Probation: An Introduction
One of the options available to the New Jersey sentencing court was, in lieu of imprisonment, to impose probation. The period of this probation was supposed to be a minimum of one year, and a maximum of five years. Probation can sometimes be extended. It can also sometimes be terminated early.
New Jersey probation always comes with conditions. Examples of conditions are to report to a probation officer from time to time; to not violate laws; to pay fines or other costs; to refrain from use of illicit substances; or to obtain and maintain employment. One of the permissible conditions, spelled out in N.J.S. 2C:45-1b(3) is to undergo available medical or psychiatric treatment. In our present Covid-19 world, an Ohio court ordered a defendant as a condition of probation to be vaccinated. To date, New Jersey has not gone that far. Compliance with imposed conditions is monitored by a probation case worker. So long as you remain in compliance with imposed conditions, probation continues uneventfully. When conditions of probation are violated, problems arise.
Procedure on a Violation of Probation Charge
Upon discerning that you violated one or more terms of probation, the probation department case worker can file a Violation of Probation (“VOP”) complaint with the court. This complaint specifies the precise ways in which you are alleged to have violated the conditions of your probation. The complaint requires that you attend a court hearing before a judge. The judge will often, but not always, be the same judge that imposed the original sentence of probation. If you fail to appear, the judge will normally issue a bench warrant for your arrest.
This VOP hearing consists of two parts. In the first part, the judge determines whether you actually did violate your probation. The second part is sentencing. It occurs only if the judge finds a violation of probation in the first part. You are entitled to have a lawyer at both parts of your VOP hearing.
The Violation of Probation Trial
The first part, as just mentioned, consists of determining of whether you violated probation. That VOP determination is made in either of two ways. The first way is that you plead guilty to violating probation. If you plead guilty, the VOP hearing then moves on immediately to the second part. The other alternative, of course, is that you plead not guilty to violating probation. In that situation, the court conducts a VOP trial. At this trial, the State is represented by the county prosecutor, not the probation officer. Both the State and you have the right to present and to cross examine witnesses.
The VOP trial that the judge conducts differs from trial of the original offense in several important ways. Firstly, the finder of fact in New Jersey Violation of Probation hearings is the judge herself. You have no right to trial by jury. A second difference is standard of proof. Under the original indictment, accusation, or complaint, the State was required to prove each element of the alleged offense beyond a reasonable doubt. In violation of probation hearings, however, the State is required to prove the charge by only a “preponderance of the evidence.” That's just a twenty-five cent expression the court uses that means more probable than not. It is a much lower standard of proof than “beyond a reasonable doubt.” Still another difference at this VOP trial is that hearsay evidence is permitted.
Despite the lower standard of proof (prepondenance of the evidence) and allowance of hearsay, VOP defenses may be available. These defenses will sometimes require a detailed legal analysis. One example of this might be the order described above that the defendant receive Covid-19 vaccination. As mentioned, the New Jersey probation statute, N.J.S. 2C:45-1b(3), allows a judge to order available medical treatment as a condition of probation. A defendant can argue that vaccination is not treatment. Treatment means response to a condition. Unless a defendant actually has Covid-19 (in which case vaccination is inappropriate), they do not have a condition. What they have, rather, is the absence of a condition. The defense, then, would be that the probation statute does not authorize the court to require treatment for a condition that does not exist. Criminal Lawyers in New Jersey™ believe this defense has merit. No New Jersey court has put that belief to the test.
Violation of Probation Sentencing
Upon finding a Violation of Probation, either by guilty plea or trial, the hearing enters the sentencing phase. Sentencing typically occurs immediately upon conclusion of the guilt phase. Before the judge imposes sentence, you are afforded the opportunity to address the court, either yourself, through counsel, or both. Remarks to the court can explain the circumstances of the violation. They can suggest why one particular sentence may be more appropriate than another. The prosecutor and the case worker are also invited to address the court on the subject of sentence.
The sentencing judge has many options. She can continue probation. She can impose new conditions of probation, or remove conditions previously imposed. She can extend the period of probation. She can terminate the probation entirely. And, most ominously, she can resentence you completely. This resentence may consist of a term to be served, either in the county jail, or in the New Jersey State Prison system. If the judge chooses to impose a prison sentence, she is no longer limited by the terms of any previous plea bargain. Rather, the judge can impose whatever sentence she could have imposed for the offense in question. At sentencing on a New Jersey Violation of Probation, you are no longer entitled to the benefit of any original plea bargain. Thus if the prison exposure on the original crime was five years, but you were sentenced originally to probation, the judge can now impose a prison sentence of five years. You receive no credits for time on probation. The only time credits you get towards your new sentence is time you served on this charge while awaiting trial.
Appeals from a Violation of Probation Determination
If you are dissatisfied with the outcome of a Violation of Probation hearing, you can appeal. You can appeal the finding of Violation of Probation; you can appeal the VOP sentence; or you can appeal both. As with the original sentence, you have forty-five days in which to file your Notice of Appeal. If you lack funds to appeal, you can be represented by the Office of the Public Defender.
We Can Help You
Allan Marain is a New Jersey Violation of Probation lawyer. He has represented numerous defendants charged with violations of probation. He understands the process thoroughly. And he is attuned to the sensitive issues involved. If you have been charged, or may be charged, with a Violation of Probation in New Jersey, call him. He can review your options with you, and assist you in making the best response.