Stephen A. Gravatt, Esq.
Attorney
565 NJ 35
Middletown, New Jersey 07748
(732)-337-7922
email: pipking@comcast.net
As an experienced criminal lawyer I believe the best definition of probation is that probation is a penalty permitting a defendant (convicted of a crime) to serve a criminal sentence without serving jail time, conditioned upon his or her compliance with Terms and Conditions of Probation set forth in N.J.S.A. 2C:45-1. As any attorney can advise terms and conditions of probation include regular reporting to probation officer as directed, not being charged with any subsequent criminal offenses, maintaining employment, cessation of illegal drug use, possible drug counseling and random urine monitoring)
HOW CAN I RECEIVE PROBATION INSTEAD OF JAIL TIME?
When a defendant who has been charged with a criminal offense either pleads guilty to charges or is found guilty of charges by the trier of fact, i.e., judge or jury,at conclusion of trial, the charges ripen into a conviction. A finding of guilt ends the time within which one may present evidence and/or argument that he/she is innocent of the charges. Every experienced criminal lawyer knows that a finding of guilt triggers a subsequent procedural process known as sentencing, i.e., sentencing hearing at which time the judge hearing the case must weigh the relevant factors, review the sentencing guidelines and decide which penalties shall be imposed. Every criminal attorney also knows that Sentencing Guidelines enacted by the Legislature provide a range of penalties from which the judge may impose jail time, noncustodial probation for a term of one (1) year to five(5) years, in lieu of jail time, plus monetary penalties and so forth. While there are crimes so serious (think murder, armed robbery, rape, arson, etc…) that the imposition of probation is not available, conviction for lesser crimes can allow an attorney to argue that the defendant should be sentenced to noncustodial probation. Let’s assume sentencing guidelines the the gradation of the crime we are talking about does allow a a lawyer to argue that the judge should in his discretion consider imposing noncustodial probation instead of jail time (think small amounts of CDS-drugs for personal use).
HOW DOES THE COURT DECIDE IF I HAVE TO BE GIVEN JAIL TIME?
After a finding of guilt has been entered but before sentence has been imposed, a presentence investigation is conducted by the County Prosecutor and Probation Department to determine whether this particular defendant is a good candidate for compliance with the Terms and Conditions of Probation. State’s attorneys known as prosecutors evaluate the defendant’s criminal history, current employment status and living conditions, background of immediate family members, drug use history. Those findings are memorialized in a presentence report which is distributed to the sentencing judge, the prosecutor and the defendant’s attorney. The presentence report usually contains a recommendation as to what the State believes is the appropriate sentence the judge should impose. Attorneys then argue aggravating and mitigating factors, i.e., reasons why defendant should be incarcerated versus reasons why noncustodial probation is sufficient to protect the public health safety welfare from future acts of this defendant.
WHAT ARE THE TERMS AND CONDITIONS WITH WHICH I MUST COMPLY?
Terms and Conditions of Probation are set forth in N.J.S.A. 2C:45-1.
They include:
- A probationer must physically report to his probation officer as directed; and
- A probationer must not be charged with any new crimes, offenses, charges, during the term of probation, and if charged by law enforcement, must report those new charges to his probation officer; and
- A probationer must remain employed, or if unemployed, must become employed; and
- A probationer convicted of a CDS-drug crime must undergo drug counseling and random urine monitoring; and
- A probationer can be Ordered to undergo psychiatric and/or medical treatment; and
- A probationer must pay all fines, monetary penalties, monitoring/testing fees prior to termination of probation.
WHAT HAPPENS TO ME IF I FAIL TO COMPLY WITH THE TERMS AND CONDITIONS?
Failure to comply with any of the Terms and Conditions of Probation as set forth in N.J.S.A. 2C:45-1 and/or by the sentencing judge can result in Violation of Probation (VOP).
Violation of probation VOP is typically instituted by defendant’s probation officer by means of alleging noncompliance with required conduct (think failure to report to probation, failure to submit to urine monitoring, failure to stay crime free). If you have been charged with violation of probation VOP you likely do need to retain a criminal lawyer to defend.
Because a finding of guilt for violation of probation VOP can result in loss of liberty, i.e. jail time, the law of due process requires that an accused defendant be given a hearing as to whether has has, or has not, committed VOP and as to why defendant does not deserve to be incarcerated for violating the terms and conditions of probation. This where the skills of your criminal attorney can help you. The reasons for your conduct can be explained away, mitigating the State’s case. Your lawyer can speak with your probation officer and prosecutor with design to settle the case with an agreed upon resolution.
In the event that your attorney cannot successfully resolve the case a plenary hearing will be held where each side puts proofs on. At conclusion of the proceedings a judge can either impose revocation of probation with jail time for the entire term defendant could originally have been sentenced to without credit for time served during probation, or impose an additional term of probation, or end probation altogether without imposing jail time.
DO I NEED TO RETAIN AN ATTORNEY FOR MY VIOLATION OF PROBATION CHARGES?
Yes.
A violation of probation (VOP) can expose you to the imposition of jail time for a duration which could have been imposed under the original sentence without any credit for the time served as a probationer. For one third degree crime, and there are often multiple crimes, that is a minimum three (3) maximum five (5) years jail time. Most people understand that this constitutes significant exposure which one should employ efforts to avoid.
I have handled many many violation of probations VOPs and using my experience as a criminal lawyer have often times been able to help my clients avoid jail time by contacting his or her probation officer, contacting the prosecutor handling the file, arguing standards set forth in case Law and by arguing mitigating factors before the judge.
If you are facing a VOP, I urge you to consult with an experienced attorney about application of the Law to your particular facts and circumstances. Please contact me today for a free initial consultation, in depth analysis and a no nonsense strategy to help you avoid jail time, at (732)-337-7922.
