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

Wednesday, May 17, 2017

STATE OF NEW JERSEY VS. DONNELL W. ANCRUM A-0932-16T2

STATE OF NEW JERSEY VS. DONNELL W. ANCRUM
          A-0932-16T2
The court granted the State's leave to appeal from an illegal sentence. Defendant was charged with second-degree robbery, second-degree burglary, second-degree aggravated assault (serious bodily injury) and third-degree aggravated assault (significant bodily injury). After indicating the assault charges would merge into the robbery under the facts of the case and the effect of the mergers would be defendant's eligibility for special probation, N.J.S.A. 2C:35-14 (the Statute), the judge accepted defendant's guilty pleas to all four counts of the indictment. At sentencing, over the State's continued objection, the judge sentenced defendant to special probation, conditioned on his entry into, and completion of, Drug Court.
The court reversed, concluding that although the 2012 amendment to the Statute made defendants convicted of second- degree robbery and burglary eligible for special probation, the Legislature intended to continue to bar a defendant convicted of
page6image19776 page6image19936

aggravated assault from receiving such a sentence. Similar to those cases in which the Legislature clearly intended certain mandatory sentences survive merger, a conviction for one of the Statute's disqualifying offenses survives merger and bars defendant's sentence to special probation. 

STATE OF NEW JERSEY VS. EDWARD HOLLAND A-0315-15T4

STATE OF NEW JERSEY VS. EDWARD HOLLAND
          A-0315-15T4
The court examines defendant's challenge to denial of post- conviction relief because the trial judge had been his attorney in more than one matter seventeen years earlier. Although the trial record contained no mention of the judge's prior representation and does not definitively show the trial judge
page8image20776 page8image20936 page8image21096 page8image21256 page8image21416 page8image21576 page8image21736 page8image21896 page8image22056 page8image22216

actually remembered defendant was his former client, testimony before the PCR court confirms the State and defense counsel were informed the judge had served as defendant's private counsel. The court rejects the PCR judge's conclusion to deny PCR suggesting counsel's decision not to seek recusal represents a "valid trial strategy," which cannot be second-guessed.
Reviewing the newly revised Code of Judicial Conduct, specifically Canon 3.17, which mandates disqualification for a period of seven years following the conclusion of that representation and recognizes "disqualification for a period of time in excess of seven years from the conclusion of the representation may be required in certain circumstances." The court reasoned the necessity of preserving the integrity of impartiality and avoiding all appearances of impropriety must be paramount. The court concluded prejudice envelops the entire process by casting doubt and leaving the lingering question of whether a trial judge's familiarity favored a defendant, or conversely, caused a trial judge to overcompensate so as not to reflect an appearance of bias. The court held when an instance arises where a judge previously represented a criminal defendant, the prior representation and relationship shall be clearly stated on the record, and the judge then be disqualified from proceeding in the matter. 

STATE OF NEW JERSEY VS. MICHAEL D. MILLER A-0459-15T4

STATE OF NEW JERSEY VS. MICHAEL D. MILLER
          A-0459-15T4
Following a bench trial, defendant was convicted of second- degree child endangerment for distributing child pornography, N.J.S.A. 2C:24-4b(5)(a), and fourth-degree child endangerment by possessing child pornography, N.J.S.A. 2C:24-4b(5)(b). In affirming defendant's conviction, we hold that the trial court did not err in allowing a detective, who was not presented as an expert witness, to testify as a fact witness regarding his forensic examination of defendant's computer and defendant's use of peer-to-peer file sharing programs. In any event, any error in the admission of the challenged testimony was harmless as the detective possessed sufficient education, training, and experience to qualify as an expert in the field of computer forensics, and defendant was not surprised or prejudiced by the detective's testimony.
We further hold that, in applying aggravating factor one, N.J.S.A. 2C:44-1(a)(1), the trial court engaged in impermissible double-counting. We also conclude that, under the specific facts presented, defendant's convictions for fourth-degree
page9image20200

possession of child pornography and second-degree distribution of child pornography merge. Accordingly, we remand for the court to resentence defendant without consideration of aggravating factor one, and for merger of the two offenses. 

