicle, conveyance or on foot. If actual injury occurs; or even the risk of death or injury to any other person because of an accused’s flight from law enforcement is created while operating a motor vehicle or vessel over the waters of the State of New Jersey; you will be charged with 2nd Degree Eluding and presumptively sentenced to a period of incarceration. There are also mandatory periods of driver’s license suspension as well as additional fines. N.J.S.A. 2C:29-2 states in pertinent part:

1) Except as provided in paragraph (3), a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (2) Except as provided in paragraph (3), a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (3) An offense under paragraph (1) or (2) of subsection a. is a crime of the third degree if the person:

(a)Uses or threatens to use physical force or violence against the law enforcement officer or another; or

(b)Uses any other means to create a substantial risk of causing physical injury to the public servant or another…

b. Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L.1995, c.401 (C.12:7-71), on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person’s conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. In addition to the penalty prescribed under this subsection or any other section of law, the court shall order the suspension of that person’s driver’s license, or privilege to operate a vessel, whichever is appropriate, for a period of not less than six months or more than two years…

For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.

Nicholas Moschella is a former Municipal Prosecutor in more than 20 towns throughout Ocean and Monmouth Counties and is available at (732) 930-3482 for a FREE CONSULTATION.

Burglary

N.J.S.A 2C:18-2
Burglaries, and other criminal intrusion matters in the State of New Jersey, focus on situations where individuals are found to be present in homes, structures or properties where they are unlicensed to be. In addition to a person’s mere presence in or on these types of premises, there must exist a purpose or intent on the part of the actor to commit an offense in order for the crime to be charged as Burglary. Pursuant to N.J.S.A. 2C:18-2, a person is guilty of Burglary if, with the purpose to commit an offense therein or thereon:
(1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter;
(2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so; or
(3) Trespasses in or upon utility company property where public notice prohibiting trespass is given by conspicuous posting, or fencing or other enclosure manifestly designed to exclude intruders.

A “structure” is defined under N.J.S.A. 2C:18-1 as “any building, room, ship, vessel, car, vehicle or airplane, and also means any place adapted to overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present.”

In addition, while Burglary is generally a charge of 3rd Degree; punishable by a maximum of five (5) years in New Jersey State Prison, depending a variety of factors, it may be graded as a 2nd Degree Crime. Pursuant to subsection (b) of N.J.S.A. 2C:18-2; Burglary is a crime of the 2nd Degree if in the course of committing the offense, the actor:

(1) Purposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone; or
(2) Is armed with or displays what appear to be explosives or a deadly weapon.
Otherwise burglary is a crime of the third degree. An act shall be deemed “in the course of committing” an offense if it occurs in an attempt to commit an offense or in immediate flight after the attempt or commission.

Clearly, entering a home, structure or remaining on property without permission is the predicate act necessary for a charge of Burglary. However, there is much divergence in New Jersey Law as to what actions qualify as commission or intent to commit an offense while present in or on such structures or properties. The term “offense” has been held to literally mean any infraction under the Code of Criminal Justice in New Jersey; delineated under Title 2C of New Jersey Statutes Annotated. Intent to commit an offense can be inferred from a defendant’s conduct, the attendant circumstances involving their unlawful presence in such a structure as well as any witness testimony regarding same. Further, the specific offense committed, or type of injury inflicted upon any persons involved in the commission of the act will determine the Degree of Burglary a particular defendant is ultimately charged with, and will depend heavily upon a fact-based analysis of the evidence presented by the State. Several defenses to various areas of Burglary charges may be available to a particular defendant based upon the totality of the circumstances involved in the case. While no two cases are exactly alike, expertise and experience are needed to navigate through all possible defenses to a charge of Burglary. Call The Law Office of Nicholas A. Moschella, Jr., LLC at (732) 930-3482 24 Hours a day for a FREE CONSULTATION.

Unlicensed Entry of Structures; Criminal Trespass

N.J.S.A. 2C:18-3
Under N.J.S.A. 2C:18-3, a person may be found to be guilty of Criminal Trespass for merely entering, peering into and/or remaining in a structure, facility or upon land owned by someone other than the actor. Violations of this section of the Criminal Code may be either a 4th Degree Indictable Crime; punishable by up to18 Months in New Jersey State Prison, or either a Disorderly or Petty Disorderly Persons Offense. The statute calls for several factors that must be present before an individual may be found guilty under any applicable sub-section. It further delineates the grading of each individual offense, based upon the circumstances involved, the type of structure in question and/or the specific actions of a particular defendant. N.J.S.A. 2C:18-3 reads in pertinent part:
a. Unlicensed entry of structures. A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any research facility, structure, or separately secured or occupied portion thereof. An offense under this subsection is a crime of the fourth degree if it is committed in a school or on school property. The offense is a crime of the fourth degree if it is committed in a dwelling. An offense under this section is a crime of the fourth degree if it is committed in a research facility. Otherwise it is a disorderly persons offense.
b. Defiant trespasser. A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(1) Actual communication to the actor; or
(2) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(3) Fencing or other enclosure manifestly designed to exclude intruders.

