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Questions Answered by James A. Abate

2 Answers | Asked in Criminal Law, Federal Crimes and Identity Theft for New Jersey on

Q: my brother was arrested for wire fraud and aggravated identity theft. it has been 2 months since his arrest.

the public defender assigned to his case claims she has not received all documents. is there a time constraint on when she needs to have all documents? she there a way for my brother to obtain them?

James A. Abate answered on Aug 18, 2019

There are constraints which can result in motion practice, a judicial order and dismissal if the order is not obeyed. But it depends on why they have not been produced.

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2 Answers | Asked in Criminal Law for New Jersey on

Q: Being charged with with originaly 2C:5-1A(1) downgraded to 2C:33-2.1B. Didnt possess anything no exchang. Asked how man

Not marandized if cop offerd and i said 2 of actually Nothing what is the crime wasnt lotering even worrried about this showing on background cheks 4 employment.Can it be beat

James A. Abate answered on Jul 27, 2019

There are many angles to this. Would need to know more about the facts and your background. But yes this will show up on criminal background and you would be wise to hire a lawyer and do everything you can do to keep it off record.

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1 Answer | Asked in Criminal Law, Child Custody, Civil Rights and Landlord - Tenant for New Jersey on

Q: Hello i believe and know im a vixtim of illegal search and seizure in the state of nj ninvited guest fight ensued

James A. Abate answered on Jul 19, 2019

Its difficult to respond because I am not sure what the question is. Were you arrested? For what? Who searched you? What did they do? What did they find? What does the guest and the fight have to do with the police? Why were the police there? Was it in a car? Home? In Public? Additional... Read more »

2 Answers | Asked in Criminal Law for New Jersey on

Q: What would be the worst fine/sentence for this possession charge?

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James A. Abate answered on Jun 29, 2019

You need to give more info. Weed, coke, heroin, ecstasy? How much? Circumstances? School zone? Record?

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2 Answers | Asked in Criminal Law for New Jersey on

Q: When facing a NJ 2C:40-26 is their in good outcomes besides jail espeically for a first time offender?

Can I apply for post relief conviction on my first dui? I have been going back and forth for this 4th degree charge for two years.

James A. Abate answered on Jun 25, 2019

Depending on the facts you can apply for PCR on the first. But based on State v. Faison that will not help you on the 2C 40-26. If it is a Mark Dennis Issue that might be different. If you have been in court for 2 years you have a lawyer and you should really be talking with them. Generally it is... Read more »

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3 Answers | Asked in Criminal Law for New Jersey on

Q: How many steps and what can I do before the county criminal court summons

Attempting to elude. Police 2nd degree 2c : 29 2b

James A. Abate answered on Jun 25, 2019

Case info says Philadelphia but asks about New Jersey. I am not sure if there is some confusion on that. I do not know what you mean about how many steps. What ca. You do? Plead not guilty and hire a lawyer who can go through the law and facts and represent you to achieve the best result.

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3 Answers | Asked in Criminal Law for New Jersey on

Q: My daughter was pulled over the police searched her car and found a tiny bag that contained crack .

She let someone use her car . I know everyone says it’s not mine but it truly wasn’t hers. They did arrest her. She has never been in trouble with drugs before. She told me they didn’t read her rights to her. What can happen. Is it possible for this to be thrown out? Very worried!

James A. Abate answered on Jun 12, 2018

She is likely facing an indictable crime (aka felony), 3rd degree punishable by 3-5 years incarceration. Loss of drivers license. It is not unheard of for a first time offender to be given probation. There may be issues on the search and miranda. Unable to know for sure without access to the... Read more »

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3 Answers | Asked in DUI / DWI for New Jersey on

Q: I was pulled over for a dui. When taking samples there was no clear recording. Can this be used against me?

James A. Abate answered on Jun 2, 2018

It can be asserted to be a refusal. The police can convict based on the SFST tests at the scene without a breath test. If you were charged with DWI and Refusal that would be a strong indication.

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3 Answers | Asked in DUI / DWI for New Jersey on

Q: How long does a DUI stay on your record?

James A. Abate answered on Jun 2, 2018

A DWI cannot come off your drivers abstract.

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3 Answers | Asked in Criminal Law for New Jersey on

Q: Question regarding possession of drugs in the state of NJ

If you are detained and searched by a state trooper and they find what they say is heroin but the person says they don't know what that is are they required to test the drug in your presence before charging you with possession?

