Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
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Wednesday, July 23, 2014

Summer Municipal Court Law Review 2014


Summer Municipal Court Law Review 2014

1. If Defendant detained, third person’s consent to search no good. State v. Coles 217 NJ 467 (2014) A-1512 

Under the circumstances presented here, a third party’s consent to conduct a warrantless search of a defendant’s living space is insufficient to justify the search when the defendant is unlawfully detained by police.

2. Co-Occupant consent to search valid. State v. Lamb 217 NJ 442 (2014) A-3712 

Under the circumstances of this appeal, an occupant’s knowing and voluntary consent to search a premises is constitutionally effective against a third party and is not nullified by the prior objections of an absent co-occupant whose absence is not the result of a police effort to avoid an objection. 

3. Trial Court to examine if confession based on false promise of leniency. State v. Hreha 217 NJ 368 (2014) A11511

The record lacks sufficient credible evidence to support the trial court’s finding that defendant was not offered leniency in exchange for his confession. The matter is remanded for a new Miranda hearing to allow a trial court to make fresh credibility and factual findings, after which the trial court may decide what weight, if any, to assign to any promises of leniency when it applies the totality-of-the-circumstances test.


4. PTI not available after guilty verdict. State v. Bell 217 NJ 336 (2014) A2112 

PTI is a pretrial diversionary program that is not available to a defendant once the charges have been tried before a judge or a jury and a guilty verdict has been returned.

5. Suppression granted where stop based on driver high beams on. State v. Witt 435 NJ Super. 608 (App. Div. 2014) A 0866-13T2

The court granted leave to appeal an order granting defendant's motion to suppress evidence seized during a warrantless search of his vehicle. The court affirmed not only because it is bound by State v. Pena-Flores, 198 N.J. 6 (2009), and its many antecedents, and not only because no exigencies for the search were revealed during the suppression hearing, but also because there was no legitimate basis for the motor vehicle stop that preceded the search. In this last regard, the record demonstrated that the police officer stopped defendant's vehicle because defendant did not dim his high beams as he drove by the officer's parked patrol vehicle. Because the patrol vehicle was not an "oncoming vehicle," and because there were no other "oncoming vehicles" on the road at the time, the police officer did not have objectively reasonable grounds to believe defendant had violated the high-beam statute, N.J.S.A. 39:3-60, in making the vehicle stop.

6.  Search no good where search away from location of search warrant. State v. Bivins 435 NJ Super. 519 (App. Div. 2014) A1577-12T2

In this appeal, the court considers whether the scope of the permissible area and persons to be searched, pursuant to a search warrant, extends to the location where defendant was found, seated in a vehicle, parked on the street, five or six houses away from the premises where a search warrant was being executed. The motion judge found there was probable cause to search defendant based upon the search warrant. The court reverses the holding pursuant to Bailey v. United States, the search and seizure was beyond the spatial limits of the search warrant. 

7. PCR Hearing granted where defendant has colorable claim of innocence. State v. O’Donnell 435 NJ Super. 351 (App. Div. 2014) A1889-12T2

Defendant pleaded guilty to the murder of her six-year-old son. She received a thirty-year sentence with a thirty-year MPI. She alleges her attorney was ineffective by failing to diligently pursue a diminished capacity defense and failing to adequately consult with her before urging her to plead guilty. The court reverses the trial court's denial of PCR and remand for an evidentiary hearing. 
The court directs the court to separately apply the four-factor test governing plea withdrawal motions under State v. Slater, 198 N.J. 145 (2009), and the two-prong test governing PCR petitions under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The court compares and contrasts the two standards. Both apply to defendant's application for relief. Although the standards sometimes overlap, they do not always lead to the same results. The court instructs the trial court not to conflate the two. The court also concludes that the court mistakenly set too high a threshold for satisfying the "colorable claim of innocence" factor under Slater.
  1. 8. Prior DWI counts for enhanced refusal. State v. Frye 217 NJ. 566 (2014) A-30-12

The court reaffirms its holding in In re Bergwall, 85 N.J. 382 (1981).  A prior DWI conviction may enhance the sentence for a subsequent refusal conviction under the refusal statute. N.J.S.A. 39:4-50.4a.
  1. 9. No insurance Law 39:6 B-2 amended to provide discretion for no DL suspension

      Under the prior law, a person who commits a first offense of driving without insurance is subject to a fine of between $300 and $1,000, a period of community service to be determined by the court, and loss of driver’s license for one year from the date of conviction. Under this amended law, imposition of a driver’s license suspension for such a first offense is to be within the discretion of the court, and the period of any such suspension could be from two months to one year from the date of conviction.
The relevant portion of 39:6b-2 reads: 
….The court also shall suspend the person's right to operate a motor vehicle over the highways of this State for a period of one year from the date of conviction ; provided, however, the period of license suspension may be reduced or eliminated if the person provides the court with satisfactory proof of motor vehicle liability insurance at the time of the hearing. 

