Sunday, December 02, 2007

Camie Livsey v. Mercury Insurance Group

10-24-07 A-1238-06T5

Uninsured motorist benefits are available to a plaintiff in
a random, drive-by shooting.

Vincent F. Baldassano v. High Point Insurance Company

11-08-07 A-2183-06T1

Plaintiff was a passenger in a car involved in a one
vehicle accident. He settled with the driver for the driver's
policy limit of $100,000 but claimed his damages exceeded that
amount and sought underinsured motorist (UIM) coverage from his
auto insurance carrier, High Point Insurance Company (High
Point). The UIM claim was denied because plaintiff's UIM limit
of $100,000 had been met by the driver's insurance policy.
Plaintiff claimed that in 1998 when he first purchased the
policy, the agent failed to explain the coverage options, the
agent checked the boxes on the coverage selection form, and the
agent failed to provide a buyer's guide. Plaintiff renewed the
policy twelve times before the accident without inquiring about
or changing the policy limits and transferred the policy twice
to new vehicles.

We affirmed and held that under N.J.S.A. 17:28-1.9 the
insurer is immune from liability under the circumstances
presented where (1) the insured executed a coverage selection
form on which the coverage selections had been checked by the
agent; (2) the insured renewed the policy twelve times before
the accident; and (3) the insured could not refute the carrier's
claim that the agent provided "a written notice identifying [all
coverage information] and containing a buyer's guide and
coverage selection form" as required by N.J.S.A. 39:6A-23(a) and
(c).

Sunday, November 25, 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA General Practice, Solo and Small Firm Division American Bar Association

Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ

In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
____________________________________________________


1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.

Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. 
 The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.

In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]

The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)

In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).

Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.

In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.

Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.

The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test.
 Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.

The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.

Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.

The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.

However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.

In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).

The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.

Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.

He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has
appeared in Courts throughout New Jersey several times each week on personal injury matters, Municipal Court trials, and contested Probate hearings.

2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.


The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com

Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com

Saturday, November 17, 2007

Suppression of Stop and Dismissal of DWI Dismissed Where No Erratic Driving.

Suppression of Stop and Dismissal of DWI Dismissed Where No Erratic Driving.

DRUNK DRIVING. STATE v. AMELIO. Appellate Division, A-1679-06T5, September 21, 2007, not approved for publication. Law Division order following a trial de novo that granted the defendant's motion to suppress evidence that resulted from a stop of his vehicle and that led to his arrest for driving while intoxicated and for refusal to submit to a Breathalyzer test affirmed; the defendant's 17 year old daughter reported to the police that she was having a verbal dispute with the defendant, that the defendant was "drunk," and that he had left the scene in a vehicle; a police officer on patrol observed a vehicle that matched the description given by the daughter; that vehicle parked on the side of the road and then drove away about five seconds later; the officer then pulled the vehicle over; the Law Division properly concluded that the information given to the police dispatcher and then to the officer did not provide reasonable suspicion that the defendant was driving while intoxicated; there was no evidence that the defendant was operating his vehicle in an erratic manner, and the only evidence offered by the State was the daughter's statement that the defendant was "drunk."

Source: NJ Lawyer October 1, 2007

Sunday, October 28, 2007

Consequences of a Criminal Guilty Plea in Superior Court

1. If you plead guilty you will have a criminal record.
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
4. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
5. On employment applications, you will have to answer yes that you were convicted of a crime.
6. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
7. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
8. In all drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
9. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
10. You must pay restitution if the court finds there is a victim who has suffered a loss.
11. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
12. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
13. You must wait 5-10 years to expunge a first offense. 2C:52-3
14. You lose the presumption against incarceration in future cases. 2C:44-1
15. You may lose your right to vote.

KENNETH VERCAMMEN & ASSOCIATES, PC
2053 Woodbridge Ave.s
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.BeNotGuilty.com

Monday, September 24, 2007

State of New Jersey vs. Ahmet S. Kotsev

08-31-07 A-3256-05T5

1. N.J.S.A. 39:4-50 mandates a minimum of ninety consecutive
days incarceration for a third or subsequent conviction for
driving while intoxicated (DWI). Sheriff's Labor Assistance
Programs (SLAP) and weekend service are not substitute
sentencing options for third or subsequent offenders.
2. The 1993 statute mandated a third or subsequent offender to
serve 180 days incarceration "except that the court may lower
such term for each day, not exceeding ninety days, served
performing community service." No other options are available.
3. The 2004 amendment to N.J.S.A. 39:4-50, commonly referred
to as Michael's Law, similarly mandates 180 days incarceration
but allows a reduction of one day for each day, not exceeding
ninety days, in an inpatient rehabilitation program.
In other words, a third or subsequent DWI conviction
requires a defendant to serve a minimum of ninety consecutive
days of incarceration.(*Approved for Publication date)

Monday, August 20, 2007

State v. Jay C. Fisher

08-14-07 A-3026-05T3

Pursuant to N.J.S.A. 2C:11-5.1, a driver involved in a
motor vehicle accident that results in the death of another
person is guilty of a crime if the driver fails to comply with
the requirements of N.J.S.A. 39:4-129. The driver must either
remain at the scene to provide his or her driving credentials to
designated persons or report the accident and his or her
identity to the nearest officer of the local police department,
county police or the State Police. Compliance with those
requirements would preclude prosecution under N.J.S.A. 2C:11-
5.1.

Moreover, compliance with those requirements would not
violate the driver's privilege against self-incrimination. As
the United States Supreme Court recognized in California v.
Byers, disclosure of name and address is essentially a neutral
act and most accidents occur without creating criminal
liability. Under the facts of this case, there was no
reasonable basis for the driver to apprehend prosecution,
inasmuch as the decedent had been crouching or lying near the
middle of the road. If, under different facts, compliance with
the statutory requirements did pose a legitimate risk of selfincrimination,
it might be necessary to accord compliant drivers
use or derivative-use immunity as outlined in State v. Patton.

Monday, August 06, 2007

Tracey A. Johnson and Christopher Johnson v. Benedict A. Scaccetti

7-31-07 (A-36-06)

Chipped teeth are not “displaced fractures” under the lawsuit
threshold of the Automobile Insurance Cost Reduction Act
(AICRA), N.J.S.A. 39:6A-1.1 to -35. Once a plaintiff suffers a
single bodily injury that satisfies a threshold category under
AICRA, the jury may consider all other injuries in determining
noneconomic damages. As a matter of law, plaintiff’s spinal
injury in the within matter satisfied the limitation on lawsuit
threshold. Fnally, the trial court failed to articulate
sufficient reasons to justify a remittitur in this action.