State v. Rodney J. Miles a/k/a Jamal D. Allen (A-72-15;


State v. Rodney J. Miles a/k/a Jamal D. Allen
          (A-72-15; 077035)
          New Jersey now joins the majority of jurisdictions in
          returning to the Blockburger same-elements test as the
          sole test for determining what constitutes the “same
          offense” for purposes of double jeopardy.  In the
          interest of justice, the Court applied both the same-
          elements test and the now-replaced same-evidence test in
          this case; going forward, for offenses committed after
          the issuance of this opinion, the same-elements test
          will serve as the singular framework for determining
          whether two charges are the same offense for purposes of
          double-jeopardy analysis.

State v. Habeeb Robinson (A-40-16;


State v. Habeeb Robinson (A-40-16; 078900)
          Both the trial court and the Appellate Division directed
          the State to disclose the statements of two
          eyewitnesses, photos used in the identification process,
          any incident report of the crime prepared by the police,
          and a surveillance video.  Rule 3:4-2(c)(1)(B) required
          disclosure of the reports and the photos but not the
          video.  The Court also clarifies and reframes the Rule
          to help ensure that it strikes the proper balance
          between two important concerns:  a defendant’s liberty
          interest and the State’s ability to seek to detain high-
          risk defendants before trial.

J.B./L.A./B.M./W.M./R.L. v. New Jersey State Parole Board (A-81/82

J.B./L.A./B.M./W.M./R.L. v. New Jersey State Parole
          Board (A-81/82/83-15; 077235)
           The Court affirms but modifies the Appellate Division’s
           opinion.  The Court upholds the Parole Board’s use of
           polygraph testing with the same limitations as the
           Appellate Division, but adds that the Parole Board’s
           regulations must be further supplemented to buttress the parolees’ Fifth Amendment right against self-
incrimination

State v. Amir Randolph (A-70-15


State v. Amir Randolph (A-70-15; 076506)
          Defendant had automatic standing to challenge the search
          of the apartment because he was charged with possessory
          drug offenses and because the State failed to show that
          the apartment was abandoned or that defendant was a
          trespasser.  Failing to issue the “mere presence” charge
          was harmless error.

State v. Brian Tier (A-73-15;


 State v. Brian Tier (A-73-15; 077328)
          A plain reading of Rule 3:13-3(b)(2)(C) requires
          production of witness statements only if those
          statements have already been reduced to writing.
          Nothing in the rules precludes a trial court from
          ordering a defendant to designate witnesses as either
          character or fact witnesses, however.  The Court
          encourages practitioners to participate in cooperative
          discovery in order to ease the burden on all parties
          involved.

State v. Dion E. Robinson (A-40-15; 076267)

State v. Dion E. Robinson (A-40-15; 076267)
          Although the circumstances gave rise to a reasonable
          suspicion that there was a weapon in the vehicle, the
          five officers’ swift and coordinated action eliminated
          the risk that any of the four occupants would gain immediate access to the weapon.  Accordingly, the
          protective sweep exception to the warrant requirement
          does not govern this case.  The community-caretaking
          exception to the warrant requirement is irrelevant.
          However, the inevitable discovery exception to the
          exclusionary rule may be pertinent to this case.

Wednesday, April 19, 2017

STATE OF NEW JERSEY VS. DONNELL W. ANCRUM A-0932-16T2


STATE OF NEW JERSEY VS. DONNELL W. ANCRUM
          A-0932-16T2
The court granted the State's leave to appeal from an illegal sentence. Defendant was charged with second-degree robbery, second-degree burglary, second-degree aggravated assault (serious bodily injury) and third-degree aggravated assault (significant bodily injury). After indicating the assault charges would merge into the robbery under the facts of the case and the effect of the mergers would be defendant's eligibility for special probation, N.J.S.A. 2C:35-14 (the Statute), the judge accepted defendant's guilty pleas to all four counts of the indictment. At sentencing, over the State's continued objection, the judge sentenced defendant to special probation, conditioned on his entry into, and completion of, Drug Court.
The court reversed, concluding that although the 2012 amendment to the Statute made defendants convicted of second- degree robbery and burglary eligible for special probation, the Legislature intended to continue to bar a defendant convicted of aggravated assault from receiving such a sentence. Similar to those cases in which the Legislature clearly intended certain mandatory sentences survive merger, a conviction for one of the Statute's disqualifying offenses survives merger and bars defendant's sentence to special probation 

Tuesday, April 18, 2017

Probate and duty of executor



Duties/ Executor to Do

-Notice of Probate to Beneficiaries (Attorney will handle)
If charity, notice to Atty General

File notice of Probate with Surrogate (Attorney will handle)

Apply to Federal Tax ID if there will be several beneficiaries

Set up Estate Account at bank (pay all bills from estate account)

Pay Bills  
List real estate for sale and have attorney prepare, Deed, Affidavit of title and other document

File first Federal and State Income Tax Return [CPA- ex Marc Kane]

Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney will handle)

File waivers within 8 months upon receipt (Attorney will handle)

Prepare Informal Accounting 

Prepare Release and Refunding Bond (Attorney will handle)




Obtain Child Support Judgment clearance (Attorney will handle)

Let's review the major duties involved, which we've set out below.