c. Peering into windows or other openings of dwelling places. A person commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, he peers into a window or other opening of a dwelling or other structure adapted for overnight accommodation for the purpose of invading the privacy of another person and under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed.
d. Defenses. It is an affirmative defense to prosecution under this section that:
(1) A structure involved in an offense under subsection a. was abandoned;
(2) The structure was at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the structure; or
(3) The actor reasonably believed that the owner of the structure, or other person empowered to license access thereto, would have licensed him to enter or remain, or, in the case of subsection c. of this section, to peer.
Violations under this sub-section are highly fact-intensive and require a great amount of professional detail in their review. Cases involving all types of criminal trespassing under this section can be effectively negotiated from the original charge against a defendant to either a lesser included charge or a downgraded offense. As listed in subsection (d) of 2C:18-3, affirmative defenses exist to prosecutions under the statute that may be available to a defendant. With extensive experience in these types of cases, Nicholas Moschella; a former Municipal Prosecutor in over 20 towns throughout Ocean and Monmouth Counties is prepared to analyze and defend your matter. Call (732) 930-3482 today for a FREE CONSULTATION.

ASSAULT

Assault can be either what is known in New Jersey as a Disorderly Persons Offense for a Simple Assault; which subjects a person charged to six (6) months in Jail and up to a 1,000 fine, or an Aggravated Assault and be either a 4th, 3rd or 2nd Degree offense depending on the circumstances and/or the severity of any injuries sustained by the victim(s). Aggravated Assault charges may lead not only to a felony record following a conviction, but also to significant terms of incarceration with possible periods of parole ineligibility. More specifically, a conviction for a 2nd Degree Aggravated Assault carries what is known as the presumption of incarceration if convicted; as well as subjecting you to serve 85% of the total jail term pursuant to what is known as the No Early Release Act (N.E.R.A.). Nicholas Moschella is both a former Judicial Law Clerk and Municipal Prosecutor in over 20 towns throughout Ocean and Monmouth Counties. Call the Law Office of Nicholas A. Moschella, Jr., LLC today for a FREE CONSULTATION at (732) 930-3482.

Assault is found in our Criminal Code under N.J.S.A. 2C:12-1 et. al and explains the specific instances and circumstances that lead to each type of Assault charge as follows in pertinent part:

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.

b. Aggravated assault. 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…

…Aggravated assault under subsections b. (1) and b. (6) is a crime of the second degree; under subsections b. (2), b. (7), b. (9) and b. (10) is a crime of the third degree; under subsections b. (3) and b. (4) is a crime of the fourth degree; and under subsection b. (5) is a crime of the third degree if the victim suffers bodily injury, otherwise it is a crime of the fourth degree. Aggravated assault under subsection b.(8) is a crime of the third degree if the victim suffers bodily injury; if the victim suffers significant bodily injury or serious bodily injury it is a crime of the second degree. Aggravated assault under subsection b. (11) is a crime of the third degree.

There are also several instances that fall under section (b)(5) (removed above) that make an act of Simple Assault an Aggravated Assault if committed against specific people under certain circumstances. There are also Crimes for Assault by Auto or Vessel that may lead to the same types of penalties and jail time as an Assault as defined above. Clearly charges of this type are extremely serious and require a great deal of experience, knowledge and skill to defend against.

ASSAULT BY AUTO OR VESSEL

N.JS.A. 2C:12-1(C)

c. (1) A person is guilty of assault by auto or vessel when the person drives a vehicle or vessel recklessly and causes either serious bodily injury or bodily injury to another. Assault by auto or vessel is a crime of the fourth degree if serious bodily injury results and is a disorderly persons offense if bodily injury results. Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L.2003, c.310 (C.39:4-97.3) may give rise to an inference that the defendant was driving recklessly.

(2)Assault by auto or vessel is a crime of the third degree if the person drives the vehicle while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and serious bodily injury results and is a crime of the fourth degree if the person drives the vehicle while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and bodily injury results.