State v. Ernest Spell

07-31-07 A-4186-05T5

While the record supports the conviction for refusal to
take a breathalyzer test, N.J.S.A. 39:4-50.2, and the conviction
is affirmed, effective October 1, 2007 officers must read the
additional paragraph of the statutorily promulgated statement of
the Motor Vehicle Commission before any refusal conviction can
be sustained.

Monday, July 30, 2007

State v. Michelle L. Elders

7-30-07 (A-42-06)

The “reasonable and articulable suspicion” standard of State v.
Carty, 174 N.J. 351 (2002), which governs consent searches of
cars that are validly stopped applies equally to disabled
vehicles on the State’s roadways. In this case, the Court
concludes that there was sufficient credible evidence in the
record to support the trial judge’s findings that the troopers
engaged in an unconstitutional investigatory detention and
search.

Monday, July 23, 2007

Commercial Insurance Company of Newark v. Mary Steiger

07-20-07 A-1314-05T1

Decedent perished in a one-car collision. His Estate sued
the vehicle's manufacturer, alleging the products liability
theory that the death occurred because the vehicle was not
"crash worthy." After the products liability suit was settled,
the Estate filed a UM claim, alleging that the accident was
caused by a "phantom" vehicle. UM insurer filed a declaratory
judgment action to preclude the UM claim on several grounds.

We hold that the Estate is not barred from pursuing a UM
claim based on the doctrines of judicial estoppel, which applies
when a party has convinced a court to accept its position. The
doctrine does not apply here because a settlement does not imply
endorsement of a party's position by the court.

We also hold that the settlement of the products liability
claim without the consent of the UM insurer does not bar the UM
claim because the products liability defendant is neither an
uninsured motorist nor the owner of an uninsured vehicle.

Lastly, we hold that, in order to avoid a double recovery,
the UM insurer is entitled to a credit for the amount of the
products liability settlement.

Bogey's Trucking & Paving, Inc. v, Indian Harbor Insurance Company

07-19-07 A-2529-05T3

We consider the automobile exclusion in a CGL policy and
conclude that the business's auto insurer, not the CGL insurer,
owed a duty to defend and indemnify. We also determine that a
passenger in the insured dump truck, who left that truck to
direct its driver and was hit by the driver of an insured car
was "occupying" the dump truck and is entitled to UM coverage.

State v. Tammy Buczkowski

07-18-07 A-4671-05T1

We apply the Supreme Court's dictum in State v. Fisher, 180
N.J. 462, 474 (2004), that N.J.S.A. 39:5-3a requires service of
process within thirty days from the date of the alleged offense
in most instances of charged motor vehicle violations. We,
therefore, affirm the Law Division's dismissal of a charge of
reckless driving, N.J.S.A. 39:4-96, as untimely. We also apply
the doctrine requiring "[t]he government [to] 'turn square
corners' in its dealings with the public."

Monday, July 09, 2007

Mohammad F. Ahammed v. Jeffrey P. Logandro

06-27-07 A-4993-05T1

This is an automobile accident personal injury negligence
case. Plaintiff and defendant were both pizza delivery drivers
engaged in the course of their employment when their vehicles
collided. Defendant asserted the bar of the Workers
Compensation Act (Act) as an affirmative defense in his answer
to plaintiff's complaint. Plaintiff's counsels' actions during
the course of the litigation lulled defense counsel into
mistakenly believing that the fellow-servant rule was not a
viable defense to plaintiff's cause of action. After belatedly
becoming informed of the viability of the defense, defendant one
week prior to the scheduled trial date, asserted the defense as
a bar to plaintiff's complaint. We found that equitable
principles and the strong public policy underpinnings of the
fellow-servant provision supported the trial judge's finding
that defendant did not waive his workers compensation defense by
his late assertion of the defense.

Leslie Conrad v. Michelle & John, Inc., d/b/a Nipper's Pub

06-19-07 A-1131-05T5

This appeal concerns the propriety of the trial court's
order dismissing with prejudice a dram shop cause of action, as
a sanction for plaintiff's failure to produce her expert at a
court-ordered N.J.R.E. 104 hearing. The trial court also
granted defendant's summary judgment motion, finding that there
were no material facts in dispute, thus entitling defendant to a
judgment in its favor as a matter of law.

We reversed. We held that, absent a bona fide and timely
in limine application by defendant seeking to bar plaintiff's
expert testimony, the trial court had no basis to order
plaintiff's expert to respond to an N.J.R.E. 104 hearing to
determine the scientific validity of his opinions. The trial
court also erred in imposing the ultimate sanction of dismissal
with prejudice, before first exhausting lesser sanctions.
Finally, we concluded that there are sufficient material issues
of fact in dispute, giving plaintiff the right to present her
case to a jury. An eyewitness's recantation of a crucial part
of his testimony presents a fundamental jury issue.

Robert M. Alpert v. Sharon Harrington

06-26-07 A-5686-05T3

An applicant for a driver's license cannot obtain an
exemption from the requirement of submission of a social
security number with the application by simply showing that he
tendered an "Affidavit of Revocation and Rescission" of his
social security registration to the Social Security
Administration.

Progressive Group v. Luz Mirian Hurtado

06-14-07 A-4362-05T1
Plaintiff instituted this declaratory action seeking to
have its policy declared automatically terminated as of June 1,
2002, because the owner of the insured vehicle allegedly
transferred legal title to another individual on that date.
Although the motion judge likely erred by concluding that there
was no valid transfer of legal title because the assignment of
the certificate of title was not filed with the Division of
Motor Vehicles, we affirm on different grounds. We held that
the owner's failure to strictly comply with the Motor Vehicle
Certificate of Ownership Law by not providing an odometer
reading, as required by N.J.A.C. 13:21-5.9(a), rendered the
purported assignment of the certificate of title incomplete and
thus did not legally serve to transfer title. As a result,
plaintiff's policy was not automatically terminated and coverage
remained with plaintiff.

Thursday, May 17, 2007

Defendant Can Contest Lab Reports As Hearsay. State v. Kent 391 N.J. Super. 352 (App. Div. Decided March 22, 2007) A-3137-05T1.

Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A:62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.

The court reaffirms the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.

However the court, also noted that, unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.

Defendant's DWI conviction is affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.

If Billing Dispute, Customer Not Guilty of Shoplifting. State v. Goodmann 390 NJ Super. 259 (App. Div. 2007).

The court held that a customer who, following a billing dispute with Walgreens regarding the cost of photo processing, takes the finished photographs without paying for them, but gives his name and address to the store manager, cannot be found guilty of shoplifting. Photo processing constitutes a service, and therefore, Walgreens was not acting as a "merchant" when it contracted to develop the customer's film. Further, the photographs that Walgreens produced were not "merchandise," because they lacked value to anyone other the customer and were not salable.
The court also held that a customer, engaged in a billing dispute, who left contact information so that the dispute could be settled, cannot be found to have "purposely" taken possession of the "merchandise" with the intention of converting the same to his own use without "paying to the merchant the full retail value thereof."

Nurse Can Be Required to Testify in DWI Blood Case. State v. Renshaw 390 NJ Super. 456 (App. Div. 2007).

The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions.

Friday, April 27, 2007

Open Public Records Act (OPRA) Bars $55 Fee For Edison Computer Records.

Libertarian Party of Central NJ v. Murphy 384 NJ Super. 136 (App Div. 2006).
The $55 fee charged to plaintiffs for a computer diskette containing the minutes of the township council meetings violates the OPRA. Source: 184 NJLJ 46.

Police Questioning After 911 Call Did Not Violate Miranda. State v. Boretsky 186 N.J. 271 (2006)

An individual's intentions in respect of equivocal statements about "counsel" during an emergency aid situation are not relevant for Miranda purposes. During the emergency aid response, an alleged "equivocal" reference to counsel lacks sufficient basis to tie the statement to interests the Miranda remedy was designed to protect. When the emergency ends and Miranda warnings are administered, we hold that the administration of the warning satisfies Miranda

Co-tenant Can Object to Search Even if Other Occupant Consents. Georgia v Randolph 126 S. Ct. 1515; 164 L. Ed. 2d 208

A physically present co-occupant's stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him. A disputed invitation, without more, gives an officer no better claim to reasonableness in entering than the officer would have absent any consent. Disputed permission is no match for the Fourth Amendment central value of "respect for the privacy of the home," Wilson v. Layne, 526 U.S. 603, 610, 119 S. Ct. 1692, 143 L. Ed. 2d 818, and the State's other countervailing claims do not add up to outweigh it.

Suspended Jail Sentence Permitted in Juvenile Cases. In the Interest of M.C. 384 N.J. Super. 116 (App Div. 2006)

A Family Court judge imposed suspended sentences in three separate, unrelated juvenile cases involving defendants M.C., M.P., and S.J. The State contended that the sentences imposed are illegal. The Code of Juvenile Justice, N.J.S.A. 2A: 4A-20 to -91 (the Code), should be interpreted to permit suspended sentences. The Code is silent on the subject of suspended sentences. Nevertheless, the court concluded that its provisions are sufficiently flexible to permit our courts to impose suspended sentences as a viable disposition, given its fundamental rehabilitative and penal objectives.

Mandatory 180 Days in Jail For 3rd Offender DWI. State v Luthe 383 N.J. Super. 512 (App Div. 2006)

N.J.S.A. 39:4-50(a)(3) does not authorize non custodial alternatives to the mandatory 180 days confinement, whether that confinement be served entirely in jail or partially in an inpatient facility. There is no statutory authority for work release programs, out-patient treatment, or the like as an alternative

In DWI State Not Required to Prove Defendant Advised of Independent Testing. State v Howard 383 N.J. Super. 538 (App Div. 2006)

The State in a DWI case is not required to prove that a defendant has been advised of his or her right to independent testing pursuant to N.J.S.A. 39:4-50.2(c) and (d) in order to sustain a conviction of a per se violation under N.J.S.A. 39:4-50(a).

Strip Search Improper. State v Harris 384 N.J. Super. 29 (App Div. 2006)

Police conduct up in the seizure of the baggies from defendant's mouth was lawful, but that the strip search at the police station was unreasonable and lacking in probable cause.

Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or immine

imminently threatened with such injury Brigham City v Stuart 126 S.Ct. 1943 (2006)

Responding to a 3 a.m. call about a loud party, police arrived at the house in question, heard shouting inside, proceeded down the driveway, and saw two juveniles drinking beer in the backyard. Entering the yard, they saw through a screen door and windows an altercation in the kitchen between four adults and a juvenile, who punched one of the adults, causing him to spit blood in a sink. An officer opened the screen door and announced the officers’ presence. Unnoticed amid the tumult, the officer entered the kitchen and again cried out, whereupon the altercation gradually subsided. The officers arrested respondents and charged them with contributing to the delinquency of a minor and related offenses.

The US Supreme Court held: The officers’ entry here was plainly reasonable under the circumstances. Given the tumult at the house when they arrived, it was obvious that knocking on the front door would have been futile. Moreover, in light of the fracas they observed in the kitchen, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone unconscious, semiconscious, or worse before entering. The manner of their entry was also reasonable, since nobody heard the first announcement of their presence, and it was only after the announcing officer stepped into the kitchen and announced himself again that the tumult subsided. That announcement was at least equivalent to a knock on the screen door and, under the circumstances, there was no violation of the Fourth Amendment’s knock-and-announce rule. Furthermore, once the announcement was made, the officers were free to enter; it would serve no purpose to make them stand dumbly at the door awaiting a response while those within brawled on, oblivious to their presence.

Illegal alien status can factor to deny PTI. State v. Liviaz __ N.J. Super. __ (App. Div. 2007)

Although PTI may not be denied solely because a defendant is an illegal alien, it can be a relevant factor, and in both of these cases defendant's illegal status plus other facts justified the prosecutor's rejection of defendant's application for admission to the PTI program. Judgments of the trial court therefore reversed.

Two-stage interrogation not objectionable. State v. O'Neill 388 N.J. Super. 135 (App. Div. 2006)

The court reject defendant's claim that the two tape-recorded statements he made to the police should have been suppressed because they were the product of a two-stage interrogation technique (question-first, warn-later) found to be improper by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).

