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

Friday, June 29, 2007

IMO Camden County Prosecutor // IMO Union County Prosecutor

06-18-07 A-6631-05T5; A-0593-06T5

The Union County and Camden County Assistant Prosecutors'
Associations appeal decisions of the Public Employment Relations
Commission denying their petitions for initiation of compulsory
interest arbitration under the Police and Fire Public Interest
Arbitration Act, N.J.S.A. 34:13A-14a to -16.6 (the Act). The
Act allows law enforcement officers engaged in performing police
services to utilize the compulsory interest arbitration
procedure of N.J.S.A. 34:13A-16 as a means of resolving
collective bargaining impasses between law-enforcement employees
and their public employers.

We held assistant prosecutors are not engaged in performing
police services within the scope of the Act because assistant
prosecutors: are employed by county prosecutors to perform legal
services in furtherance of county prosecutors' law enforcement
activities, are not vested with statutory police powers, and are
not enumerated in the non-exclusive list of employee groups
entitled to utilize compulsory interest arbitration.

State v. Joseph M. Clark

6-21-07 (A-9-06)

The chief investigator of the Court’s Advisory Committee on
Judicial Conduct must comply with a subpoena ad testificandum in
respect of the criminal trial at issue in the within matter.
Compliance with a subpoena after an indictment has issued and a
trial is poised to commence will not harm the ACJC’s
investigatory flexibility or risk unfairness to the judge
involved. More importantly, the interests of respect for, and
public confidence in, the Judiciary require public disclosure in
this instance.

Trooper Ronald Roberts, Jr. v. State of New Jersey, Division of State Police

6-21-07 (A-62-06)

When a criminal investigation of a State Trooper has ended with
a decision not to prosecute, the statutory “applicable time
limit” within which disciplinary charges against the Trooper
must be filed is forty-five days after the Superintendent of the
State Police has obtained the report of the internal
disciplinary investigation.

John Carter v. Township of Bordentown

6-20-07 (A-16-06)

The Appellate Division erred in treating the principle of
progressive discipline as a mandate of law. The offending
behavior alone supported the police officer’s removal.

Michelle Thurber v. City of Burlington

6-20-07 (A-66/67-06)

Under the circumstances presented in this appeal, the deputy
municipal court administrator’s position was not a confidential
judicial position under the disciplinary authority of the
Assignment Judge. The six-month suspension imposed by the Merit
System Board was not arbitrary, capricious or unreasonable.

State v. Porfirio Jimenez

6-18-07 (A-75-06)

In a capital cause prosecution, if a single juror finds that the
defendant has proved his or her mental retardation by a
preponderance of the evidence, the defendant is not eligible to
receive the death penalty.

Monday, June 25, 2007

State v. Breane Starr Blakney

12-20-06 A-6162-01T4

In this appeal of defendant's murder conviction arising out
of the death of her six-month-old infant, we found that the jury
charge on the limited purposes for which evidence of prior abuse
of the infant could be considered pursuant to N.J.R.E. 404(b)
was neither confusing nor vague. In addition, we concluded that
the prosecutor's summation, though highly charged and delivered
without objection from the defense, was not so egregious that
defendant was deprived of a fair trial. We agree, however, that
defendant's conviction for third-degree aggravated assault
should have been charged as a lesser included offense of second degree aggravated assault.

Judge Weissbard filed a dissenting opinion in which he
disagreed with the majority's conclusion that the trial court
properly instructed the jury on the 404(b) evidence. He also
concluded that the prosecutor's misstatements during summation
further emphasized the need for carefully tailored, complete and
forceful limiting instructions. In his view, these errors
resulted in extreme prejudice to defendant in a case where the
evidence, if properly considered by the jury, could have
supported a manslaughter verdict rather than the murder
conviction.

State v. Ryan Buda

12-20-06 A-4778-04T4

An excited utterance made by a child abuse victim to a DYFS
worker at a hospital, although admissible under state evidence
law, is inadmissible in this case as a result of evolving
federal constitutional jurisprudence under Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), and Davis v. Washington,__ U.S. __, 126 S. Ct. 2266, 165
L. Ed. 2d 224 (2006). There is a concurring opinion.

