Newsletter - Fall 1999
Justice and Your ChildAlfred V Gellene, Esq.
Fredric F. Azrak, Esq. |
As parents, we all learn to live with our fears for our children. We hope that they will grow up straight and true, will have good friends and develop a sense about what is right and wrong and act accordingly. Realistically, we know that no matter how much we yearn to protect them, growing up means growing independent, making many of their own decisions, experimenting with life. Sometimes children, for reasons which are certainly beyond the scope of this article, do things in violation of the law, whether it be drugs, shop-lifting, fights and arguments with their associates or adults or even acts of sexual assault. And, like adults, there are occasions when children are falsely accused-whether through mistaken identity, incorrect assumptions about what their presence at the scene of an offense means, or an erroneous interpretation of acts in which the juvenile engaged. When and if a child is arrested, parents should know what the consequences of these acts might be for their child and what can be done to help them.
The law in New Jersey provides that persons under the age of 18 years are presumably not fully responsible for their acts or, that it would be unfair or unwise to impose the full impact of the law against them for what might just have been a youthful mistake done without full understanding of the consequences. As a result, special courts and procedures are m place to balance the need to protect society from the harmful acts of children as well as the need to protect the children themselves. These courts are commonly known as the Juvenile Courts.
In New Jersey there are two ways in which a child might come under the jurisdiction of the Juvenile Court. The first instance is if the minor is charged with the commission of an act which, if he or she was an adult, would constitute a crime or offense under the laws of the State. Any charge against a child alleging the commission of a crime or the violation of an ordinance or regulation (with the exception of the motor vehicle laws) must be heard in the Juvenile Courts. This court provides the child with protection under the juvenile statutes which instruct the court to make dispositions of children termed "delinquent", with a view toward their rehabilitation. (This is as opposed to adult criminal laws which take as their purpose the punishment of offenders.)
The trade-off is that the juvenile is denied the right to a jury trial Otherwise, all of the procedural protections of the Constitution remain in full force, including, but not limited to: due process, the right against self-incrimination, the right against unreasonable searches and seizures, the right to counsel, and the right to be presumed innocent until and unless guilt is established beyond a reasonable doubt.
Of all Constitutional protections, the right to remain silent is the most important defense against coercive and/or unfair police interrogation procedures. This is even more true for children who are especially susceptible to psychological pressure and may not fully understand the consequences of the acts with which they are charged. The law provides that a child may not be interrogated without the presence of a parent unless the juvenile refuses to divulge their names and/or addresses, a good faith effort to locate them is unsuccessful; or the parents simply refuse to attend. The police may not deny the parents the right to speak to their child while in custody. Any questioning must be done in a manner giving full consideration to the child's age and with the utmost fairness. Any assertion of the right to remain silent or the right to consult an attorney before or during questioning must be scrupulously observed.
With the exception of a school setting, a child has the right to be free from unreasonable searches and seizures- meaning that an officer must have probable cause to believe evidence of an offense exists before a search of a juvenile may take place. (Probable cause has been held to mean a belief founded on objective facts and not on a mere suspicion-no matter how well founded.)
In the school setting, the courts, for the obvious reason of the need to protect other children from illegal or harmful conduct, have relaxed the rules of what is a legal search A school official may conduct a search of a student's person or locker if a reasonable suspicion exists that the student has violated the law or a school rule or regulation. The search must be justifiable at its inception and cannot exceed the scope of what is reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
Children who have been adjudicated delinquent can be sentenced to lengthy incarcerations in appropriate circumstances. Incarceration for up to 60 days in a county youth detention facility can be ordered in some cases. The court has the power to impose more serious sentences where the acts constitute more serious crimes or where there are especially aggravating factors present. In the case of a disorderly persons charge, a sentence of up to six months can be imposed. Assault, theft of property worth less than $200.00, possession or use of alcohol by a minor and possession or use of marijuana or drug paraphernalia are examples of disorderly persons offenses in which children may be involved. For more serious charges, more lengthy sentences can be imposed. For example, two years of incarceration for third degree offenses such as possession of any amount of cocaine, or 20 years for murder.
On the other hand many juvenile delinquency charges can be disposed of short of incarceration. There are pro-grams for first offenders and procedures for informal resolution of the charges. The Court has a broad range of probationary terms which can be imposed ranging from curfews to mandatory behavioral modification or drug programs. The Judge can order a child to pay restitution and fines and to obey rules at home. Usually, continued participation in school is imposed as a probationary condition.
The second way in which a child may become subject to judicial proceedings is if the juvenile becomes involved in circumstances termed "juvenile-family crises." Formerly called "juveniles in need of supervision", this term incorporates a host of situations, short of criminal or criminal type activity, and essentially means any behavior of a child, parent, guardian, or other family member which presents a "serious threat" to the well-being of a minor. (Running away from home, for example.)
The court has a wide range of power to assist juveniles involved in a family crisis including, in extreme cases, out of home placement and compel-ling parents, guardians or other family members to participate in programs likely to assist in resolving the crisis. A special hearing is granted to the family as a unit by the Court to assess whether a crisis exits. The juvenile and the family may be represented by counsel.