Crawford case requires Witness must appear in court to testify. State v Buda __ N.J. Super. __ (App. Div. 2006) Appellate Division, A-4778-04T4

An excited utterance made by a child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis v. Washington, __ U.S. __, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

Saturday, April 07, 2007

1 Nurse may be required to testify in DWI 02-09-07 State of New Jersey v. Robert C. Renshaw A-0712-05T1

1 Nurse may be required to testify in DWI 02-09-07 State of New Jersey v. Robert C. Renshaw A-0712-05T1
The Court that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions.

Sunday, March 18, 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER

General Practice, Solo and Small Firm Division:
March 2007
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.

Brian T Hermanson Ponca City, OK Chair (580) 762-0020

Kenneth Vercammen, Esq. Editor & Deputy Chair

In this Issue:
1. Sample CONFIDENTIAL CRIMINAL INTERVIEW FORM
2 Sample DWI Cross Examination Questions
3 WE PUBLISH YOUR ARTICLES AND FORMS


1. CONFIDENTIAL CRIMINAL INTERVIEW FORM

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 WOODBRIDGE AVENUE
EDISON, NJ 08817
732-572-0500
PLEASE PRINT

NAME ____________________________________________________

ADDRESS _________________________________________________

CITY _______________________ STATE ____ ZIP ______________

CELL #(_____)_________________ PHONE-DAY(____)________________

NIGHT (______)_________________

TODAY'S DATE ____/_____/_____ E-MAIL ________________________

Referred By: __________________________________
If referred by a person, is this a client or attorney?

CHARGES/TICKETS ISSUED [provide tickets, hearing notice and other important papers to front desk to be copied]
1. ____________________________________________________
2. ____________________________________________________
3. ____________________________________________________
4. ____________________________________________________
IMPORTANT INFORMATION
Date of Offense: __________________ Time: _____ (A.M./P.M.) Your Age _____
Town: ___________________________ (street/location)?____________________
What Happened: _________________________________________________
________________________________________________________________________________________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Write additional details on the back of this page. YOU MUST FILL OUT BOTH
PAGES PRIOR TO SEEING THE ATTORNEY.
Kenneth Vercammen, Esq. Confidential interview form page 2
Other Persons Arrested or Witnesses:
______________________ ______________________ _________________
co-defendant/ Witness Name Their Address Phone No.
What did you tell the police? ________________________________________
______________________________________________________________________________________________________________________________

Occupation: _____________ Employer: _______________ Town: ________
[Attach your business card to clipboard.]
Do you need your drivers license for work? ____ Distance driven to work: ____

Prior criminal arrests or convictions, even if charges dismissed (include description of each charge, date of arrest, and town/county of arrest. -If none, write none):
_____________________________________________________________________________________________________________________________________________________________________________________________

Prior motor vehicle convictions, town and year (ex: drunk driving, driving while suspended, no insurance, etc. -If none, write none): _____________________
_____________________________________________________________________________________________________________________________________________________________________________________________Prior Traffic ticket downgrades to no point tickets since 1999 [39:4-97.2]:
1. Town _______________________ Year ___________ [if none, write none]
2. Town _______________________ Year ___________
[Please note the DMV/MVC only permits 2 "no point" downgrades in 5 years.]

If you are not a US Citizen, please check here: ______

What questions do you have/ how can we help you and anything else important:
____________________________________________________


All new clients are entitled to receive our Free Email Newsletter featuring updates in Traffic Law, Criminal and Personal Injury. Please help yourself to all brochures in the reception area. If you have a business card, please attach it to the clipboard. All paid clients receive a T-shirt upon request. This page must be filled out before meeting with the attorney. Thank you.

Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a municipal court matter.
1. Legal Services To Be Provided- Please read!
We will review and research necessary statutes and caselaw, speak with the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services and at all times will seek to achieve solutions which are just and reasonable for you.

1. Office consultation with client
2. Preparation of statement to provide legal services [ retainer agreement setting forth fees and work to be performed;
3. Offer sound legal advice to client;
4. Preparation of letter of representation to Municipal Court after fee paid;
5. Preparation of letter of representation to Municipal Court Prosecutor;
6. Review documents supplied by client and court;
7. Copies of all correspondence to Court and Prosecutor to client;
8. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure;
9. Review of necessary statutes and case law;
10. Follow up with Municipal Prosecutor for discovery if suspension or jail is likely;
11. Prepare defense and mitigating factors;
12. Miscellaneous correspondence, drafting of brief/ pleadings if needed;
13. Review Court hearing notice and send letter to client to remind them of hearing
14. Travel to Municipal Court;
15. Representation in Municipal Court.
16. Preparation of End of Case Letter and client questionnaire.
17. Free Brochures provided on other legal topics such as Personal Injury, Worker's Comp, Wills, Probate and other matter we help clients
18. Free subscription to monthly e-mail newsletter.
19. Answer specific questions after the case is over
20. Free T-shirts, Magnets, Can Koozie, Stadium Cup, Free USA Keychains, USA Flag Calendar for clients - Please ask.
Legal Fees.
Fees must be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen Law Office today. Fees are to be paid at initial consultation (today). Fees must be paid in full prior to a Letter of Representation being sent to the Court. Neither this office nor other area attorneys accept payment plans if the fees are less than $2,500. Fees are not reduced and not negotiable. We cannot send a letter of representation to the court until the Retainer is paid in full. This is a non-refundable retainer/representation fee, pursuant to Superior Court decisions and New Jersey RPC.
What you should do: After you have retained [paid] your attorney, call the court, plead not guilty and give the court the name of your attorney. In traffic tickets, the phone number is on the back of the ticket.
Write your notes on the back of this paper during your interview.



2- Sample DWI Cross Examination Questions
By Kenneth Vercammen, Esq.
Editor- NJ Municipal Court Law Review and lecturer on DWI for both the NJ State Bar Association and NJ Police Chiefs Association

Probable Cause for Stop
1. No accident?
2. No criminal violation?
3. Traffic light per ticket?
4. According to Report-Not close to hitting other car
5. According to Report not endangering any person/property?
6. No details in report of driving willful on went to disregard of rights of others?
7. No ticket for lane violation?
8. No ticket for careless?
9. No reason to believe weapons?
10. No tip by reliable informant?
11. Pulled over my client without a warrant?
12. No Radar?
13. No Pace?
14. Could not have issued ticket for speeding?

