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Your Rights Once You Are Arrested

A. Miranda Rights

Once you are placed under arrest, the police may want to interview you in reference to your involvement in a given crime. If they wish to do so while you are in custody, the US Supreme Court requires the police to notify you of the following rights as per their decision in Miranda v. Arizona, 384 U.S. 436 (1966):

  1. You have the right to remain silent and to not answer questions
  2. Anything you say can and will be used against you in court
  3. You have the right to an attorney and to have that attorney present during questioning
  4. If you cannot afford an attorney, one will be provided to you free of charge

After these rights are explained to you, the police officer who read the rights to you will ask you whether you understood your rights and whether you wish to speak with the police with the rights in mind. Typically, most police agencies will have a Miranda rights waiver form in English but if you need an interpreter, most police agencies will have a chart with languages and they will use the Language Line service in order to provide a certified interpreter to you. With the advent of computers, the police should be able to translate their Miranda rights waiver form into your native language.

Additionally, the US Supreme Court ruled in Berghuis v. Thompkins, 130 S.Ct. 2250 (2010) that in order for your rights to take effect, you must clearly and verbally state that you wish to invoke your rights. For example, you must say, "I want to remain silent and I want a lawyer" in order for police to stop their questioning.

B. Rights Under the Vienna Convention on Consular Relations

If you are not a US Citizen, then certain rights attach under the Vienna Convention on Consular Relations. If you are a citizen/national/subject of certain nations, then the police must notify the embassy or consulate of your home country (http://travel.state.gov/law/consular/consular_5125.html) after you are arrested. If you are a citizen or national of any other country besides the ones listed on the Mandatory Notification list, then the police will give you the option whether or not you want your home country's embassy or consulate notified. However, having the police notify your home country's embassy or consulate will allow them to obtain legal and other forms of assistance to you. However, it is important to note that even if the police fail to give you your consular warnings, there is no penalty of suppression of evidence as per the US Supreme Court rulings in Brerard v. Greene, 523 U.S. 371 (1998) and Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).

C. Trial Process in New Jersey

Investigation--->Arrest--->Arraignment--->Pre-trial motions--->Trial--->Verdict (If acquitted, then the process stops here)---->Sentence---->Appeal (if your appeal[s] are unsuccessful, then you continue to serve your sentence for the offense[s] that you were convicted of)

If your case involves a Disorderly Persons or Petty Disorderly Persons charge alone, then it will be heard in the Municipal Court where the offense allegedly took place. However, if you are charged with a crime of any degree under the New Jersey Statutes Annotated (NJSA), the matter will go to a preliminary hearing in the Municipal Court and then transfer over to the Superior Courthouse in the county where the offense was allegedly committed.

D. Immigration Consequences of a Plea or Conviction

If you are convicted of or plead guilty to (a guilty plea has the same effect as a criminal conviction) to a crime of any degree, a disorderly persons, petty disorderly persons, in the NJSA or any offense involving moral turpitude as defined in the US Department of State Foreign Affairs Manual (http://www.state.gov/documents/organization/86942.pdf), the US Department of Homeland Security, Immigration and Customs Enforcement (DHS-ICE) can institute deportation proceedings against you. If you are accused of a crime of violence, moral turpitude, or involving narcotics or human trafficking, then you are eligible for automatic deportation proceedings regardless of whether or not you were convicted of the charges you stood trial for. For criminal cases with immigration consequences, you will need a criminal lawyer who also specializes in immigration law.

Your attorney is required to notify you of the immigration consequences of a criminal conviction or guilty plea as per the US Supreme Court ruling in Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

The State of New Jersey participates in the Secure Communities program administered by DHS. Once you are arrested, your fingerprints are automatically shared with the Federal Bureau of Investigation (FBI) and DHS-ICE. If you already have been arrested on a previous occasion, your fingerprints will be on file and as explained above, DHS-ICE can place a detainer on you and begin deportation proceedings.

Upon removal from the United States of America (USA), it is illegal to re-enter the USA as per the Immigration and Nationality Act (Title 8, US Code Section 1326).

E. Sentencing

If you are convicted of or plead guilty to an offense in New Jersey, there are several possible intervention options.

  1. Probation- Under the supervision of the Superior Court of New Jersey, the Defendant lives in society with certain terms and conditions for a period of time determined by the court. If you are a noncitizen, then a sentence of probation is enough to trigger deportation proceedings because it is a restraint on your liberty.
  2. Pre-Trial Intervention (PTI)- If you are a first-time offender charged with an indictable offense under NJSA, then your attorney can make a motion to have you placed in the PTI program. This is conditioned on factors outlined in NJ Courts Rule 3:28 (http://www.judiciary.state.nj.us/rules/r3-28.htm). If the defendant successfully completes the PTI program, it is possible to have the conviction vacated by the Superior Court of New Jersey.
  3. Parole- When a defendant is sentenced to a term of imprisonment, it is possible for a defendant to earn eligibility for parole so long as one is not convicted of an offense for which one is rendered ineligible for parole. This parole lasts for the remainder of your sentence and you live under a state of conditioned liberty as if you are on probation but if you commit a violation of the terms and conditions of parole, you can be sent back to a correctional facility.
  4. Expungement- If you were convicted of an eligible offense, you can have your lawyer file a motion with the Superior Court of New Jersey to have your conviction expunged after a certain amount of time has passed since the conviction. Once the record is expunged, the criminal conviction will not be on your FBI record but there will still be a record of your arrest.
  5. Conditional Discharge (CD)- Available only for disorderly persons offenses or indictable offenses downgraded to Municipal Court. The charge is conditionally dismissed without a plea. You are eligible for this program as long as you have no prior record of a diversion program such as PTI as per NJSA 2C:36A-1. If you violate the terms of the CD, the original complaint is reinstated and you will be required to defend the charge(s) in court. The term of supervision typically ranges from one (1) to three (3) years and the court can also order you to submit to random drug tests.

F. Post-Sentencing Matters

  1. Probation/Parole Violation- While under probation/parole supervision, the US Supreme Court ruled in Alabama v. Shelton, 535 U.S. 654 (2002) that persons who are under a suspended sentence must be provided with counsel at violation hearings.
  2. Probation/Parole Searches- Under the US Supreme Court rulings in United States v. Knights, 534 U.S. 112 (2001) and Samson v. California, 547 U.S. 843 (2006), probationers and parolees that are under supervision have diminished 4th Amendment protections against unreasonable searches and seizures. If the conditions of probation/parole include a provision that you will submit to warrantless searches of your person, place of residence, personal effects, and place of employment, then you must submit to these requests.

Please contact our firm today so that we can help you to defend your rights and receive justice! At Grigaite & Abdelsayed, LLC, we look forward to working with you to meet your legal needs. We can help you with any criminal matter in New York and/or New Jersey on both the State and Federal levels.

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