‘Brimage’ Guidelines / Drug Reform Act, N.J.S.A. 2C:35

Under the Drug Reform Act, certain mandatory minimum prison sentences are imposed on drug offenders and are applicable to a number of violations, thus:

• Where an accused is charged with the distribution of illegal drugs within 1000 feet of a school or possession of an illegal substance with the intent to distribute within 1000 feet of a school, the defendant will be mandated to serve between 1/3 to 1/2 of his prison term or one year—whichever is greater—without the possibility of parole.  In addition, the accused may be required to pay a fine up to $150,000. 
• If the defendant was convicted for either manufacturing, distributing or dispensing drugs, he or she shall be sentenced to a parole ineligibility period between 1/3 to 1/ 2 of the initial sentence.  The court may also impose a fine up to $500,000 as well. 
• A person 18 years old or older who uses, solicits, directs, hires or employs a minor (17 years of age or younger) to manufacture, distribute, or dispense drugs shall serve an equivalent of 1/3 to 1/2 of his prison sentence before becoming eligible for parole.  A fine may also be imposed, but shall not exceed $500,000 or five times the street value of the controlled substance involved. 
• Waiver: The mandatory period of ineligibility required under the Drug Reform Act may be waived or reduced in accordance with a negotiated agreement.  Similarly, where there has been a trial and the defendant and prosecution have reached a post-conviction agreement, which allows for a less severe sentence or parole eligibility period, that agreement will control. 
• Crimes that Trigger ‘Brimage’:
  • Possession with the intent to distribute in a school zone
  • First degree possession with the intent to distribute
  • Extended Term
  • Use of Juvenile in Drug Distribution
  • Drug Production Facility
  • Leader of Narcotics Trafficking Network
  • Note, however, Public Housing/Public Park (2C:35-7.1) does NOT trigger ‘Brimage’.

Graves Act Offenses, N.J.S.A. 2C: 43-6(c)

The Graves Act is triggered when a defendant uses a firearm against the person of another or was in the possession of a firearm while in the course of committing or attempting to commit any of the below offenses:

• Possession of a Weapon for Unlawful Purpose
• Murder
• Aggravated Manslaughter / Manslaughter
• Kidnapping
• Aggravated Sexual Assault
• Aggravated Criminal Sexual Contact
• Robbery
• Burglary
• Escape

PROTECT YOUR FUTURE THROUGH EXPUNGEMENTS

          Every year thousands of people are arrested and charged with crimes. Some of those individuals will end up with a criminal record and others will not. However, all of those individuals will more than likely, at some point, be eligible to have those records removed from the public files. Most great employment opportunities require a prospective employee submit to a background check to ensure that the person does not have a criminal history. Many people only then learn that there is something negative contained in their background.

          Many people do not know that under the laws of New Jersey their criminal records can be expunged and cleared. The law allows individuals to file a petition for expungement to remove any derogatory information from a persons record including: complaints, warrants, arrests, rap sheets, photographs and fingerprints. For municipal court convictions a person must wait five years to file an expungement petition. For superior court convictions a person must wait ten years. Arrests and complaints that were dismissed or frivolous can be expunged immediately.

          The law in this area is not simple because there are different time frames for different offenses and there are other conditions that may also be required for a person to be eligible for an expungement. Individuals should contact an attorney to discuss the particulars of their case to determine their eligibility. Moreover, the use of the expugement process can assist persons with clearing up their record so that it is not a hindrance to better employment or other significant opportunities in their lives.         

Article by Montell Figgins who practices criminal law in Newark, NJ. He can be reached at 973-242-2425.

No Early Release Act (NERA), N.J.S.A 2C:43-6b

New Jersey’s “No Early Release Act” requires a convicted felon to serve at least 85% of his sentence before becoming eligible for parole, if the felon was sentenced for a first or second degree offense for any of the following violent crimes:

• Murder
• Aggravated Manslaughter
• Manslaughter
• Vehicular Homicide
• Aggravated Assault
• Disarming a Law Enforcement Officer
• Kidnapping
• Aggravated Sexual Assault
• Sexual Assault
• Robbery
• Carjacking
• Aggravated Arson
• Burglary
• Extortion
• Booby Trap in a manufacturing or distribution facility
• Drug-induced Death (strict liability)
• Terrorism
• Producing or Possessing chemical weapons/biological agents/nuclear or radiological devices

Gradation of Offenses in New Jersey, N.J.S.A. 2C:43-6

Offenses are categorized in the criminal code according to the severity of the crime and are divided into four degrees, with the first-degree being the most serious and the fourth degree being the least serious.  Each degree corresponds with a specific sentencing range and a sentencing judge is afforded some latitude to impose an appropriate term so long as it falls within the determinate range.  The ranges of incarceration, including sentences for disorderly persons and petty disorderly offenses as contemplated under Title 2C, are as follows:

• First degree:                            10 – 20 years
• Second degree:                       5 – 10 years
• Third degree                            3 – 5 years
• Fourth degree:                         0 – 18 months
• Disorderly Persons:                 0 – 6 months
• Petty Disorderly Persons:       30 days