(3)Assault by auto or vessel is a crime of the second degree if serious bodily injury results from the defendant operating the auto or vessel while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) while:

(a)on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

(b)driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

(c)driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

Assault by auto or vessel is a crime of the third degree if bodily injury results from the defendant operating the auto or vessel in violation of this paragraph.

A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under subparagraph (a) of paragraph (3) of this subsection.

It shall be no defense to a prosecution for a violation of subparagraph (a) or (b) of paragraph (3) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be a defense to a prosecution under subparagraph (a) or (b) of paragraph (3) of this subsection that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.

(4)Assault by auto or vessel is a crime of the third degree if the person purposely drives a vehicle in an aggressive manner directed at another vehicle and serious bodily injury results and is a crime of the fourth degree if the person purposely drives a vehicle in an aggressive manner directed at another vehicle and bodily injury results. For purposes of this paragraph, “driving a vehicle in an aggressive manner” shall include, but is not limited to, unexpectedly altering the speed of the vehicle, making improper or erratic traffic lane changes, disregarding traffic control devices, failing to yield the right of way, or following another vehicle too closely.

As used in this section, “vessel” means a means of conveyance for travel on water and propelled otherwise than by muscular power.

d.A person who is employed by a facility as defined in section 2 of P.L.1977, c.239 (C.52:27G-2) who commits a simple assault as defined in paragraph (1) or (2) of subsection a. of this section upon an institutionalized elderly person as defined in section 2 of P.L.1977, c.239 (C.52:27G-2) is guilty of a crime of the fourth degree.

Call the Law Office of Nicholas A. Moschella, Jr, LLC for a FREE CONSULTATION on your matter today at (732) 930-3482.

Terroristic Threats.2C:12-3

Terroristic Threats is a crime of the 3rd Degree in New Jersey and carries a potential sentence of 3 – 5 years in New Jersey State Prison, as well as up to a $15,000 fine. These types of crimes are most frequently charged in Domestic Violence situations and account for a large number of underlying offenses that lead to the filing of a Temporary Restraining Order; or “TRO” as they are commonly referred. Many phrases that are not necessarily intended to be taken literally nor seriously; but instead are spoken or shouted during an angered or emotionally charged state unfortunately may qualify as terroristic threats under our statute, N.J.S.A. 2C:12-3; which states:

• 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.

Terroristic Threats often involve threatening to harm or kill a significant other or any individual during an argument, disagreement and/or sensitive situation. As strange and even unthinkable as it may seem, these types of situations may lead to having a permanent criminal record, probation, Final Restraining Orders issued against you and even jail in some cases. Call the Law Offices of Nicholas A. Moschella, Jr., LLC at (732) 930-3482 today for a FREE CONSULTATION on your matter.

ARRESTED FOR UNLAWFUL POSSESSION OF A WEAPON

If you have been arrested or charged with unlawful possession of a firearm in The State of New Jersey, you are subject to extraordinary consequences mostly regardless of the nature and circumstances you are found to have the weapon in your possession. Conceal and Carry permits do not exist in New Jersey but for extreme emergency exceptions; and possession of a firearm, whether legally owned and purchased can give rise to penalties including mandatory sentences to New Jersey State Prison. Crimes of these types are subject to what is known as “The Graves Act” in our State, and as such and pursuant to our Criminal Code, persons convicted of these 2nd or 3rd Degree Indictable Offenses can be required to serve a minimum of Five (5) Years in New Jersey State Prison; with 42 Months or 3 ½ Years of that Sentence for which you would not be eligible for Parole. Certain situations involving prior Indictable or Felony Convictions; Possession of or Intent to Distribute Controlled Dangerous Substances (CDS) and/or any aggravating factors surrounding the threatened use or purpose for possession a handgun or firearm can lead to additional charges of the 2nd Degree under the pertinent statutory subsections.

UNLAWFUL POSSESSION OF A FIREARM IN THE STATE OF NEW JERSEY

In order to avoid a conviction of these types of crimes and thereafter the harsh mandatory penalties as set forth above; a “waiver” of the Graves Act must be applied for and granted by the County Prosecutors Office. These exceptions are only granted under very limited and very specific circumstances, and require several technical and substantive legal procedures to be considered. Regardless if you have ever before been convicted of any Crime or Offense in New Jersey or any other State, the severity of being charged with one of the following enumerated Graves Act offenses requires immediate legal representation. Individuals with no prior criminal record who may otherwise eligible for diversionary programs such as Pre-Trial Intervention (PTI) in New Jersey; which would not only avoid incarceration but would ultimately lead to a dismissal of offenses charged, are prohibited from applying for same if charged with offense of the 2nd or 3rd degree under N.J.S.A. 2C:39-4 or N.J.S.A. 2C:39-5. Having an attorney to navigate through the defensible issues available; as well as prepare the most effective opportunity to avoid the stringent penalties associated with these crimes is paramount to your case. Call (732) 451-2283 today for a FREE CONSULTATION with The Law Office of Nicholas A. Moschella, Jr., LLC.