State v. Manuel B. Ortiz

12-19-06 A-4941-05T2

The question presented is whether a defendant who is
adjudicated not guilty by reason of insanity, N.J.S.A. 2C:4-1,
and released, pursuant to N.J.S.A. 2C:4-8b(2), may be subjected
to periodic Krol reviews as a condition of release. Although we
answered the question in the negative, we concluded that the
court possesses inherent authority to impose, as a condition of
release under N.J.S.A. 2C:4-8b(2), the submission of periodic
reports from the defendant's mental health provider concerning
defendant's treatment, compliance with his medication regimen,
and future prognosis.

State v. Franklin Saving Account Number 2067

12-07-06 A-1895-05T1

On motion of the State's adversary in this civil forfeiture
proceeding, the trial court quashed a subpoena for bank records
that did not comply with Rule 4:14-7(c), precluded the State
from issuing another, granted summary judgment against the State
and required the State to pay counsel fees pursuant to Rule 1:4-
8. Prior to commencing this forfeiture action, however, the
State demonstrated probable cause and obtained a court order
that authorized seizure of the account and compelled the bank to
surrender related records.

We conclude that it was a mistaken exercise of discretion
to impose a sanction tantamount to a dismissal of the State's
case under these circumstances. The deviation did not prejudice
the litigant or deprive him of the protection that Rule 4:14-
7(c) was designed to afford.

We also conclude that the court erred in imposing sanctions
under Rule 1:4-8. The moving party did not follow the
procedural requirements of Rule 1:4-8(b). Moreover, there was
no basis for a finding that the subpoena was issued for an
improper purpose or without the evidential support required at
this early stage of the proceeding. See R. 1:4-8(a)(1)-(4).

State v. Walter Tuthill

12-08-06 A-6548-04T1

We hold that a surety's obligation on a bail bond is not
necessarily released by a court's mistaken cancellation of the
bond, and that absent a showing by the surety of detrimental
reliance or a material increase in the risk originally
undertaken, a court is not bound by its error, has the power to
correct it, and acts within its discretion in ordering the bond
reinstated without the surety's consent.

State v. Mark Ruccatano

11-17-06 A-1695-05T1

The Remittitur Guidelines governing partial remission of
forfeited bail were promulgated by the Administrative Office of
the Courts in Administrative Directive #13-04 issued on November
17, 2004, and were endorsed by us in State v. Ramirez, 378 N.J.
Super. 355 (App. Div. 2005). In part, the Guidelines call for
"minimal remission" in situations where the surety "provided
minimal or no supervision while the defendant was out on bail,"
but the amount of the remission varies depending on whether the
surety did or did not "engage in immediate substantial efforts
to recapture the defendant." In this case, we addressed the
meaning of "immediate substantial efforts."

We held that the immediacy of the surety's efforts should
ordinarily be measured from the time the surety is informed of
the warrant/forfeiture, without reference to when it would or
should have learned of that fact if there had been proper
supervision.

We also held that "substantial efforts" is given meaning by
the use of the phrase, "reasonable efforts under the
circumstances," one of the listed factors to be weighed in
deciding the amount of the remission. We also equate reasonable
with effective. The word substantial does not relate solely to
the quantum of effort expended by the surety, but to the quality
of that effort.

Here, the surety, once made aware of the defendant's
default, immediately ascertained that he was incarcerated in
another county and notified the Prosecutor's office in the
county where the bail was posted. Though not much effort was
expended, the surety's efforts were effective in recapturing
defendant and were reasonable under the circumstances. As a
result, the surety's efforts were substantial for the purpose of
applying the appropriate Guideline.

State v. Darnell Bell

11-17-06 A-3850-04T4

Applying New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640,
109 L. Ed. 2d 13 (1990), we held that an illegal search of a
third party's residence, during which defendant was found and
arrested pursuant to a valid arrest warrant, does not justify
suppression of defendant's confession, made three hours later at
the police station. We rejected defendant's argument that we
should reach a different result under Article I, paragraph seven
of the New Jersey Constitution.

