Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Sunday, December 04, 2016

In the Matter of Robbinsville Township Board of Education v. Washington Township Education Association (A-32-15;


 In the Matter of Robbinsville Township Board of
          Education v. Washington Township Education Association
          (A-32-15; 076497)
          The Court rejects the Appellate Division’s mistaken
          reading of Keyport to authorize the Board’s unilateral
          alteration of a collectively negotiated agreement.
          Keyport does not stand for the proposition that anytime
          a municipal public employer can claim an economic
          crisis, managerial prerogative allows the public
          employer to throw a collectively negotiated agreement
          out the window.  To the contrary, Keyport painstakingly
          emphasized the significance of an agency of State
          government enacting a temporary emergency regulation to
          provide local governmental managers with enhanced
          prerogatives.  The regulation’s existence made all the
          difference in Keyport, and there is a lack here of an
          authorizing temporary emergency regulation that
          permitted temporary furloughs.  Keyport does not support
          the award of summary judgment to the Board.

Monday, November 21, 2016

STATE OF NEW JERSEY IN THE INTEREST OF A.R. A-2238-14T3

STATE OF NEW JERSEY IN THE INTEREST OF A.R.
          A-2238-14T3
Appellant, a fourteen-year-old juvenile, was found guilty of sexually touching a seven-year old boy on a bus returning from summer camp. The alleged victim was developmentally comparable to a three-year-old. After getting off the bus, he blurted out to his mother's cousin that appellant had touched him during the ride. Eighteen days later, a detective interviewed the younger child on videotape at the county prosecutor's office. The child repeated the accusation, demonstrating it with anatomical dolls. No eyewitnesses on the bus, including the driver and aide, corroborated the incident.
At a pretrial Rule 104 hearing, the court ruled that both of the child's hearsay statements were sufficiently trustworthy to admit under the "tender years" hearsay exception, N.J.R.E. 803(c)(27). The court then queried the younger child at the start of the trial about his ability to discern and tell the truth. The court twice concluded from the child's troublesome responses that he was not competent to testify under the criteria of N.J.R.E. 601. Nevertheless, the court accepted the child's hearsay statements and trial testimony repeating the accusations, based on the so-called "incompetency proviso" in
page1image18000 page1image18160 page1image18320 page1image18480

Rule  803(c)(27),  which  treats  children  of  tender  years  as
available witnesses even if they are not competent to testify.
We conclude that the younger child's statements during his recorded interview with the detective were "testimonial" under the Confrontation Clause, as construed by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. The objective "primary purpose" of the interview was to elicit and preserve statements from an identified child victim of sexual abuse about wrongful acts for potential use as evidence in a future prosecution. The child's testimonial statements to the detective here are distinguishable from the non-testimonial statements that a young child victim made to her teachers at school in Ohio v. Clark, 135 S. Ct. 173 (2015).
Although appellant's counsel attempted to cross-examine the child, that exercise was inadequate to safeguard his confrontation rights, given the child's undisputed incompetency. Hence, we reverse the admission of the detective's interview and the child's in-court testimony because it violated appellant's constitutional rights. However, as appellant concedes, the child's spontaneous assertion after getting off the bus was not testimonial under the Confrontation Clause and was properly admitted. We remand for the trial court to reconsider the proofs in light of our determinations. 

STATE OF NEW JERSEY VS. RICHARD RIVASTINEO A-3720-15T2


STATE OF NEW JERSEY VS. RICHARD RIVASTINEO
          A-3720-15T2
Based on the plain language of the statute as well as the rule of lenity, the State is precluded from aggregating the weight of cocaine and heroin to achieve a higher degree of crime pursuant to N.J.S.A. 2C:35-5(c). 

STATE OF NEW JERSEY VS. CHARLES WHEATLEY A-5026-14T1


STATE OF NEW JERSEY VS. CHARLES WHEATLEY
          A-5026-14T1
Distinguishing State v. Reiner, 180 N.J. 307 (2004), we hold that a defendant who was previously convicted of driving while intoxicated (DWI) in a school zone in violation of N.J.S.A. 39:4-50(g) is subject to the increased penalties applicable to second offenders under N.J.S.A. 39:4-50(a)(2) when he was subsequently convicted of a conventional DWI in violation of N.J.S.A. 39:4-50(a). 