POSSESSION OF A WEAPON WHILE ENGAGED IN DRUG ACTIVITY – N.J.S.A. 2C:35-4.1

2C:39-4.1. Weapons; controlled dangerous substances and other offenses, penalties.

1. a. Any person who has in his possession any firearm while in the course of committing, attempting to commit, or conspiring to commit a violation of N.J.S.2C:35-3, N.J.S. 2C:35-4, N.J.S.2C:35-5, section 3 or section 5 of P.L.1997, c.194 (C.2C:35-5.2 or 2C:35-5.3), N.J.S.2C:35-6, section 1 of P.L.1987, c.101 (C.2C:35-7), section 1 of P.L.1997, c.327 (C.2C:35-7.1), N.J.S.2C:35-11 or N.J.S.2C:16-1 is guilty of a crime of the second degree.

b. Any person who has in his possession any weapon, except a firearm, with a purpose to use such weapon unlawfully against the person or property of another, while in the course of committing, attempting to commit, or conspiring to commit a violation of N.J.S.2C:35-3, N.J.S.2C:35-4, N.J.S.2C:35-5, section 3 or 5 of P.L.1997, c.194 (C.2C:35-5.2 or 2C:35-5.3), N.J.S.2C:35-6, section 1 of P.L.1987, c.101 (C.2C:35-7), section 1 of P.L.1997,c.327 (C.2C:35-7.1), N.J.S.2C:35-11 or N.J.S.2C:16-1 is guilty of a crime of the second degree.

c. Any person who has in his possession any weapon, except a firearm, under circumstances not manifestly appropriate for such lawful uses as the weapon may have, while in the course of committing, attempting to commit, or conspiring to commit a violation of N.J.S.2C:35-3, N.J.S.2C:35-4, N.J.S.2C:35-5, section 3 or section 5 of P.L. 1997, c.194 (C.2C:35-5.2 or 2C:35-5.3), N.J.S.2C:35-6, section 1 of P.L.1987, c.101 (C.2C:35-7), section 1 of P.L.1997,c.327(C.2C:35-7.1), N.J.S.2C:35-11 or N.J.S.2C:16-1 is guilty of a crime of the second degree.

d. Notwithstanding the provisions of N.J.S.2C:1-8 or any other provision of law, a conviction arising under this section shall not merge with a conviction for a violation of any of the sections of chapter 35 or chapter 16 referred to in this section nor shall any conviction under those sections merge with a conviction under this section. Notwithstanding the provisions of N.J.S.2C:44-5 or any other provision of law, the sentence imposed upon a violation of this section shall be ordered to be served consecutively to that imposed for any conviction for a violation of any of the sections of chapter 35 or chapter 16 referred to in this section or a conviction for conspiracy or attempt to violate any of those sections.

e. Nothing herein shall be deemed to preclude, if the evidence so warrants, an indictment and conviction for a violation of N.J.S.2C:39-4 or N.J.S.2C:39-5 or any other provision of law.

f. Nothing herein shall prevent the court from also imposing enhanced punishments, pursuant to N.J.S.2C:35-8, section 2 of P.L.1997, c.117 (C.2C:43-7.2), or any other provision of law, or an extended term.

POSSESSION OF A WEAPON FOR UNLAWFUL PURPOSE – N.J.S.A. 2C:35-4

a. Firearms.  
(1) Any person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree.
(2) Any person who possesses, receives or transfers a community gun is guilty of a crime of the second degree and shall be sentenced to a term of imprisonment by the court.  The term of imprisonment shall include the imposition of a minimum term.  The minimum term shall be fixed at one-half of the sentence imposed by the court or three years, whichever is greater and during which the defendant shall be ineligible for parole.  As used in this paragraph, “community gun” means a firearm that is transferred among, between or within any association of two or more persons who, while possessing that firearm, engage in criminal activity or use it unlawfully against the person or property of another.

b. Explosives.  Any person who has in his possession or carries any explosive substance with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree.

c. Destructive devices.  Any person who has in his possession any destructive device with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree.

d. Other weapons.  Any person who has in his possession any weapon, except a firearm, with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the third degree.

e. Imitation firearms.  Any person who has in his possession an imitation firearm under circumstances that would lead an observer to reasonably believe that it is possessed for an unlawful purpose is guilty of a crime of the fourth degree.