While out of home placement can be ordered as a result of a hearing in a juvenile family crisis situation, the minor may not be detained in any facility which houses delinquent children or which "physically restricts" the juvenile. This is in stark contrast to the powers of the court in a delinquency case as discussed previously.
A critical part of any juvenile proceeding occurs at the time of arrest. An officer can detain a child suspected of committing a delinquent act. Parents or custodians are to be notified immediately and the child must be afforded an initial hearing to determine whether further detention is necessary. That hearing can be no later than the morning following his or her arrest, including week-ends. If detention is ordered in the preliminary hearing, a full hearing with mandatory counsel must be held within 14 days. Additional review hearings must be held every 21 days to determine whether continued detention is appropriate.
The proper presentation of the facts justifying the release of a child is most important at the initial hearing to avoid unwarranted detention of a child. The presence of counsel can be a crucial factor in determining whether a child will have to spend weeks or months in custody before a charge is resolved.
Ordinarily, at least in cases of non-violent offenders and non-repeaters, the court will allow a child to return home if the parents clearly demonstrate their interest in the child and provide adequate assurances to the court that the child will be supervised and will comply with curfews and school attendance requirements.
The most significant power of a Juvenile Court is the power to order a child to be tried as an adult. Any child over the age of 14 can be "referred" to the criminal courts. There, the child would face adult penalties with the exception of the death penalty for murder. The child in this instance would have the right to a jury trial. Once probable cause is found to exist that the juvenile has committed a serious offense as defined by the statute, referral of the child to the adult court is mandatory unless he or she can demonstrate that they can be rehabilitated by the use of the procedures, facilities and services available to the court by the time he or she reaches the age of 19 years. The probability of such rehabilitation must be substantial.
Juvenile proceedings are considered confidential and the law applies heavy penalties to anyone releasing information regarding a juvenile without authorization. Release is authorized to the victim, school authorities and to the public in certain cases, per a court order where the public interest is great. Formal procedures exist for the sealing (or expunging) of arrest and adjudication records once a juvenile has remained incident free for at least two years.
Like any other area of the law, a detailed and comprehensive knowledge of your children's' rights is crucial to insure their fair treatment when em-broiled, either rightfully or wrongfully, in the juvenile justice system. Competent and energetic counsel can assure that a child is treated with respect and dignity by the system and does not suffer punishments or disabilities beyond that which is reasonable or appropriate under the circumstances. And certainly, as in the adult court, when a child stands wrongfully accused, they should not stand alone.
Azrak & Associates, L.L.C. has been protecting the rights of juveniles and their families for nearly 30 years. A timely call to the firm can reduce the anxiety associated with the judicial system while simplifying the complexity of the issues.
Senior Corner:
Powers of Attorney and Living Wills
Gregory Read, Esq.
Fredric F. Azrak,Esq. |
With the millennium on the horizon and the vast number of baby boomers approaching senior citizenship, concerns over failing health and future impairment are common. Our awareness is further heightened by our involvement with issues concerning our parents. We are seeing our own futures first hand and, needless to say, we are all vulnerable to illness, accident or death-regardless of age. Preparedness is crucial to our parents as well as ourselves.
A common response to increasing awareness of aging and mortality is attention to retirement nest eggs and the need for a Last Will and Testament. And, while proper estate planning is critical and will be discussed on its own in a future newsletter issue, at Azrak & Associates, L.L.C. future planning for clients does not stop with the creation of legal instruments that preserve and control the transfer of assets at death.
Two legal instruments can be drafted to prepare for the uncertain. The first is known as a Power of Attorney and may be vital to people who unexpectedly are unable to function with the complete independence they once enjoyed. Through a Power of Attorney a competent adult can designate a family member or other trusted individual, known as an "attorney-in-fact", to in essence act as an agent to conduct and transact designated legal and financial affairs.
A standard Power of Attorney is often used when the giver of the power, known as the "principal" is temporarily unavailable to transact business (i.e., on a trip).This type of power terminates upon the disability of the principal. On the other hand, a durable Power of Attorney can be drafted to allow a selected individual to continue as an agent during the principal's disability. In fact, many people choose to execute a Power of Attorney which will survive their being disabled and no longer personally able to manage his or her own affairs effectively.
The second legal instrument is tailored to decision making in the area of health care, and specifically addresses the possibility that a severe accident or illness might one day rob one of competency or independent action.. To be unable to communicate decisions regarding medical care and treatment, or whom we wish to choose as our doctors and other health care providers is a scary position to be in. Known as a Living Will or an "advance health care directive", this instrument conveys the power to a trusted other person to make treatment decisions for us if and when we can no longer make them ourselves.
Additionally, the laws of New Jersey allow a Living Will to provide that in certain cases of terminal illness, permanent unconsciousness or an imminent dying process, we can be permitted to die naturally, with dignity, and without further direct life sustaining efforts and procedures. (Many of us re-member the New Jersey case of comatose Karen Quinlan, whose family fought a lengthy court battle for the power to stop her ongoing medical life support.) With a Living Will, the power to reject further life supporting treatment is certain. We remain the masters of our own fate -even to death.