Sunday, November 20, 2016

State v. Charles Bryant, Jr. (A-2-15

 State v. Charles Bryant, Jr. (A-2-15; 075958) 

The officers here lacked reasonable and articulable suspicion that another party was present, much less that another party posed a danger to officer safety. The protective sweep was thus insufficient to establish an exception to the warrant requirement, and any evidence found as a result of that sweep—even if it was found in plain view—must be excluded and suppressed as fruit of the poisonous tree. 

State v. Xiomara Gonzales (A-5-15

State v. Xiomara Gonzales (A-5-15; 075911) The Court now excises the inadvertence requirement from the plain-view doctrine. Because it is setting forth a new rule of law, the Court will apply the reformulated plain-view doctrine prospectively. Nevertheless, the Court holds that the trial court’s finding of inadvertence is supported by credible evidence in the record. The Court therefore reverses the judgment of the Appellate Division and reinstates the trial court’s denial of the motion to suppress.

Monday, October 31, 2016

NJ Municipal Court Law Review Fall 2016


Index
1. Prosecutor must provide videotape and audiotape plus names of officers from other towns involved in stop
 State v. Stein
2. Suppression where stop based only for high beam State v. Scriven
3. Third Party did not have authority to consent to search of premises
State v.  Cushing
4. Search warrant did not permit search of persons off premises State v. Bivins
5. No search warrant needed for some Cell phone records State v. Lunsford
6. Police video is public record under OPRA  Paff v Ocean County Prosecutors Office
7 No automatic right to discovery of other files
State v. Hernandez
8. Prosecutor used improper arguments of victim’s state of mind
State v Ravi
9.    Expert should not be permitted to testify on ultimate issue. State v. Simms
10. No automatic rejection for PTI
State v Rizzitello

11. Seminar: Review of the Major Municipal Court Cases from 2016 Middlesex County Bar Association seminar

1.    Prosecutor must provide videotape and audiotape plus names of officers from other towns involved in stop. State v. Stein 225 NJ 582 (2016)

Under Rule 7:7-7(b), the municipal prosecutor was required to provide defendant with the names of the police officers from the adjacent jurisdiction who responded to the accident scene. Because, when the prosecutor failed to provide the information, defendant did not raise this issue before the municipal court, or seek relief under the Rule, the issue has been waived. The prosecutor was also required to provide the videotapes that defendant requested, if they existed, since such information was clearly relevant to a DWI defense. Because the Court cannot determine from the record whether any videotapes exist, the matter is remanded to the Law Division for further proceedings on this issue.  

2. Suppression where stop based only for high beam. State v. Scriven 226 NJ 20 (2016) 

The trial court and Appellate Division properly concluded that the motor-vehicle stop violated the Federal and State Constitutions. The language of the high-beam statute, N.J.S.A. 39:3-60, is unambiguous; drivers are required to dim their high beams only when approaching an oncoming vehicle. Neither a car parked on a perpendicular street nor an on-foot police officer count as an oncoming vehicle. The judgment of the Appellate Division upholding the trial court’s suppression of the evidence is affirmed.  

3. Third Party did not have authority to consent to search of premises. State v. Cushing 226 NJ 187 (2016)  

The record contains ample evidence to support the Appellate Division’s conclusion that Betty Cushing did not have actual authority to consent to the search of defendant’s room, and Betty could not have conferred through any power of attorney an authority that she did not possess herself. In addition, it was not objectively reasonable for Officer Ziarnowski to rely on an apparent authority by Lisa Mylroie as the basis for valid third-party consent to his initial search of defendant’s bedroom.  

4.    Search warrant did not permit search of persons off premises. State v. Bivins 226 NJ 1 (2016)   

Because the State did not provide adequate proof that the individuals found in a car had been present at the targeted residence when the warrant was being executed moments before their apprehension, the warrant did not provide authority for the search of the two off-premises individuals.)