UNLAWFUL POSSESSION OF A HANDGUN – N.J.S.A. 2C:39-5

Unlawful possession of weapons. 

a. Machine guns.  Any person who knowingly has in his possession a machine gun or any instrument or device adaptable for use as a machine gun, without being licensed to do so as provided in N.J.S. 2C:58-5 , is guilty of a crime of the second degree.
b. Handguns.  
(1) Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in N.J.S. 2C:58-4 , is guilty of a crime of the second degree.  (2) If the handgun is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person it is a crime of the third degree.
c. Rifles and shotguns.  
(1) Any person who knowingly has in his possession any rifle or shotgun without having first obtained a firearms purchaser identification card in accordance with the provisions of N.J.S. 2C:58-3 , is guilty of a crime of the third degree.
(2) Unless otherwise permitted by law, any person who knowingly has in his possession any loaded rifle or shotgun is guilty of a crime of the third degree.
d. Other weapons.  Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.

CERTAIN PERSONS NOT TO POSSESS WEAPONS – N.J.S.A. 2C:39-7

2C:39-7 Certain persons not to have weapons.

a. Except as provided in subsection b. of this section, any person, having been convicted in this State or elsewhere of the crime of aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, aggravated sexual assault, sexual assault, bias intimidation in violation of N.J.S.2C:16-1 or endangering the welfare of a child pursuant to N.J.S.2C:24-4, whether or not armed with or having in his possession any weapon enumerated in subsection r. of N.J.S.2C:39-1, or any person convicted of a crime pursuant to the provisions of N.J.S.2C:39-3, N.J.S.2C:39-4 or N.J.S.2C:39-9, or any person who has ever been committed for a mental disorder to any hospital, mental institution or sanitarium unless he possesses a certificate of a medical doctor or psychiatrist licensed to practice in New Jersey or other satisfactory proof that he is no longer suffering from a mental disorder which interferes with or handicaps him in the handling of a firearm, or any person who has been convicted of other than a disorderly persons or petty disorderly persons offense for the unlawful use, possession or sale of a controlled dangerous substance as defined in N.J.S.2C:35-2 who purchases, owns, possesses or controls any of the said weapons is guilty of a crime of the fourth degree.

b. (1) A person having been convicted in this State or elsewhere of the crime of aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, aggravated sexual assault, sexual assault, bias intimidation in violation of N.J.S.2C:16-1, endangering the welfare of a child pursuant to N.J.S.2C:24-4, stalking pursuant to P.L.1992, c.209 (C.2C:12-10) or a crime involving domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19), whether or not armed with or having in his possession a weapon enumerated in subsection r. of N.J.S.2C:39-1, or a person having been convicted of a crime pursuant to the provisions of N.J.S.2C:35-3 through N.J.S.2C:35-6, inclusive; section 1 of P.L.1987, c.101 (C.2C:35-7); N.J.S.2C:35-11; N.J.S.2C:39-3; N.J.S.2C:39-4; or N.J.S.2C:39-9 who purchases, owns, possesses or controls a firearm is guilty of a crime of the second degree and upon conviction thereof, the person shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term, which shall be fixed at five years, during which the defendant shall be ineligible for parole. If the defendant is sentenced to an extended term of imprisonment pursuant to N.J.S.2C:43-7, the extended term of imprisonment shall include the imposition of a minimum term, which shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall be ineligible for parole.

(2) A person having been convicted in this State or elsewhere of a disorderly persons offense involving domestic violence, whether or not armed with or having in his possession a weapon enumerated in subsection r. of N.J.S.2C:39-1, who purchases, owns, possesses or controls a firearm is guilty of a crime of the third degree.

(3) A person whose firearm is seized pursuant to the “Prevention of Domestic Violence Act of 1991,” P.L.1991,c.261 (C.2C:25-17 et seq.) and whose firearm has not been returned, or who is subject to a court order prohibiting the possession of firearms issued pursuant to the “Prevention of Domestic Violence Act of 1991,” P.L.1991,c.261 (C.2C:25-17 et seq.) who purchases, owns, possesses or controls a firearm is guilty of a crime of the third degree, except that the provisions of this paragraph shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty.

c. Whenever any person shall have been convicted in another state, territory, commonwealth or other jurisdiction of the United States, or any country in the world, in a court of competent jurisdiction, of a crime which in said other jurisdiction or country is comparable to one of the crimes enumerated in subsection a. or b. of this section, then that person shall be subject to the provisions of this section.