In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

39:4-97 Careless driving


39:4-97 Careless driving
    39:4-104 Fine or imprisonment not
exceeding 15 days, or both
$50 $200 plus court costs
NJ MVC Points 39:4-97 Careless driving 2
and 2 Car insurance points
Plus Judge Can Suspend DL for Willful Traffic Offense.
State v. Moran  202 NJ 311 (2010)
 The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law.  To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges

Careless driving Careless driving 39:4-97 requires the State to provide the vehicle was operated by the defendant carelessly or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property
  KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

DWS- Driving While Suspended




NJSA 39:3-40 Driving While Suspended in New Jersey DEFENSES Call Kenneth Vercammen for representation 732-572-0500
More info at www.njlaws.com/driving_on_a_suspended_license.htm Thousands of motorists in New Jersey are stopped for routine traffic violations, then are surprised to be informed their license is suspended. Where the minimum costs would be $1,261 in fines, surcharge and costs, motorists need an attorney with knowledge and skill in handling Driving While Suspended (DWS) matters. Over the past decade Municipal Court practice has diversified requiring the need for crafted trial counsel to provide adequate representation for clients concerning both disorderly persons and motor vehicle offenses. Although this may seem like a hopeless situation at first, the reality is that it offers an attorney the opportunity to be creative in finding possible ways to avoid a prolonged license suspension and even the possible incarceration of the client. The violation of DWS is set forth at NJSA 39:3-40. This section states, "no person to whom a drivers license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal suspension, revocation or prohibition." The statute also prohibits the operation of a motor vehicle whose registration has been revoked.
PENALTIES Conviction under this statute brings the following penalties: Upon conviction of the first offense of a fine of $500.00, the defendant will also be surcharged a mandatory $250.00 per year for 3 years in every DWS by the MVC (formerly DMV); Upon conviction for the second offense a fine of $750.00 and imprisonment in the county jail for 1 - 5 days; Upon conviction for the third offense, a fine of $1000.00 and imprisonment in the county jail for 10 days. Additionally, the statute states, that upon the conviction the court shall impose or extend a period of suspension not to exceed 6 months. If DWS and involved in an accident resulting in personal injury to another person, the court shall impose a period of imprisonment for not less than 45 days.
If an individual violates this section while under suspension under 39:4-50 (DWI), they shall be fined $500.00 extra and have their license suspended for an additional period not less than one year nor more than two years and mandatory county jail for 10 - 90 days. If suspended for Failure to Pay a Surcharge, there is an extra $3000.00 fine.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

Sunday, April 09, 2017

STATE OF NEW JERSEY VS. EDWARD HOLLAND A-0315-15T4


 STATE OF NEW JERSEY VS. EDWARD HOLLAND 
A-0315-15T4 
The court examines defendant's challenge to denial of post-conviction relief because the trial judge had been his attorney in more than one matter seventeen years earlier. Although the trial record contained no mention of the judge's prior representation and does not definitively show the trial judge actually remembered defendant was his former client, testimony before the PCR court confirms the State and defense counsel were informed the judge had served as defendant's private counsel. The court rejects the PCR judge's conclusion to deny PCR suggesting counsel's decision not to seek recusal represents a "valid trial strategy," which cannot be second-guessed. 

Reviewing the newly revised Code of Judicial Conduct, specifically Canon 3.17, which mandates disqualification for a period of seven years following the conclusion of that representation and recognizes "disqualification for a period of time in excess of seven years from the conclusion of the representation may be required in certain circumstances." The court reasoned the necessity of preserving the integrity of impartiality and avoiding all appearances of impropriety must be paramount. The court concluded prejudice envelops the entire process by casting doubt and leaving the lingering question of whether a trial judge's familiarity favored a defendant, or conversely, caused a trial judge to overcompensate so as not to reflect an appearance of bias. The court held when an instance arises where a judge previously represented a criminal defendant, the prior representation and relationship shall be clearly stated on the record, and the judge then be disqualified from proceeding in the matter. 