Cross of Police Regarding Field Sobriety
15. Do you have documents describing how, under what conditions and by whom each test was given? Are you aware the National Highway Traffic Safety Administration has advice and instructions on giving the Field Sobriety Test.
15A. Walk and Turn
Your report does not say that you:
• Always begin by having the subject assume the heel-toe stance
• Verify that the subject understands that the stance is to be maintained while the instructions are given.
• If the subject breaks away from the stance as the instructions are given, cease giving instructions until the stance is resumed
• Tell the subject that he or she will be required to take 9 heel-to-toe steps down the line, to turn, and to take 9 heel-to-toe steps up the line.
• Demonstrate several heel-to-toe steps
• Demonstrate the turn
• Tell the subject to keep the arms at the sides, to watch the feet, to count the steps aloud, and not to stop walking until the test is completed.
• Ask the subject whether he or she understands; it not, re-explain whatever the subject doesn’t understand
• Tell the subject to begin
• If the subject staggers or stops, allow him or her to resume from the point of interruption; do not require the subject to start over from the beginning
• Cannot keep balance while listening to instructions (i.e., breaks away from the
heel-to-toe stance)
• Starts before instructions are finished
• Keeps balance but does not remember instructions
• Stops while walking to steady self
• Does not touch heel-to-toe while walking (i.e., misses by at least one-half inch)
• Loses balance while walking (i.e., steps off line)
• Uses arms for balance (i.e., raises arms by six inches or more)
• Loses balance while turning
• Incorrect number of steps
Are you aware the NHTSA states that officers should note in their reports how many times each of the eight clues appears. However, isn't it true the NHTSA for purposes of applying the standardized criterion, a clue should be “counted” only once, even if it appears more than once.
15B. One Leg Stand
Your report does not say you would:
• Tell the subject to stand with heels together, and arms at sides
• Tell the subject not to start the test until you say to do so
• Ask the subject whether he or she understands
• Tell the subject he or she will have to stand on one foot, with the other foot about six inches off the ground
• Demonstrate the stance
• Tell the subject to count from 1 to 30, by thousands
• Demonstrate the count, for several seconds
• Ask the subject whether he or she understands; if not, re-explain whatever is not understood
• Tell the subject to begin
• If the subject stops or puts the foot down, allow him or her to resume at the point of interruption; do not require the count to begin again at “one thousand and one”
• Swaying while balancing
• Uses arms to balance (i.e., raises arms from side six inches or more)
• Slightly uneasy
• Quite unsteady
• Starts before instructions are finished
• Puts foot down
• Hops
Are you aware the NHTSA states that there are the only four validated clues of One Leg Stand.
15C. Horizontal Gaze Nystagmus Test
Your report does not say:
• Hold the stimulus 12-15 inches in front of the subject’s face
• Keep the tip of the stimulus slightly above the subject’s face
• Always move the stimulus smoothly
• Always check for all three clues in both eyes
• Lack of smooth pursuit
• Distinct jerking at maximum deviation
• Onset of jerking within 45 degrees
Are you aware that no other “clues” are recognized by NHTSA as valid indicators of horizontal gaze nystagmus. In particular, NHTSA does not support that allegation that onset angle can reliably be used to estimate BAC, and considers any such estimation to be misuse of the horizontal gaze nystagmus test.

16. Documents describing test results?
17. Documents describing "test" results?
18. What are procedures to permit defendant to obtain independent tests of blood, breath or?

According to your Alcohol influence rep?
19. Section 25 of Alcohol Influence report, Able to walk, talk?
not falling
-not on hands and knees
-not staggering
20. According to Section 26, Ability to stand?
-no swaying
-no leaning for balance
-feet not wide apart
21. According to Section 27, Speech-not slurred?
-not incoherent
-not slobbering
-could understand what she was saying
22. Demeanor-cooperative, polite, calm?
23. Eyes watery now?
24. When is allergy season?

DWI Questions Regarding Under Influence
25. Did prosecutor or state supply an experts report?
26. Not a medical doctor?
27. No test of Pharmacological effects of any medications?
28. No direct measurement of the quantity of any medications or drugs in defendants blood?
29. Gas Chromatography/ Mass spectrometry can provide direct measurement of quality?
30. You don't have any gas Chromatography results with your blood?
31. Not licensed to prescribe medications?
32. Have not attended Medical School?
33. Not Qualified to Render a Medical Opinion
34. Do not have a Ph.D..?
35. Do not have a Masters degree in Chemistry
36. Do not have a BS degree in Chemistry?
[saved 100 Cross Exam Q-DWI Brendan articles 4/3/03]
_____________________________________________

Send Us Your Marketing Tips
Send us your short tips on your great or new successful marketing techniques.

3. WE PUBLISH YOUR FORMS AND ARTICLES

To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Committee.

Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.

You can become a published ABA author. Enjoy your many ABA benefits.


General Practice, Solo and Small Firm Division:
CRIMINAL LAW COMMITTEE
Brian T Hermanson Ponca City, OK
Chair (580) 762-0020

KENNETH VERCAMMEN Deputy Chair
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
kenv@njlaws.com

Thursday, March 08, 2007

New criminal case: Two-stage interrogation not objectionable. State v. O'Neill 388 N.J. Super. 135 (App. Div. 2006)

The court reject defendant's claim that the two tape-recorded statements he made to the police should have been suppressed because they were the product of a two-stage interrogation technique (question-first, warn-later) found to be improper by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court

Monday, February 26, 2007

Law Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds where defendant is charged with crime with bail restric

Kenneth Vercammen's NJ Laws email newsletter E238
February 25, 2007

In this issue:
1. Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds where defendant is charged with crime with bail restrictions.
2- HELP WANTED HTML Clerk to set up webpages
3 Wills, The New Probate Law & Estate Administration Program- last chance to attend Monday, March 19, 2007 7 - 8:30 P.M.
4. Police can ask for consent of home.


1.

Governor Jon S. Corzine also took action on the following legislation. NEW LAWS SIGNED:

A-2987/S-2012 (Watson Coleman, Steele, Johnson, Chivukula, Conaway/Turner, Girgenti) – Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds where defendant is charged with crime with bail restrictions.

