Freehold NJ Pretrial Release Attorney
The entire terrain for pretrial release and bail dramatically changed with the adoption of the New Jersey Justice Reform Act (“the Act”). The prior landscape was tied to a system where either cash or bond was posted in order to bail someone out following their arrest on a criminal offense. The new system discourages money bails in favor of pretrial release on monitoring and reporting conditions that will be discussed later. The curveball contained in the Act is the unrestricted ability of the Monmouth County Prosecutor’s Office to file a motion to detain and this automatically results in the accused continuing in the custody of the county jail until a detention hearing can be conducted. The key to avoiding pretrial detention is to hire an attorney immediately following an arrest the prosecutor can be persuaded not to file a detention motion. Early involvement can also ensure that you are thoroughly prepared at the detention hearing so that your chances of pretrial release (i.e. what used to be called bail) are maximized.
Our firm, the Law Offices of Jonathan F. Marshall, is located directly across from the Monmouth County Courthouse in Freehold and features a team with a heavy record of success in securing pretrial release. We can offer unique credentials that include:
- Over two hundred (200) years of combined experience defending indictable crimes (i.e. first, second, third and fourth-degree) and disorderly persons offenses in Monmouth County
- Ten lawyers that dedicate their practices exclusively to criminal defense
- Former Monmouth County Prosecutors that have served in key roles over their tenures such as Director of Major Crimes, Homicide, Special Operations, Juvenile and even the entire Trial Division
- Certified criminal trial attorneys
For immediate assistance from an attorney at the firm anytime 24/7, contact our Freehold Office. We can be reached at (732) 462-1197 for a free consultation.
Stage 1: Procedure for Pretrial Release Following an Arrest in Monmouth County?
Whenever someone is charged with a criminal offense a complaint is issued. If that complaint is issued on a summons, commonly referred to as a summons complaint, the accused is processed, handed a summons, and free to go. When a complaint is issued on a warrant, referred to as a warrant complaint, the situation is much more different. The defendant must be taken into custody, processed at the police station, and taken to the Monmouth County Correctional Institute where he/she will be held until an initial appearance before a judge can be conducted. This typically takes place at a satellite courtroom at the jail within forty-eight (48) hours.
Pretrial services must prepare a computerized risk assessment report known as a Public Safety Assessment (“PSA”) prior to every initial appearance. A PSA measures two risks: (1) risk of re-offending if released from custody (i.e. new criminal activity or NCA); and (2) risk of not appearing or obstructing prosecution (i.e. failure to appear or FTA). These two factors are scored on a scale of 1 to 6 with 1 being the lowest risk and 6 being the highest. The PSA must also provide a recommendation in terms of release and Pretrial Monitoring Level (“PML”).
Below is the guide issued by the New Jersey Administrative Office of the Courts for Pretrial Services to use in making recommendations for or against pretrial release. PML1 requires monthly phone reporting to Probation. PML2 requires once a month reporting in person and once a month by telephone. PML3 involves weekly monitoring. PML3 Plus adds a requirement for electronic GPS monitoring, home detention, or both. At the other extreme is a ROR, which means the defendant will be released on their own recognizance without any conditions.
Stage 2: Litigating A Detention Motion Filed By the Monmouth County Prosecutor’s Office
As previously stated, the prosecutor can move to detain an individual and that automatically results in the defendant remaining in custody until a detention hearing can be conducted. This proceeding is supposed to occur within three (3) business days of the motion being filed. The only restriction on the prosecutor’s ability to file a motion to detain is that one of the following applies:
- Any crime of the first or second degree enumerated under subsection d of N.J.S.A. 2C:43-7.2;
- Any crime carrying an ordinary or extended term of life imprisonment;
- Any crime at all, if the defendant has previously been convicted of two or more offenses listed in the prior two paragraphs;
- Any crime enumerated under paragraph (2) of subsection b of N.J.S.A. 2C:7-2 or crime involving human trafficking (N.J.S.A. 2C:13-8) where the victim is a minor, or endangering the welfare of a child under N.J.S.A. 2C:24-4;
- Any crime enumerated under subsection c of N.J.S.A. 2C:43-6;
- Any crime or offense involving domestic violence as defined in N.J.S.A. 2C:25-19a; or
- Any other crime for which the prosecutor believes there is a serious risk that: (a) the defendant will not appear in court; (b) the defendant will pose a danger to another person; or (c) the defendant will obstruct or attempt to obstruct justice.