Also if there is a prescription pill bottle with a pill in it... Read more »

James A. Abate answered on May 20, 2018

There is no requirement for a field test. The suspected substance will be sent to the State Police Forensic Lab for scientific testing. The remainder of your questions are fact specific and it would be best to retain counsel to go through those as you are facing a 3rd degree charge (3-5 years)... Read more »

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4 Answers | Asked in Criminal Law for New Jersey on

Q: Can I use medical marijuana on parole in nj

James A. Abate answered on May 12, 2018

This would depend on your terms of release. If your agreement says "no weed" I would get written permission before you take a single toke.

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3 Answers | Asked in Domestic Violence for New Jersey on

Q: Will a domestic violence conviction always impact a child custody agreement?

James A. Abate answered on May 12, 2018

No always. These are fact specific questions. In this situation you require someone who is familiar with the family aspect, more than the domestic violence side of things.

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3 Answers | Asked in DUI / DWI for New Jersey on

Q: Do you have to go to trial to contest a DUI?

James A. Abate answered on May 5, 2018

You begin the process by pleading not guilty. Then the case is conferenced to assess the proofs and expert reports. Then either a plea is entered or a trial commences.

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3 Answers | Asked in DUI / DWI for New Jersey on

Q: Arrested for DUI

I was at a bar for a couple of hours, enough to get drunk. My car was double parked and when I get out I went to my car to stay warm while I waited for my girl to pick me up, meanwhile someone had called the cops saying I was driving drunk , but when the cops came I was sleeping .. they gave me DUI... Read more »

James A. Abate answered on May 5, 2018

I recently took a similar case to trial and received a not guilty verdict. The police will claim that while you had not yet operated the vehicle, that you intended to do so. It is a question of fact. I am sorry that you do not have confidence in your attorney. Many people hire a lawyer based on... Read more »

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3 Answers | Asked in Criminal Law for New Jersey on

Q: What happens at a detention hearing ?

James A. Abate answered on Apr 17, 2018

A defendant is held up to 48 hours while pre trial services evaluates its recommendations. At the hearing the recommendations are made and the judge will decide whether release conditions should be issued unless the prosecutor files a motion to seek remand. If so, a few days later their will be a... Read more »

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4 Answers | Asked in Criminal Law for New Jersey on

Q: I have a FRO by default and wanted to file a motion to vacate and then get my weapon that was seized back.

What is the best strategy to do this? Should I file a motion on my own or hire a lawyer? These fees to retain range from 1500-10000.. Which is very high for an order entered by default. What is best solution?

James A. Abate answered on Apr 14, 2018

Mr. Boyer and Mr. Aalsberg have given you good advice. It may not be intentional. But your question indicates that you do not understand the seriousness of a FRO or the difficulty you are going to have getting it vacated. Spend for the best lawyer you can afford. The lawyer who quoted $1500 has... Read more »

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2 Answers | Asked in Criminal Law and Domestic Violence for New Jersey on

Q: If you’re falsley accuse you of having a tazer abd they didn’t find anything will the grand jury indict or convict you?

I just left out of court and they told me the next court date the grand jury had to decide if I’m going to get indicted & convicted. My son father made a false complaint on me saying I came to his home 12-13-17 with a tazer and which I didn’t and he told the prosecutor that he wanted to dismiss... Read more »

James A. Abate answered on Apr 13, 2018

Impossible to predict what a grand jury will do. You should have a lawyer.

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2 Answers | Asked in Family Law, Domestic Violence and Criminal Law for New Jersey on

Q: I was arrested for allegedly threating to burn my ex's vehicle as well as cursing at her via text.

I never threatened her. I never said anything about her vehicle nor did I say anything relatively close to causing anyone harm. I did curse at her and call her a bad mother for going against the court ordered visitation that I had to see my son. Is this enough to have gotten me arrested? I now... Read more »

James A. Abate answered on Apr 13, 2018

Three separate issues here. The first is the criminal charge and the criminal record. We do not know the evidence at this point. But if you did not text these statements, then it may just be precautionary by law enforcement. A good barometer is whether you were charged on a warrant (WENT TO... Read more »

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2 Answers | Asked in Criminal Law for New Jersey on

Q: Can you file an expungement order for offenses/violations that occured on separate occasions?

James A. Abate answered on Mar 30, 2018

It would be best to have a formal consultation with a lawyer. Otherwise, the answer is maybe.

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