2- HELP WANTED HTML Clerk to set up webpages
Law Office Edison

Growing Law Office needs Clerk to update website and help with law office. We sponsor a state wide website with information on litigation, personal injury, criminal and probate matters. Clerk/ programmer needed to update website. Applicants must have familiarity with HTML programming, web page design/ maintenance and Internet technology. If you can update a website, this is the job for you. Please indicate so in the first paragraph of your cover letter. $10.00 an hour start. Work 20 hours per week Monday- Thursday. You select the hours. Fax resume & cover letter to the Law Office of Kenneth Fax 732-572-0030

Great opportunity to obtain legal experience.
GENERAL DUTIES [Not included in Crit advertisement]
-General Office duties in Law Office
-Update mailing/ client lists and learn marketing
-Prepare correspondence to Law Journals and New Jersey Media with
Revised .-Provide copies of published articles to Judges, Prosecutors and other
New Jersey professionals.
-Ideal for person interested in the legal field, law enforcement or public relations/ media
-Occasional Telephone Answering

Must be dependable and committed to perfection for clients
Kenneth A. Vercammen, Esq.


3. Wills, The New Probate Law, Estate Administration & Elder Law
New Probate Law Effective 2006!

WHERE: Edison High School Community Adult Education

WHEN: Monday, March 19, 2007 7 - 8:30 P.M.
Please note, the Edison Board of Education is discontinuing its Community Adult Education program. This is your last opportunity to attend.
SPEAKER: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
- So you don't have a Will. You won't live forever and you can't take it with you. What should you do?
Main Topics:
1. Wills and the 2006 changes to the NJ Probate Law
2. Power of Attorney
3. Living Will
4. Administering the Estate/ Probate/Surrogate
5. Estate Planning
6. Revocable Trusts/ Irrevocable Trusts
7. Federal HIPAA Regulations on release of medical info
8. Federal Estate Tax
9. Question and Answer

COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.njlaws.com.

EDISON COMMUNITY ADULT SCHOOL.
EDISON HIGH SCHOOL, Room 193, 50 Blvd. of Eagles, Edison, NJ
732-452-4574 John Russell, Director
-Free for Edison Seniors who pre register

$25 registration fee required by adult school for all others. Call the Adult Education Office for registration information 732-452-4574

4. Police can ask for consent of home. State v. Domicz 188 N.J. 285 (2006)

The court held Under the circumstances, the warrantless thermal scan and seizure of electricity records did not constitute prior unlawful conduct that could tainted the later search. Grand jury subpoena procedures adequately protect any privacy interest in utility records. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence.

Upcoming charity races:
3/18/2007 St. Paddy's 10 Mile Race & Leprechuan 5k 10 mile 10am, 5k, 10:15am Freehold NJ 732-431-2627 Free beer, Free food, long sleeve shirt USATF Sponsored by Freehold Area Running Club FARC www.farcnj.com

3/24/2007 CASC 5K 9:30 Hightstown NJ 732-742-6868
For more events visit www.metrorace.com
_____________________________

Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1

We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.

"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court

Erase old criminal arrests and guilty pleas- New legal service available

ERASE/EXPUNGEMENT OF OLD ARRESTS TODAY TO AVOID EMBARRASSMENT AND DISCLOSURE

by KENNETH A. VERCAMMEN, ESQ.
Thousands of citizens in New Jersey over the past 20 years have been arrested for criminal, disorderly, and municipal ordinance offenses. They may include your neighbors, friends and loyal church worshipers. The courts and police must keep a record of all arrests and convictions, even if 20 years old. These "secrets of the past" could be open to anyone in New Jersey including credit agencies. Under one proposal, for a $15.00 fee, someone could ask the state police for a person's criminal record, even arrests with not guilty findings. Allowing access to a person's old criminal conviction or arrest record could open the door for discrimination against someone who now is a productive, respected, and law abiding citizen. Many employers often do a criminal background check on new and promoted employees.
Fortunately, if you are a law abiding citizen, you can now have old arrests or convictions erased from public records and police folders. Under NJSA 2C:52-1 et seq. past criminal convictions can be expunged/ erased under certain instances.
If someone has been arrested or even had a private criminal complaint signed against them in the Municipal Court, they have a criminal record, even if the charges were dismissed.
Under NJSA 2C:52-1 et seq. past criminal arrests and convictions can be expunged/ erased under certain instances. We always recommend individuals hire an attorney to obtain an expungement. The process for all expungements are held in the Superior Court. It takes a minimum of three months for the court to grant the expungement. The requirements are very formal. There can be a waiting period between 6 months up to 10 years after the criminal cases is finished.
When retaining the attorney, obtain a "certified disposition" of the court's decision, from the Court itself. Court costs and Legal fees for expungement range from $1,500- $2,500.

_____________________________
5. Upcoming Community Events



Feb. 10 ABA Elder Law meeting, Miami

Feb. 11 Cynthia's birthday

Feb. 10 JSRC Party

March 4 Belmar Parade

March 9 Friendly Sons Friday This year's dinner will be at the DoubleTree Hotel in Somerset, NJ The recipient of "Irishman of the Year" will be Assemblyman Patrick Deignan. The dinner will be a black tie, men only. Tickets will be $100.00 and made payable to Friendly Sons of St. Patrick. Call Kenneth Vercammen if interested. We are trying to set up a table.

March 11 St Patrick Parade - Woodbridge

March 19 Edison Will / Probate

March 21 Middlesex Bar Awards Dinner - Law Center


Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1

We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.