Handling Drug, DWI & Serious Motor Vehicle Cases book and seminar CD
Kenneth Vercammen, Metuchen & Carteret Prosecutor William Feingold, William Brigiani John Menzel, Elizabeth & Woodbridge Prosecutor Norma Murgado, Josh Reinitz
400-page book & CD with sample forms, documents & checklists! Call NJ ICLE 
$52 - $65 (732)214-8500    Order #  M150713

Editorial Assistance provided by Associate Editor Jillian Spielman, 3L, New York Law School 

INDEX

1. If Defendant detained, third person’s consent to search no good. State v. Coles
2. Co-Occupant consent to search valid. State v. Lamb
3. Trial Court to examine if confession based on false promise of leniency. State v. Hreha
4. PTI not available after guilty verdict. State v. Bell
5. Suppression based on driver high beaming to warn of police car. State v. Witt
6. Search no good where search away from location of search warrant. State v. Bivins
7. PCR Hearing granted where defendant has colorable claim of innocence. State v. O’Donnell
8. Prior DWI counts for enhanced refusal. State v. Roger Paul Frye
9. No insurance law 39:6 R2 amended to provide discretion for no DL suspension


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Municipal Court College 2014
Kenneth Vercammen,  Elizabeth & Woodbridge Prosecutor Norma Murgado, John Menzel, Steve Williams  450-page book & CD with sample forms, documents & checklists! Call NJ ICLE  $52 - $65 (732)214-8500    

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Attorneys, Professionals and their staff invited to Happy Hour & Networking Social
Friday, July 18, 2014
 5:00PM - 7:00PM
            at Bar Anticipation 
             703 16th Avenue
         Lake Como/ Belmar, NJ 07719
Free !
5-7PM Hot & Cold Buffet 
The reduced price Happy Hour is 6-7PM with $1 House Drink, Bud/BudLt draft & House Wine Special 
   Please bring a canned food donation for the St. James Food Bank Hands of Hope, continuing providing food and help to individuals in need.
      Email Ken Vercammen's Law Office so we can put your name on the VIP list for wristbands.     VercammenLaw@Njlaws.com 

Friday, July 04, 2014

Seminar: Remove & Expungement of Criminal Arrests and convictions- Free Seminar August 6 from 5:00pm-5:45

   Location: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817
        COST: Free if you pre-register. Complimentary materials provided at 12:00 sharp. This program is limited to 15 people. Please bring a canned food donation, which will be given to the St. James Food Bank located on Woodbridge Avenue in Edison, NJ. Please email us if you plan on attending or if you would like us to email the materials.
SPEAKER: Kenneth Vercammen, Esq.
                 (Author- Criminal Law Forms by the American Bar Association)
     Under NJ Law past criminal arrests and convictions can be expunged/ erased under certain instances. The Petition all expungements are filed 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 case is finished. For someone who had a drug charge, they can hire an attorney apply for Expungement 6 months after the Conditional Discharge is complete. The statute requires detailed notices served by the attorney on the State Police, Attorney General and numerous other government entities.
         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 or received a Conditional Discharge.  The statute on expungement was revised in 2010. Court costs and Legal fees for expungement range from $1,500-$2,500.
  
