Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
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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-

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

In the Matter of Expungement Application of G.R.

08-03-07 A-0079-06T1

N.J.S.A. 2C:35-5a(1), criminalizes the knowing or
purposeful possession of a CDS "with intent to manufacture,
distribute or dispense" to another. The statute does not draw a
distinction between distributing or dispensing to another in
exchange for money and a gratuitous transfer of the narcotics.
Either conduct constitutes the crime as defined by N.J.S.A.
2C:35-5a(1). However, for purpose of expungement, it does make
a difference. A sale of CDS is a bar to expungement; but a
transfer for no consideration is not. Therefore, we hold that
the facts must be examined to determine if the underlying
possession of the CDS was with intent to sell, as opposed to
dispense or distribute without a sale.

A judgment of conviction for possession of a CDS "with
intent to dispense or distribute" contrary to N.J.S.A. 2C:35-
5a(1), by itself is not conclusive of intent to sell or intent
to dispense for no consideration. The description of the
offense in the judgment of conviction does not aid the judge in
deciding whether the statutory bar applies in a given situation.
To the extent that State v. P.L., 369 N.J. Super. 291 (App. Div.
2004) makes such a suggestion, we disagree with that opinion.

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.