"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

1. New statute Broadens definition of "toxic chemical"

Drug statutes to include nitrous oxide and other substances.
Governor Jon S. Corzine today took action on the following legislation. S-1280/A-3083 (Bryant/Fisher, Burzichelli) - This bill strengthens the prohibition on inhalation abuse, known as "huffing," by broadening the definition of "toxic chemical" in N.J.S.A. 2C:35-10.4.
Under current law, it is a disorderly persons offense to inhale the fumes of any toxic chemical for the purpose of causing a condition of intoxication or to possess any toxic chemical for the purpose of causing a condition of intoxication. A disorderly persons offense is punishable by a term of imprisonment of up to six months or a fine of up to $1,000 or both.
The bill defines "toxic chemical" as "any chemical or substance having the property of releasing toxic fumes," and provides that the term "toxic chemical" includes but is not limited to nitrous oxide, and any glue, cement, adhesive, paint remover or other substance containing a chemical capable of releasing vapors or fumes causing a condition of intoxication, inebriation, excitement, stupefaction, or dulling of the brain or nervous system.
The bill specifically provides that it does not apply to the lawful possession and use of nitrous oxide for the purpose of medical, surgical, or dental care by a person duly licensed to administer nitrous oxide, or to the lawful sale of nitrous oxide for non medical use.
The bill amends N.J.S.A. 2C:36-1 through N.J.S.A. 2C:36-3, the drug paraphernalia statutes, to include objects commonly associated with inhalation abuse, such as the following: compressed gas containers, such as tanks, cartridges or canisters, that contain food grade or pharmaceutical grade nitrous oxide as a principal ingredient; chargers or charging bottles, meaning metal, ceramic or plastic devices that contain an interior pin that may be used to expel compressed gas from a cartridge or canister; and tubes, balloons, bags, fabrics, bottles or other containers used to concentrate or hold in suspension a toxic chemical or the fumes of a toxic chemical. Use or possession of a toxic chemical under N.J.S. 2C:36-2 would be a disorderly persons offense. Distributing, dispensing or possessing with intent to distribute or manufacture a toxic chemical under N.J.S. 2C:36-3 would be a crime of the fourth degree punishable by a term of imprisonment not to exceed 18 months, a fine of up to $10,000 or both.
http://www.njleg.state.nj.us/2006/Bills/A3500/3083_S1.HTM

Thursday, February 15, 2007

Judge releases findings regarding Alcotest DWI machine

Judge releases findings regarding Alcotest DWI machine

After months of testimony and hearing, Court Special master Michael Patrick King rederered Findings and Conclusions Submitted to
Supreme Court on February 13, 2007 regarding the DWI Alcotest machine.

I. PROCEDURAL HISTORY
The case arises from quasi-criminal actions involving
twenty defendants who were arrested in Middlesex County for
driving while under the influence of alcohol in violation of
N.J.S.A. 39:4-50. Defendants challenged the admissibility and
reliability of breath test results obtained from the Alcotest
7110 MKIII-C, firmware version NJ 3.11 (Alcotest 7110).
On October 14, 2005 the Law Division granted the State's
motion to consolidate the cases pending as of May 23, 2005 in
several Middlesex County municipal courts. Among other things,
Judge Cantor denied the State's motion to take judicial notice
of the opinion in State v. Foley, 370 N.J. Super. 341, 359 (Law
Div. 2003), which ruled that the Alcotest 7110 MKIII-C was
scientifically accurate and reliable and that its reported
readings would be admitted into evidence without the need for
expert testimony. At the time of Foley, New Jersey was using
firmware version 3.8.
In her written statement of November 10, 2005 Judge Cantor
explained that the Alcotest 7110 MKIII-C was a new instrument
adopted throughout New Jersey on a county-by-county basis on a
sequential timetable. She emphasized that only the Camden
County, Law Division in Foley had found it scientifically
reliable and that Judge Orlando, in dictum, had concluded that
New Jersey should make certain changes in the instrument's
firmware and the instructions given to its users. Ibid.
Because the Alcotest 7110 MKIII-C was a novel scientific
instrument which had never been vetted by an appellate court or
our Supreme Court, Judge Cantor concluded that its scientific
reliability remained a justiciable issue.
On December 1, 2005 the Appellate Division granted the
State's motion for leave to appeal and denied its motion for a
summary reversal. The Appellate Division remanded the matter to
the trial court for an accelerated hearing on the validity of
breath tests for alcohol, obtained through the use of Alcotest
instruments.
On December 14, 2005 our Supreme Court certified the appeal
pending in the Appellate Division on its own motion pursuant to
R. 2:12-1. The Court vacated the remand to the Law Division and
remanded the matter to retired Appellate Division Judge Michael
Patrick King, to preside as a Special Master. The Court ordered
the Special Master to conduct a hearing and report his findings
and conclusions on an accelerated basis.

The Court ordered the Special Master to:

1. Conduct a plenary hearing on the
reliability of Alcotest breath test
instruments, including consideration of the
pertinent portions of the record in State v.
Foley, 370 N.J. Super. 341 (Law Div. 2003),
and the within matters in the Superior
Court, Law Division, Middlesex County,
together with such additional expert
testimony and arguments as may be presented
by the parties;

2. Determine whether the testimony
presented by the parties should be
supplemented by that of independent experts
selected by the Special Master;

3. Grant, in the Special Master's
discretion, motions by appropriate entities
seeking to participate as amici curiae, said
motions to be filed with the Special Master
within ten days of the filing date of this
Order;

4. Invite, in the Special Master's
discretion, the participation of entities or
persons as amici curiae or, to the extent
necessary in the interests of justice, as
intervenors to assist the Special Master in
the resolution of the issues before him; and

5. Within thirty days of the completion of
the plenary hearing, file findings and
conclusions with the Clerk of the Court and
contemporaneously serve a copy on the
7
parties and amici curiae, which service may
be effectuated by the posting of the report
on the Judiciary's website . . . .