     To attend  email VercammenLaw@Njlaws.com
        Can’t attend?  We can email you materials
Send email to VercammenLaw@Njlaws.com

http://www.njlaws.com/expungment-seminar.htm

Tuesday, July 01, 2014

6/27/2014 STATE VS. CAMPBELL A-5535-12T4


6/27/2014
STATE OF NEW JERSEY VS. CAMPBELL
A-5535-12T4
Defendant appeals his conviction of drunk driving ("DWI") and the trial court's denial of declaratory relief on his claim of unconstitutionality.
Defendant's prosecution was based upon an Alcotest reading of his blood alcohol content ("BAC") above the per se level of .08 prohibited by N.J.S.A. 39:4-50(a). He argues that case law authorizing the admission of Alcotest BAC results when the prerequisites for such admissibility are shown by "clear-and-convincing" proof, coupled with the statute's conclusively incriminating treatment of a BAC at or above .08, improperly combine to relieve the State of its constitutional burden of proving a driver's guilt by the more rigorous standard of proof "beyond a reasonable doubt."
We reject defendant's claim of unconstitutionality. The argument fails to distinguish the State's threshold burden of establishing the Alcotest's evidential admissibility from the State's ultimate burden at trail of establishing defendant's guilt of a per se offense beyond a reasonable doubt. Even if a pretrial motion to suppress the BAC results has been denied, a defendant can still present competing evidence or arguments at trial to persuade the court that the testing procedures were flawed and that stringent his guilt has not been proven by the more reasonable doubt standard.

6/24/14 State v. Ross II (A-67-12; 072042)

6/24/14
State v. Ross II (A-67-12; 072042)
Where there was nothing in the jury’s communications with the trial court to suggest that any juror had reached a determination on a factual or legal issue, the trial court’s decision to instruct the deadlocked jury to continue deliberations and attempt to reach an agreement, and to later substitute an alternate for an ill juror after the deadlock had been announced, did not constitute plain error.

Tuesday, June 17, 2014

05/02/14 STATE VS. DORSAINVIL A-0879-10T2


05/02/14 STATE VS. DORSAINVIL
A-0879-10T2
     After a jury trial, defendant was convicted of first degree conspiracy to commit murder, second degree aggravated assault, and related second and third degree offenses. On the second day of deliberations, the jury reported it was "hopelessly deadlocked." Immediately following the jury's report of an inability to reach a unanimous verdict, sheriff's officers intervened at the jury's request to dissolve a physical altercation between two jurors. The trial court denied defendant's motion for a mistrial.
     We reverse. A physical altercation between two or more deliberating jurors constitutes an irreparable breakdown in the civility and  decorum expected  to    dominate the deliberative process envisioned by the Court in State v. Czachor, 82 N.J. 392 (1980). A jury verdict so tainted cannot stand as a matter of law. The trial judge's supplemental instructions to restore order exacerbated the problem by imposing a judicially crafted civility code of conduct that placed the judge at the center of jury deliberations in violation of State v. Figueroa, 190 N.J.
219 (2007).

05/05/14 STATE V. BUCKNER A-0630-12T1


05/05/14 STATE V. BUCKNER
A-0630-12T1
We uphold the constitutionality of N.J.S.A. 43:6A-13(b), which authorizes the New Jersey Supreme Court to recall retired judges for temporary service, including those who have reached age seventy, an issue of first impression in this State.
Judge Harris, in dissent, concludes otherwise.

05/09/14 STATE V. PATTERSON A-2055-10T1


05/09/14 STATE V. PATTERSON
A-2055-10T1
We hold that the drug-trafficking recidivist provision in N.J.S.A. 2C:43-6(f) cannot be the basis to impose a mandatory extended term for the offense of drug trafficking within 500 feet of a public housing facility under N.J.S.A. 2C:35-7.1. N.J.S.A. 2C:43-6(f) has never been amended to add the subsequently-enacted N.J.S.A. 2C:35-7.1 to its list of drug trafficking offenses for which an extended term is required. The prosecution may move to apply N.J.S.A. 2C:43-6(f) to the N.J.S.A. 2C:35-5 count, and the resulting minimum term of parole ineligibility will survive the merger of that count with the N.J.S.A. 2C:35-7.1 count. Because defendant attempted to explain away the cash in his pocket by using his post-arrest statement that "he was unemployed and that he won the money in Atlantic City gambling," the prosecutor's reference to his statement and his unemployment was not reversible error.

05/13/14 STATE V. BIVINS A-1577-12T2


05/13/14 STATE V. BIVINS
A-1577-12T2
In this appeal, we consider whether the scope of the permissible area and persons to be searched, pursuant to a search warrant, extends to the location where defendant was found, seated in a vehicle, parked on the street, five or six houses away from the premises where a search warrant was being executed. The motion judge found there was probable cause to search defendant based upon the search warrant. We reverse holding pursuant to Bailey v. United States, __ U.S. __, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013), the search and seizure was beyond the spatial limits of the search warrant.