State v. Shaquille A. Nance; State v. Taja L. Willis Bolton; State v. Alvin D. Williams (A-47/48


 State v. Shaquille A. Nance; State v. Taja L. Willis 
Bolton; State v. Alvin D. Williams 
(A-47/48/49-15; 076626) 

Section 6.2 was misapplied in defendants’ sentencing proceedings and therefore defendants should be resentenced. The assignment judge, not the sentencing judge, has the authority to decide whether a defendant will be sentenced to a term of probation or a term of incarceration with a one-year period of parole ineligibility. If the defendant has been convicted of a first-degree or second-degree Graves Act offense, the assignment judge (or designee) must consider the presumption of incarceration prescribed by N.J.S.A. 2C:44-1(d) when he or she chooses between the probationary and one-year mandatory minimum sentences envisioned by section 6.2. 

State v. Kassey Benjamin (A-43-15;


 State v. Kassey Benjamin (A-43-15; 076612) 

Defendants are not entitled to discovery of the prosecution’s files for cases in which Graves Act waivers have been granted to other defendants. 

Tuesday, April 04, 2017

Expungement NJ



New Expungement Law permits petitions for Expungement of arrests in shorter time periods.
      This is an excellent law to help non-violent offenders. Don’t be denied a job, credit or barred from coaching based on an old criminal charge.
This new law establishes new expungement procedures for records and information pertaining to crimes and offenses, including procedures for persons who are, or previously have been, successfully discharged from the State’s special probation drug court program.  It also provides shorter waiting periods before certain records and information become expungeable.
You can now get expungements for both the crime and the disorderly persons convictions.
The new law took effect April 18, 2016.
The time period for expunging a Municipal Court criminal charge may be reduced to 3 years if you can show exception circumstances. Otherwise it stays 5 years.
      Regarding a person with a criminal conviction, that person would be permitted to make an application with an expungement petition to the Superior Court in the county in which the criminal conviction was adjudged.  The application could include additional, separate petitions seeking to expunge no more than two other convictions for disorderly persons or petty disorderly persons offenses.  The application could only be filed after the expiration of five years from the date of the person’s most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, for the crime or for any disorderly persons or petty disorderly persons offense, whichever is later (the waiting period under current law for a criminal conviction expungement is ordinarily 10 years).  Alternatively, the court could grant an expungement on the application if less than five years has expired from the payment of any fine but the five-year waiting period is otherwise satisfied, and the court finds that the person substantially complied with any payment plan for that fine or could not do so due to compelling circumstances.KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

Sunday, April 02, 2017

STATE OF NEW JERSEY VS. MARCUS PERKINS A-4065-14T3

 STATE OF NEW JERSEY VS. MARCUS PERKINS 
A-4065-14T3 

The Post-Conviction Relief (PCR) Judge determined that defendant's requested appeal was not filed, but declined to accord relief. Following State v. Jones, 446 N.J. Super. 28, 34-35 (App. Div.), certif. denied, ___ N.J. ___ (2016), the court reversed, holding that a PCR judge has the authority to provide a forty-five-day period to file an appeal where ineffective assistance of counsel caused the failure to file a requested appeal. 

STATE OF NEW JERSEY VS. JAMES DENMAN A-5329-14T1

STATE OF NEW JERSEY VS. JAMES DENMAN 
A-5329-14T1 
In this case, we conclude the prosecutor and trial judge erroneously applied the presumption of PTI ineligibility to defendant's pending charge of third-degree attempted misapplication of funds from the Scotch Plains Police Athletic League (PAL), N.J.S.A. 2C:21-15 and 2C:5-1. Defendant, a Scotch Plains police officer, also served as the PAL treasurer. Faced with a financial crisis, he improperly borrowed $18,000 from PAL, but repaid the loan with interest four months later. The following month, the prosecutor learned of the loan and charged defendant. The prosecutor rejected defendant's PTI application, concluding defendant's unauthorized use of PAL's funds constituted a "breach of the public trust," contrary to PTI Guideline 3(i), because "defendant, a police officer, was Treasurer" of PAL, "an organization with a goal of uniting the local police and the local community through youth sports programs." Defendant appealed his PTI denial to the Law 

Division, which also concluded defendant committed a breach of the public trust. We reverse, concluding the record does not show a breach of public trust, and remand for the prosecutor to consider defendant's PTI application ab initio. 

