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

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

State v. Ronald Burns

7-26-07 (A-27-06)

When faced with the difficult dilemma of handling a recalcitrant
witness who had no valid basis to refuse to testify, the trial
court did not abuse its discretion by allowing the prosecutor to
call a witness who declined to answer specific questions before
the jury. In addition, the trial court properly instructed the
jury not to consider the facts in the questions that the witness
declined to answer, and that any error not objected to in the
charge does not require reversal of defendant’s conviction.

State v. Richard Wilson


State v. Richard Wilson, et al.
-consolidated with-
State v. James Franklin, et al.
-consolidated with-
State v. Regina Charles, et al.

In these appeals by a corporate surety from bail forfeiture
orders, we hold that the bright-line distinction, for purposes
of exoneration or remittance of bail, between non-appearing
defendants found to be in custody out-of-state and in-state has
lost its significance. We thus find State v. Erickson, 154 N.J.
Super. 201 (App. Div. 1977), no longer to be a proper expression
of the law. We remand the matters for further consideration of
whether bail can be exonerated or remitted at the time the
defendant is located in out-of-state custody and a detainer is
lodged, or whether such relief must await the defendant's return
to New Jersey.

We also suggest that it is inequitable for the State, which
has resources for locating defendants that are not available to
recovery agents, to fail to notify the court and the surety when
a defendant has been found in out-of-state custody, since the
absence of such notification may affect the entry of orders of
forfeiture and the costs of recovery expended by the surety.

State v. Alex Banks

07-26-07 A-2983-05T4

Defendant was convicted by a jury and contends that the
trial court erred in removing a deliberating juror and
substituting an alternate after the initial panel declared its
inability to reach a unanimous verdict and the court delivered a
Czachor charge. We conclude that when a question about a
juror's "inability" to proceed arises after the jury has
informed the court that it cannot agree on a verdict, the trial
court should rely on the presumption that the jurors have
deliberated in accordance with the initial charge and any
additional instructions that can be given consistent with
Czachor. If the jurors cannot reach a verdict thereafter, then
mistrial should be granted.

Monday, July 23, 2007

State v. Raul D. Lopez

07-20-07 A-4469-04T4

The mandatory minimum sentence requirement in the last
paragraph of N.J.S.A. 2C:13-1c(2), for certain categories of
kidnapping, twenty-five years without parole, is not amenable to
a sentence downgrade under N.J.S.A. 2C:44-1f(2).

In the Matter of Civil Commitment of J.M.B., SVP-358-04

07-20-07 A-6458-03T2

J.M.B. was civilly committed under the Sexually Violent
Predator Act, N.J.S.A. 30:4-27.24 to -.38. He appealed his
initial commitment, alleging he was wrongfully committed because
none of his convictions were sexually violent offenses as
defined by N.J.S.A. 30:4-27.26. Held that subsection (b) is a
catchall provision permitting the psychiatric experts and the
court to consider the factual circumstances of the offenses in
making the determination of whether the committee committed
sexually violent offenses and was a sexual predator under the

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 16, 2007

Brendlin v. California (US Supreme Court Rules passengers in cars have search rights)

No. 06-8120 Decided June 18, 2007

Police officers stopped a car to check its registration without reason to believe it was being operated unlawfully. One of the officers recognized petitioner Brendlin, a passenger in the car. The police verified that Brendlin was a parole violator and officers arrested Brendlin and searched him, the driver and the car finding methamphetamine paraphernalia. Brendlin was charged with possessing and manufacturing meth and moved to suppress the evidence obtained from the search of his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to stop the car which made the seizure of his person unconstitutional. The unanimous opinion recognized that passengers in vehicles stopped by the police are covered by the fourth amendment and may challenge the legality of the stop if arrested.

Held: when the police make a traffic stop, a passenger in the car, like the driver, is seized for fourth amendment purposes and so may challenge the stop?s constitutionality.

State v. Daniel C. McAllister

07-13-07 A-4604-04T4

A conviction for the elevated first degree offense of
endangering the welfare of a child by the production of
pornography proscribed by N.J.S.A. 2C:24-4b(3), which requires
the State to show that the defendant was a "parent, guardian or
other person legally charged with the care or custody of the
child," cannot be based solely on evidence that the defendant
was a live-in boyfriend of the victim's mother who had a de
facto parental relationship with the victim. Only a person who
has been assigned responsibility for a child's care or custody
by a court or public agency may be found to be "legally charged"
with the child's care or custody.

State v. Joseph R. Marolda, Sr.

07-12-07 A-2400-05T1

We apply the open fields doctrine in a case involving an
aerial observation of a corn field.

State v. Charles Brown

07-11-07 A-4980-05T1

Neither the doctrine of collateral estoppel nor fundamental
fairness preclude a criminal prosecution for the same events
following denial of a Final Restraining Order and dismissal of a
Domestic Violence complaint in the Family Part.

State v. Marcellus Williams

7-12-07 (A-26-06)

Marcellus R. Williams’ resistance and flight, which amounted to
obstruction, broke the link in the chain between the initial
unconstitutional investigatory stop and the later seizure of the
handgun. Under such circumstances, suppression of the evidence
is not warranted by the exclusionary rule.

State v. Raheem Means

7-11-07 (A-21-06)

A trial court may not set aside a plea agreement solely because
the prosecutor failed to notify the victims prior to entering
into the plea agreement.

Monday, July 09, 2007

State v. Jayson L. Conklin

07-06-07 A-2439-06T5

After the trial judge dismissed an indictment charging
defendant with terroristic threats contrary to N.J.S.A. 2C:12-
3(a) in connection with threats to kill the victim, we
reinstated the indictment, holding that threats to kill may be
prosecuted under either N.J.S.A. 2C:12-3(a) or N.J.S.A. 2C:12-
3(b) because the elements of subsection (a) differ from the
elements of subsection (b) and the prosecutor has the discretion
to seek an indictment under either statutory provision.

Friday, July 06, 2007

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

Monday, July 02, 2007

State v. Alturik Francis

6-27-07 (A-31/63-06)

Because the misuse of grand jury occurred before Francis’
indictment, the inquiry should have been whether the testimony
of the family members was relevant to the crimes under
investigation and not whether the grand jury was used for the
sole or dominant purpose of securing additional evidence against
the defendant for use in the upcoming trial. The trial court is
to determine whether the testimony of Francis’ family members is
relevant to the charges against Francis.

State v. Robert Silva

06-29-07 A-2332-06T5

On interlocutory review, we reversed a trial judge's
judicial notice, in a criminal trial, of another judge's factual
finding in a related domestic violence proceeding.

State v. David L. Franchetta, Jr.

06-28-07 A-1498-06T5

This case presents a novel issue as to whether a "rebound
effect" or a "hangover effect" from a previous ingestion of
cocaine constitutes being "under the influence" of a narcotic
drug pursuant to N.J.S.A. 39:4-50. We held that it does.
Although the cocaine ingested by defendant was not
pharmacologically active at the time of the incident, we found
that it was the proximate cause of his impaired behavior and
that he was therefore "under the influence" of a narcotic drug
for purposes of N.J.S.A. 39:4-50.