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Former county employee avoids lengthy prison sentence May 7, 2009

Posted by jefhenningeresq in My Cases.
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Another client that found me from this blog.  Great guy that made some mistakes.  The only bad part was that he hired me rather late, but it was just in time for me to help him avoid a really bad situation.  He was charged with official misconduct for taking money that customers paid for applications that he was in charge of.  Although the case made the paper as a huge story initially, I was able to keep the story off the front page at the end.  Thus, I won’t get into the facts.

He hired me late because he had reached a plea deal but he did not feel that his attorney was really helping him.  Thus, he hired me to file a motion to take back his plea.  Be careful what you wish for.  I showed up to court on the day of his sentencing having just been hired a week prior asking to come into the case and file the motion to take back his plea.  However, before the court would hear that request, the court threw a monkey wrench into the case that no one expected.

In New Jersey, the crime of official misconduct carries a mandatory two year parole stip for a third degree and a three year stip for a second degree if the offense touches upon the defendant’s position.  A “stip” as we call it, means that the defendant will have to do that amount of time, in this case two years, before parole can even consider letting him out of prison.  Under a flat sentence, parole can let the person out whenever they want to which is usually much less than the stip.

In this case, the State filed a motion to ask the court to waive the two year parole stip and give my client a “three flat”.  However, as part of this motion, the State has to show substantial cooperation.  Although there is no law on this issue, the Court held that this applied to co-defendants and since there were none in this case, there was no cooperation regardless of how much the client helped the State.  Thus, the motion was denied and the plea was thrown out!

So, this guy hires me to do better than a three flat and as soon as I start the case, everything blows up and now he is looking at a much worse sentence.  Not only will this keep in prison about 15 months longer at least, but he will be in a much worse prison.  Worst yet, if he didn’t take that deal in the next few weeks, the offer would have gone up to a 5 with a 3 year stip as he would be indicted for second degree official misconduct.  Great huh?

I never give up and I couldn’t let this happen so I spent over a week trying to think of a way out of all of this.  I came up with a number of solutions and presented them to the prosecutor.  Luckily, he was a real professional guy and was willing to go to bat for me.  See, one of the biggest problems with this case is that it was big news and very political due to my client’s position and the entity that he worked for.  However, the prosecutor agreed to dismiss the official misconduct charge in exchange for a plea to third degree theft.  Thus, we don’t have to worry about any stip here.

Now, instead of years, my client will probably only do a few months.  While I would have liked to keep him out of prison, he was caught red-handed, he confessed and he had a record for other financial crimes.  Thus, under all of the circumstances, a flat sentence was a miracle.  Its funny how some things just seem to happen for a reason.  Needless to say, his whole family is so happy that they found me in the nick of time!

Almost forgot, because he was sentenced on the same day of the new plea, the media had no idea this would go down so the new plea and sentence  wasn’t a big news story in the local area.  Due to the political nature of the situation, it could have been much bigger news if the media was there.

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Comments»

1. ted - June 5, 2009

Why would a 3yr sentence with a 2yr stip place the client in a worse prison than a 3 yr flat sentence??

2. whitecollarcrimenews - June 5, 2009

A 3 with a 2 means that the client will do at least 2 years, no less. With a 3 flat, the client could be out in as little as 3 months. So, I would say that 21 months is quite a big deal.

3. Jose - October 4, 2009

with a five flat when can i drop to a halfway house


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