Sunday, March 26, 2017

STATE OF NEW JERSEY VS. MELVIN HESTER/MARK WARNER/ ANTHONY MCKINNEY, AND LINWOOD ROUNDTREE A-0068-16T1

STATE OF NEW JERSEY VS. MELVIN HESTER/MARK WARNER/ ANTHONY MCKINNEY, AND LINWOOD ROUNDTREE 
A-0068-16T1/ A-0069-16T1/ A-0070-16T1 AND A-0071-16T1 
(CONSOLIDATED) 
These four cases involve application of the Ex Post Facto Clauses of the Constitution. The State appealed from orders dismissing indictments charging defendants with third-degree violations of their special sentences of community supervision for life (CSL), N.J.S.A. 2C:43-6.4(d). Before the alleged CSL violations, the Legislature amended N.J.S.A. 2C:43-6.4. As applied, the amended law retroactively increased defendants' punishment for committing their predicate crimes by raising the degree of the CSL violation from a fourth degree to a third degree, mandating the imposition of Parole Supervision for Life, and subjecting them to extended prison terms. 

In affirming the orders, we held that the commission of the predicate crime, for which defendants received the special sentence of CSL, rather than the alleged CSL violation, is the operative "crime" for determining whether the 2014 amended law violated the Ex Post Facto Clauses. 

STATE OF NEW JERSEY VS. TARIQ S. GATHERS A-4772-15T2

STATE OF NEW JERSEY VS. TARIQ S. GATHERS 
A-4772-15T2 

The State sought and the trial court granted a motion to require defendant, who had been arrested months earlier on weapons charges and was awaiting trial in the county jail, to provide a buccal swab. The State sought to conduct this search and seizure to compare defendant's DNA with DNA that might be recovered from a weapon found near the crime scene, even though defendant had provided DNA as a result of a previous conviction. Because of the timing of the request and, among other things, the fact that the State hadn't first determined the presence of useful DNA on the weapon, the court found the search unreasonable and reversed. 

STATE OF NEW JERSEY VS. C.W. A-2415-16T7

STATE OF NEW JERSEY VS. C.W. 
A-2415-16T7 
In this appeal by the State from a denial of its motion for defendant's pretrial detention, this court addresses several legal issues arising under the new Bail Reform Act, N.J.S.A. 2A:162-15 to -26. 
First, the scope of appellate review of a detention decision generally should focus on whether the trial court abused its discretion, but de novo review applies with respect to alleged errors or misapplications of law within that court's analysis. 
Second, a defendant's prior history of juvenile delinquency and probation violations is a permissible – and at times especially significant – consideration in the detention analysis. 
Third, in appropriate cases, a detention analysis should afford considerable weight to the tier classification of a defendant who has previously committed a sexual offense subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, and whose dangerousness and risk of re-offending have been evaluated on a Registrant Risk Assessment Scale. 
Fourth, a Pretrial Services recommendation to detain a defendant does not create, under Rule 3:4A(b)(5), a rebuttable presumption against release that a defendant must overcome. However, as the Rule states, such a recommendation to detain may be, but is not required to be, relied upon by the court as "prima facie evidence" to support detention. 
The panel also discusses the Impact of the Judiciary's March 2, 2017 clarification of the two-part recommendation formerly used by Pretrial Services for the highest-risk category of defendants. 

The case is remanded to the trial court for reconsideration in light of this guidance, and also to develop the record further on important and unresolved factual questions. 

J.I. v. New Jersey State Parole Board (A-29-15


 J.I. v. New Jersey State Parole Board 
(A-29-15; 076442) 

Arbitrarily imposed Internet restrictions that are not tethered to promoting public safety, reducing recidivism, or fostering an offender’s reintegration into society are inconsistent with the administrative regime governing CSL offenders. The complete denial of access to the Internet implicates a liberty interest, which triggers due process concerns. After the imposition of the total ban for J.I.’s Internet violations, he should have been granted a hearing. The matter is remanded to the full Parole Board for a hearing in which it must determine whether the total computer and Internet ban serves any public-safety, rehabilitative, or other penological goal. 

State v. Carl J. Garrison (A-38-15


 State v. Carl J. Garrison (A-38-15; 076537) 
The evidence of the strip poker game meets the rigorous test set forth in State v. Cofield, 127 N.J. 328 (1992), and therefore was admissible under Rule 404(b). The evidence was properly admitted at trial with an appropriate limiting instruction.