The Court also ordered the parties, and permitted all amici
curiae who participated in the plenary hearing, to serve and
file initial briefs within fourteen days of the filing of the
Special Master's report as well as responses, if any, within ten
days. It further ordered the Clerk to set the matter for oral
argument on the first available date after completion of
briefing by the parties. Finally, the Court ordered the stay of
N.J.S.A. 39:4-50 proceedings pending in Middlesex County, and
directed all Superior and Municipal Court judges before whom
such proceedings were pending, to ensure strict enforcement of
the Court's Guidelines for Operation of Plea Agreements in the
Municipal Courts of New Jersey.
On January 9, 2006 the Special Master granted to the
Association of Criminal Defense Lawyers of New Jersey (ACDL)
leave to appear as amicus curiae. On January 23, 2006 the
Special Master also admitted the New Jersey State Bar
Association (NJSBA) as amicus curiae, under R. 1:13-9, in view
of the matter's public importance.
On January 10, 2006 the Court sua sponte issued an order
addressing issues that affected the prosecution of N.J.S.A.
39:4-50 offenses statewide. The Court ordered all prosecutions
and appeals which did not involve the Alcotest 7110 to proceed
in the normal course. The Court, however, ordered the stay of
prosecutions and appeals involving repeat offenders and the
execution of their sentences where the convictions were based
solely on Alcotest readings. The Court also ordered that first-
offender prosecutions proceed to trial based on clinical
evidence when available and on Alcotest readings. It ordered,
however, that the execution of sentences for all first offenders
be stayed pending disposition of the Court's final decision on
the Alcotest 7110's reliability, unless public interest required
their immediate implementation.
As explained by the Administrative Director, Judge
Carchman, in a clarifying memorandum to municipal court judges
dated January 17, 2006, a court could admit evidence of an
Alcotest reading, over the objection of defense counsel, without
first holding a hearing on the instrument's scientific
reliability. He further explained that under N.J.S.A. 39:4-
50(a)(2) and (3), the penalty for repeat offenders was the same
whether the finding of guilt was based on observation or blood
alcohol levels. However, for first offenders, the penalty could
vary, making the Alcotest reliability hearing of fundamental
importance.
On March 15, 2006 the Court entered an order directing the
Special Master to designate an independent expert or experts.
Upon deliberation and consultation with the parties and amici
curiae, the Special Master determined that a court-appointed
expert was not necessary for proof purposes, especially because
of the quasi-criminal nature of the proceedings.
Meanwhile, discovery proceeded. On February 3, 2006 the
Special Master entered an order directing the State to give
defendants certain information, documents and materials
pertaining to the Alcotest 7110's firmware, software,
algorithms, electronic schematics, and source codes. Among
other things, the discovery order recognized that the exchange
of firmware and software might require a protective order to be
submitted by the State or manufacturer for court approval. On
February 17, 2006 the Special Master entered a supplemental
discovery order directing the State to lend three Alcotest 7110s
to defense counsel and one to counsel for the amicus NJSBA.
Among other things, the supplemental discovery order also
allowed the manufacturer Draeger Safety Diagnostics, Inc.
(Draeger) to apply to intervene in this matter, especially
because of the issue of "trade secrets."
Draeger objected to the discovery orders claiming that they
permitted the release of trade secrets and proprietary
information. On February 23, 2006 Draeger's intellectual
property counsel prepared a proposed protective order and sent
it to the State for submission to the court.

Draeger's proposal
included a request for indemnification from defense counsel. In
response to defendants' objections to Draeger's initial draft

Wednesday, January 31, 2007

Accident reports must now be provided by Police via written or fax request

Governor Corzine signed into law on January 26 a revision to NJSA 39:4-131 regarding providing accident reports. The new law requires police agencies to send accident reports through the mail or via fax upon request. The police may require as a condition that the person making the request complete a request form and pay the appropriately authorized fee set forth in the statute. If injured in a car accident, call Kenneth Vercammen. The text of the amended statute is as follows:


NJSA 39:4-131

The commission shall prepare and supply to police departments and other suitable agencies, forms for accident reports calling for sufficiently detailed information with reference to a motor vehicle accident, including the cause, the conditions then existing, the persons and vehicles involved, the compliance with P.L. 1984, c.179 (C.39:3-76.2e et seq.) by the operators and passengers of the vehicles involved in the accident, whether the operator of the vehicle was using a cellular telephone when the accident occurred, and such other information as the chief administrator may require.

Every law enforcement officer who investigates a vehicle accident of which report must be made as required in this Title, or who otherwise prepares a written report as a result of an accident or thereafter by interviewing the participants or witnesses, shall forward a written report of such accident to the commission, on forms furnished by it, within five days after his investigation of the accident.

Such written reports required to be forwarded by law enforcement officers and the information contained therein shall not be privileged or held confidential. Every citizen of this State shall have the right, during regular business hours and under supervision, to inspect and copy such reports and shall also have the right in person to purchase copies of the reports at the same fee established by section 6 of P.L. 2001, c.404 (C. 47:1A-5). If copies of reports are requested other than in person, an additional fee of up to $5.00 for the first three pages and $1.00 per page thereafter may be added to cover the administrative costs of the report. Upon request, a police department shall send an accident report to a person through the mail or via fax as defined in section 2 of P.L. 1976, c.23 (C.19:59-2). The police department may require the person requesting the report to provide a completed request form and the appropriate fee prior to faxing or mailing the report. The police department shall provide the person requesting the report with the option of submitting the form and providing the appropriate fee either in person, through the mail, or via fax as defined in section 2 of P.L. 1976, c.23 (C.19:59-2).

The provisions of any other law or regulation to the contrary notwithstanding, reports obtained pursuant to this act shall not be subject to confidentiality requirements except as provided by section 28 of P.L. 1960, c.52 (C. 2A: 84A-28).

Saturday, January 27, 2007

New Jersey DNA Database and Databank Act constitutional

State v. John O’Hagen (A-70-05) 1-24-07

The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1-
20.17-20.28, as amended, does not violate the rights guaranteed
by the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, Paragraphs 1 and 7 of the New Jersey
Constitution.

1-24-07 A.A., by his parent and guardian B.A., v. Attorney
General of the State of New Jersey et als.(A-105-05)

DNA test results lawfully obtained pursuant to the New Jersey
DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17-
20.28, as amended, may be used to solve crimes committed prior
to the taking of the DNA test.


1-18-07 State v. Vincent Dispoto (A-103-05)

Because there was insufficient evidence to support the issuance
of the underlying domestic violence search warrant, the criminal
search warrant was invalid as fruit of the poisonous tree.
While this holding renders moot the Appellate Division’s finding
that failure to re-administer Miranda warnings at the time of
arrest required suppression of Dispoto’s post-arrest
incriminating statements, the Court adds in respect of the issue
of the Miranda warnings only that no bright line or per se rule
governs whether re-administratiocustodial Miranda warning.

internet subscriber has an expectation of privacy

State of New Jersey v. Shirley Reid 01-22-07
A-3424-05T5

The Appellate Division held that an internet subscriber has an expectation of
privacy in information on file with the internet provider
identifying her as the user associated with an anonymous "screen
name." Since the police obtained that identifying information
by means of an invalid subpoena, issued by a municipal court
administrator and returnable on the date of issuance, the order
suppressing the evidence obtained from the internet provider was
affirmed.

Sunday, January 21, 2007

No warrantless search of auto after occupants are out.

State v. Eckel 185 NJ 523 (2006).

A warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger police or destroy evidence cannot be justified under any exception to the warrant requirement and is unreasonable. Once the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception in inapplicable. If the occupant has been arrested but not removed and secured, the court will have to determine on a case-by-case basis whether the suspect was in a position to compromise police safety or evidence to justify resort to the search incident to arrest exception.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com