Your estate planning, including Powers of Attorney and Living Wills, is a somber and reality based exercise.
Azrak & Associates, L.L.C. fully appreciates the significance of decisions which must be made and guides its clients through the process to assure a result consistent with their desires.
What You Don't Know About
Automobile Insurance Can Hurt You |
In early February, 2000, the Pompton Plains law firm of Azrak & Associates, L.L.C. will present a FREE automobile seminar. This informative session will provide a wealth of information about the most recent automobile insurance reforms, and will address the relationship between you, your lawyer and your physician in any possible claim for compensation as the result of an accident.
A prominent local medical group will also attend to round out the discussion. If you have questions concerning your automobile insurance renewal or have been in a recent accident, you can't afford not to attend. For more information and to assure your special invitation, please call (973) 839-9062.
Pequannock Mock Trial
Fredric F. Azrak,Esq. |
Fred Azrak Prepares Pequannock Mock Trial Team for Their Competition. For the 17th consecutive year, Fred Azrak (as attorney/ coach) leads the Pequannock Valley High School Mock Trial Team in its local, state and, potentially, national competition. Most recently joined by his wife, Kathy (as teacher/coach), the Azraks hope that this year's team, does as well as last year's which became Morris County Champions defeating all other participating local high schools. The subject of this year's trial competition surrounds a post prom boating accident which results in the death of one youth. Is it manslaughter or negligent homicide? High school participants include: Jenny Marie Azrak, Kristen Baldwin, Paul Camarda, Rob Cascone, Catherine Clark, Rebekah Clark, Courtney Cookson, John Fernandez, Caitlin Hubner, Laura Hutcheon, Nikki Jackowsky, Allison Kane, Jessica Kemenczy, Victor Lee, PJ Mahler, Rina Majmudar, Brian Marron, Katherine Moore, Jennica Ossi, Valerie Sorensen, Jennifer Struble and Joanna Sussman.
Jury Duty
Peter V. McArthur, Esq.
Fredric F. Azrak,Esq. |
Have you ever opened the mail to find a surprise notice commanding your appearance for Jury Duty? Immediately, a myriad of thoughts race through your head. How will my boss react to this? Perhaps more importantly, will I get paid for whatever time I miss? How will this affect my budget? What happens if I'm too sick to go? What happens if this conflicts with my long awaited vacation? CAN I GET OUT OF THIS? At the outset, know that the exemptions for Jury Duty are extremely limited. You can be excused from Jury Duty:
CAN I GET OUT OF THIS?
At the outset, know that the exemptions for Jury Duty are extremely limited. You can be excused from Jury Duty:
- If you are over 75 years of age or older,
- If you have been a juror in the same county for which you are being summoned within the last three years,
- If you have a medical inability to serve which is verified by a licensed physician,
- If you are a volunteer member of a fire department or first aid squad or
- If you provide a highly specialized health care service to others.
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If you are a teacher, you may be excused if the time for service is during the school year and a replacement for you cannot be obtained. Typically, written proof of any of the above exemptions provided to the County Sheriff in advance of the date for which you were summoned will negate the necessity of a court appearance. In this regard, it is possible to apply to the court to be excused due to financial hardship. The court will consider the sources of your household income, the availability of income reimbursement and your expected length of service. Private employers in the State of New Jersey are under no obligation to pay an employee's salary while they are on Jury Duty. However, an employer cannot coerce, threaten or penalize the employee because the employee is required to attend court for Jury service. An employer who does so is subject to prosecution for a disorderly person's offense and an employee, through law suit, can potentially recover economic damages, attorneys' fees and an order for reinstatement in the event he or she is terminated. In the public employment sector, you are entitled to receive your full salary minus the per diem fee for jury duty, which at present is $5.00 per day. Parking is free for all in most counties. In the event you are required to report for Jury Duty, it is feasible that you may never get out of the jury assembly room from which potential jurors are called at random by number. If your number is never called and the jury box is filled, you will then be excused from service. Generally, this occurrence takes one to two days to come to fruition. Lastly, once in the jury box, only two events may allow you to be excused: (I) if an attorney exercises a "challenge" to your service on the panel for cause (perhaps you may be related to one of the litigants, a defendant, or an attorney moving the case); or, (2) if one of the attorneys exercises a preemptory challenge (each attorney is given a limited number of challenges where no reason for dismissal need be given.) Despite inconvenience and lack of significant reimbursement, many people actually enjoy the experience of being selected for a Jury. Certainly it reminds us that we have the best legal system in the world and the time spent only reinforces our commitment to the democratic system. Azark & Associates next Jury Duty article will discuss what you can expect if and when chosen to serve.
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627 Newark Pompton Plains Turnpike
Pompton Plains, NJ 07444
Office: (973) 839-9062 || Fax: (973) 839-2743
Email: Lawyers@AzrakLaw.com
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