As a practical matter, there is almost nothing to prevent the prosecutor from proceeding in this manner since category 7 basically provides full discretion.
Who Has The Burden of Proof at a Detention Hearing? The general rule is that every defendant should be afforded pretrial release. Not surprisingly, the prosecutor must demonstrate, by clear and convincing evidence, that there are no conditions of release that would protect the public and ensure that the appearance of the defendant in court. This obviously is a high burden of proof for the state to overcome although judges can get skittish in more serious cases or where the defendant’s prior criminal record is extensive. The presumption in favor of pretrial release shifts and creates a presumption of detention where the defendant is charged with murder or another offense that carries life imprisonment in the event of a conviction.
What Factors Are To Be Considered In Deciding the Detention Motion? N.J.S.A. 2C:162-20 outlines those factors that should be considered in determining whether there are any conditions that will reasonably assure the defendant’s appearance in court and the safety of the public in the event that he/she is granted pretrial release. The court should consider:
- Nature and circumstances of the offense charged;
- Weight of the admissible evidence against the defendant;
- History and characteristics of the defendant, including character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings;
- Whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or on release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state;
- Nature and seriousness of the danger posed to the public if the defendant is released;
- Nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process if the defendant is released; and
- Recommendation of the pretrial services program.
The defendant has the opportunity to present his/her defense to the motion with the benefit of an attorney. They are also entitled to discovery so that they know what facts the prosecutor can legitimately present (e.g. police report) in the case to support the charges. Live testimony from witnesses, cross-examination, and documentary evidence can also be presented at the detention hearing. The court must decide, after consideration of the factors previously set forth and the evidence presented, whether or not the defendant should be released until trial. Again, the court must find that there are no conditions that would adequately protect the court system and public safety before it can grant a motion to detain.
Why Are Detention Motions Filed So Often in Gun Cases?
While someone who scores a 1/1 on their PSA would assume they would be released at an initial appearance in a criminal case, things aren’t that simple. The Attorney General of the State of New Jersey has issued a directive that county prosecutors move to detain anyone who has been arrested for possession of an illegal handgun. The result of this mandate is that a detention motion is filed in just about every handgun case filed in Monmouth County.
Is There Some Special Rule for Pretrial Detention When a Case Involves Domestic Violence Charges?
A disorderly persons offense for simple assault, harassment or the like will typically be issued on a summons so that a defendant is never formally taken into custody. The situation is different, however, when the arrest stems from an incident of domestic violence. Most of the time these charges are filed on a warrant complaint and this results in the need for an initial appearance before a judge which can cause the accused to remain in custody for as much as forty-eight (48) hours. You should also know that NJ Court Rule 3:4A(a) allows the prosecutor to file a motion to detain even though the underlying charge is a disorderly persons offense.
Monmouth County Bail Hearing Attorney
Bail reform has obviously changed the process for pretrial release throughout the state. The procedure to be followed once someone is arrested is more complicated and also comes with the unbridled ability for the prosecutor to apply for pretrial detention until trial. Hiring a lawyer who is knowledgeable in this area of criminal law and who possesses a track record of success at detention hearings in Freehold New Jersey is exactly what is needed to navigate this process. The attorneys at the Law Offices of Jonathan F. Marshall have these qualifications and are ready to assist you immediately. Call 877-450-8301 to speak to a lawyer in a free initial consultation.