5. No search warrant needed for some Cell phone records. State v. Lunsford 226 NJ 129 (2016)  
As a long-standing feature of New Jersey law, telephone-billing records are entitled to protection from government access under the State Constitution.  Because they reveal details of one’s private affairs that are similar to what bank and credit card records disclose, these areas of information should receive the same level of constitutional protection and be available based on a showing of relevance.  Direct judicial oversight of the process is required to guard against the possibility of abuse, and in order to  obtain a court order requiring production of telephone billing records, the State must present specific and  articulable facts to demonstrate that the records are relevant and material to an ongoing criminal investigation.  

6. Police video is public record under OPRA  Paff v Ocean County Prosecutors Office 446 NJ Super. 163 (App. Div. 2016)
(MVRs) in  police vehicles - which, in accordance with the police chief’s  written policy order, are generated automatically whenever the  vehicle’s overhead lights are activated - are “government  records” subject to disclosure under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Appellant Ocean County  Prosecutor’s Office failed to carry its statutory burden to show that the films fall within an exception under OPRA. Judge Gilson dissents.   

7 No automatic right to discovery of other files.
State v. Hernandez 225 NJ 451 (2016)
Although the discovery rule generally requires that the State provide all evidence relevant to the defense of criminal charges, it does not open the door to foraging through files of other cases in search of relevant evidence. The discovery ordered by the trial court and Appellate Division exceeds the limits of Rule 3:13-3(b) and is not supported by this Court’s jurisprudence.  

8.    Prosecutor used improper arguments of victim’s state of mind. State v Ravi __ NJ Super. __ Defendant was convicted of multiple counts of invasion of privacy, bias intimidation, hindering prosecution, and tampering with evidence. The jury found defendant guilty on four counts directly predicated on N.J.S.A. 2C:16-1(a)(3), a now constitutionally defunct law pursuant to the Supreme Court’s holding in State v. Pomianek, 221 N.J. 66, 69 (2015). The State conceded that the convictions under these four counts are void as a matter of law.  A-4667-11T1

9.    Expert should not be permitted to testify on ultimate issue. State v. Simms 224 NJ 393 (2016)  

Expert testimony that “embraces an ultimate issue to be decided by the trier of fact,” N.J.R.E. 704, is not admissible unless the subject matter is beyond the ken of the average juror. State v. Nesbitt, 185 N.J. 504, 515-16, 519 (2006). Expert testimony is not necessary to tell the jury the “obvious” or to resolve issues that the jury can figure out on its own. In addition, a prosecutor may not “summarize straightforward but disputed evidence in the form of a hypothetical and then elicit an expert opinion about what happened.” State v. Sowell, 213 N.J. 89, 102 (2013).
The erroneously assumed fact in the hypothetical question—that the object in defendant’s hand was a bundle of heroin packets—unfairly buttressed the State’s case. It was for the jury to decide the identity of the object based on an examination of the totality of the evidence. The ultimate-issue testimony on conspiracy, moreover, impermissibly intruded into the jury’s singular role as trier of fact.  

10. No automatic rejection for PTI
State v Rizzitello
Defendant was indicted on a single count of fourth-degree operating a motor vehicle during the period of license suspension for a second or subsequent conviction for driving while intoxicated, in violation of N.J.S.A. 2C:40-26(b). The State appeals from the order of the trial court which admitted defendant into PTI over the prosecutor's veto. The court reversed. The prosecutor's decision to reject defendant's application for admission into PTI did not constitute "a patent and gross abuse of discretion" as defined by the Supreme Court in State v. Roseman, 221 N.J. 611, 625 (2015).
The court rejects the prosecutor's characterization of the fourth degree offense under N.J.S.A. 2C:40-26(b) as falling within the crimes that by their very nature carry a presumption against admission into PTI. A-0536-15T2

Seminar: Review of the Major Municipal Court Cases from 2016 Middlesex County Bar Association seminar
Tuesday, November 22, 2016 Municipal Court Practice CLE Seminar 
2:00 PM until 4:00 PM
Middlesex County Bar Association MCBA Office 87 Bayard Street New Brunswick, New Jersey  08901 
Presenters: Kenneth A. Vercammen, Esq., Edison 
Scott Morrell Esq., East Brunswick 
To Register:
Info Contact:       MCBA Jonathan Cowles  jcowles@mcbalaw.com 
Phone: 732.828.3433, x. 102          
Cost: $30-Young Lawyers; $40-MCBA Members; and $75-All Others

     We thank Summer Blast Happy Hour July 15 attendees 

The party at Bar Anticipation was a good time. We thank over 160 professionals and friends who attended the Summer Blast Happy Hour & Networking Social at Bar Anticipation. My family and I had a great time catching up with old friends and meeting new ones.
We appreciate the many attendees donated canned goods donated which were donated to St. Matthews Edison Food Pantry.

NJSBA Happy hour Facebook photos


We thank the co-sponsors sponsors for the Happy Hour the NJ State Bar Association Sections and Committee, Greater Monmouth Chamber of Commerce, Monmouth County Bar Association, Retired Police & Fire Middlesex Monmouth Local 9, NJ Lakewood Chamber of Commerce.
Special thanks to our volunteers who checked in the guests and gave out wristbands and who helped hang up the banners.  Mark you calendar for the 2017 Summer Happy Hour July 14, 2017 Friday 5:30-7:55.  

        2017 MUNICIPAL COURT COLLEGE seminar

March 20, 2017 5:30pm-9:00pm
NJ Law Center, New Brunswick
$150- $180 depending on membership, Municipal Court Judges ½ price
sponsor NJICLE NJ Institute for Continuing Legal Education
A Division of the NJSBA
Phone: (732) 214-8500  




N.J. Municipal Court - Law Review SUBSCRIPTION INFO

       Please forward a check or voucher for $20.00 to receive the NJ Municipal Court Law Review.  This quarterly newsletter reports changes in New Jersey Court decisions, selected revised motor vehicle and criminal laws, cases, seminars, and information on Municipal Court practice.

       Vouchers accepted. Please send a stamped, self-addressed envelope for their return.  Multiple subscriptions encouraged.

       Please must send a $20.00 check payable to Vercammen & Associates, PC.
If the law firm or municipality no longer wishes to subscribe, please fax or mail us. 

Name:      ______________________________________
(or staple business card here)
Address:   ______________________________________
             
We also need your email address ________________________
Return to:  
Kenneth A. Vercammen, Esq.,   
                    Editor- NJ Municipal Court Law Review   
                    2053 Woodbridge Ave.
                    Edison, NJ 08817
                    732-572-0500
                   Tax ID # available
.  Municipal Court and criminal law attorneys may also be interested in the ABA’s CRIMINAL LAW FORMS book
Award winning book from the American Bar Association
Solo & Small Firm Division Author: Kenneth Vercammen
 Use Criminal Law Forms to help represent persons charged with criminal and traffic offenses. Detailed instruction and valuable insight is offered beginning with the initial contact with the client, to walking into the courthouse, and managing the steps that follow. Two hundred and ten modifiable forms help make criminal lawyers more efficient and productive, while also reducing the chance for mistakes. Criminal Law Forms helps lawyers face the challenges of:
       Criminal defense
       DWI cases
       Juvenile offenses
       Domestic violence
       Traffic violations
       Auto Accidents
       And much more
Regular price $139.95, GP SOLO Member Price $129.95 To order contact ABA Customer Care, 1-800-285-2221 (PC: 5150457) 

ISBN:
978-1-61438-879-1

http://apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5150457
 Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he  handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's award winning book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association.  As the Past Chair of  the Municipal Court Section he has served on its board for 10 years. 
Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.
Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine.  He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.
         For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.
His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings.  Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.
            Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4th degree black belt.

KENNETH VERCAMMEN
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

Sunday, October 09, 2016

State v. June Gorthy (A-51-14;


State v. June Gorthy (A-51-14; 075009)
          When a criminal defendant is found competent to stand
          trial under N.J.S.A. 2C:4-4, he or she has the
          autonomy to make strategic decisions at trial, with
          the advice of counsel, including whether to assert the
          insanity defense.  Based on the trial court’s finding
          that defendant was competent to stand trial, and the
          detailed explanation that it gave defendant of the
          potential benefits and risks of the insanity defense,
          the court should have permitted her to decide whether
          to assert the defense, rather than invoking it on her
          behalf.  We reverse the trial court’s judgment of
          acquittal by reason of insanity on the stalking
          charge, and remand for a new competency determination
          and, if appropriate, a new trial on this charge.  We
          affirm defendant’s conviction on the weapons charges.

Sunday, September 25, 2016

STATE OF NEW JERSEY VS. BRIAN A. GREEN A-2656-12T3

STATE OF NEW JERSEY VS. BRIAN A. GREEN 
A-2656-12T3 
In this appeal from a conviction for possession of marijuana with intent to distribute, we address the question of whether the holding in State v. Cain, 224 N.J. 410 (2016), should be applied retroactively to cases still pending on appeal. 

Based upon our review of the language used by the Supreme Court in Cain and in State v Simms, 224 N.J. 393 (2016), as well as other post-Odom decisions by the Court, we conclude Cain's holding must be given pipeline retroactivity, and applied to all cases pending on direct appeal. 

STATE OF NEW JERSEY VS. STEVEN RIZZITELLO A-0536-15T2

STATE OF NEW JERSEY VS. STEVEN RIZZITELLO 
A-0536-15T2 
Defendant was indicted on a single count of fourth-degree operating a motor vehicle during the period of license suspension for a second or subsequent conviction for driving while intoxicated, in violation of N.J.S.A. 2C:40-26(b). The State appeals from the order of the trial court which admitted defendant into PTI over the prosecutor's veto. We reverse. The prosecutor's decision to reject defendant's application for admission into PTI did not constitute "a patent and gross abuse of discretion" as defined by the Supreme Court in State v. Roseman, 221 N.J. 611, 625 (2015). 

However, we reject the prosecutor's characterization of the fourth degree offense under N.J.S.A. 2C:40-26(b) as falling within the crimes that by their very nature carry a presumption against admission into PTI. 

STATE OF NEW JERSEY IN THE INTEREST OF JUVENILE, I.C. A-5119-13T1

STATE OF NEW JERSEY IN THE INTEREST OF JUVENILE, I.C. 
A-5119-13T1 
In this appeal and cross-appeal, we address the issue of whether a juvenile was entitled to credit on his suspended sentence for the time he spent in a residential community home program as part of his probationary sentence to the Juvenile Intensive Supervision Program ("JISP"). We also consider whether the juvenile should have been granted credit on his sentence for the period during which he participated in the JISP following his completion of the community home program. 

Based upon our review of the record and applicable law, we hold that the juvenile was not entitled to credits for either of these periods. Therefore, we affirm the trial judge's decision denying the juvenile's request for credits for his time in the community home program, and reverse the judge's decision granting the 

Monday, September 12, 2016

STATE OF NEW JERSEY VS. DHARUN RAVI A-4667-11T1


STATE OF NEW JERSEY VS. DHARUN RAVI
          A-4667-11T1/A-4787-11T1(CONSOLIDATED)
Defendant was convicted of multiple counts of invasion of privacy, bias intimidation, hindering prosecution, and tampering with evidence. The jury found defendant guilty on four counts directly predicated on N.J.S.A. 2C:16-1(a)(3), a now constitutionally defunct law pursuant to the Supreme Court’s holding in State v. Pomianek, 221 N.J. 66, 69 (2015). The State conceded that the convictions under these four counts are void as a matter of law. 

STATE OF NEW JERSEY VS. JAMES BOYKINS A-0751-14T1


STATE OF NEW JERSEY VS. JAMES BOYKINS
          A-0751-14T1
Defendant raises an issue not addressed in State v. Hudson, 209 N.J. 513, 517 (2012). We consider whether defendant, who received a second extended-term sentence for a crime he committed while on bail awaiting trial on the offense for which he received his first extended-term sentence, was "in custody" within the meaning of N.J.S.A. 2C:44-5b when he committed the second offense. Because we conclude defendant was "in custody" within the meaning of N.J.S.A. 2C:44-5b when he committed the second offense, we reject his claim that his second extended term constituted an illegal sentence.