State v. Amy Eldridge

11-01-06 A-2656-03T4

Where the State and defendant offered contrasting theories
of causation in a vehicular homicide prosecution, failure to
charge volitional conduct of another as an intervening cause,
pursuant to N.J.S.A. 2C:2-3c, was reversible error. The State
argues that if the jury had accepted defendant's version of the
cause of the crash, she would have been found not guilty under
the "but-for" causation test of N.J.S.A. 2C:2-3a(1); and
therefore, the failure to give a jury instruction was harmless
error. We reject that argument.

State v. Michael A. O’Neill

09-21-06 A-0147-04T4

We reject defendant's claim that the two tape-recorded
statements he made to the police should have been suppressed
because they were the product of a two-stage interrogation
technique (question-first, warn-later) found to be improper by
the United States Supreme Court in Missouri v. Seibert, 542 U.S.
600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).

State v. Anthony Walkings

09-21-06 A-2218-03T4

On appeal, defendant challenged the trial judge's denial of
his motion for a new trial and the judge's refusal to conduct a
hearing into a juror's concerns about jury deliberations in this
criminal matter. The juror first communicated his concerns to
the prosecutor's office the day after the verdict was rendered;
the prosecutor's office later referred the matter to the trial
judge. On appeal, the court agreed that the trial judge should
not have further explored the juror's concerns through his own
ex parte, unrecorded discussions with that juror, holding that
it is improper for a judge to have an ex parte communication
with a juror even after deliberations are complete and after the
jury has been discharged. Due to inadequacies in the record on
appeal, the court held that further proceedings were required in
order to amplify and illuminate the content of the juror's
communications with the prosecutor's office and the trial judge.

State v. Marshall Rountree

09-21-06 A-2043-02T1;A-5014-02T1

In a consolidated opinion, we affirmed the denial of postconviction
relief petitions in two counties, addressing two
issues. First, we held that State v. Franklin, applying
Apprendi to second-offender Graves Act mandatory extended-term
sentences, does not apply retroactively in the context of this
collateral review. Any broadening of Franklin's pipeline
retroactivity can come only from the Supreme Court.
Second, we addressed defendant's ineffective-assistance
argument, namely, that he was prejudiced by the failure of
counsel in both counties to move, pursuant to Rule 3:25A-1, for
consolidation of the pending indictments for purposes of plea
negotiations and sentencing. We concluded that counsel in such
circumstances should move for consolidation, and the failure to
do so established the first prong of defendant's ineffective assistance
claims.

We concluded, however, that defendant could not establish
the second prong of an ineffective-assistance claim. Defendant
was charged with Graves Act crimes in each county, and he
contended that if he had been sentenced in a single proceeding,
he would have avoided a second-offender extended term. For
purposes of this appeal, we assumed, by analogy to State v.
Owens (but without so deciding), that defendant's premise was
correct. But because defendant rejected a plea offer that was
as favorable as any he could have expected in a consolidated
plea offer, he could not prove that counsels' failures likely
made a difference.

Sunday, June 17, 2007

State v. Rahmil O’Neal

5-22-07 (A-94/95-05)

Based on the observations made by law enforcement officers,
there was probable cause to search and arrest O’Neal. The
police officer’s question to O’Neal that elicited his response
without prior Miranda warnings violated Miranda, but was
harmless under the circumstances.

State v. Christopher Romero

5-21-07 (A-109-05)

The jury received ample instruction about the need to examine
carefully the identification made by the eyewitness, and Romero
was not denied a fair trial without a tailored cross-ethnic
identification charge. The Court uses this opportunity to
refine the out-of-court identification charge so that it will
alert jurors in all eyewitness identification cases that such
testimony requires close scrutiny.

State v. Brian Wakefield

5-7-07 (A-37-04)

Wakefield’s penalty phase proceedings were fair, the death
sentence was properly imposed, and his death sentence is not
disproportionate.

State v. Robert a. Figueroa

4-26-07 (A-38-06)

The trial court’s supplemental jury charge, which did not
include any repetition of the language from the appropriate
initial charge that jurors “not surrender your honest
convictions as to the weight or effect of the evidence solely
because of the opinion of your fellow jurors, or for the mere
purpose of returning a verdict,” and which suggested that
deliberations might continue through the end of the week and
into the weekend, had the effect of coercing the dissenting
juror or jurors into agreeing with the verdict announced shortly
after the supplemental charge and thus Figueroa is entitled to a
new trial.

State v. Abdul Webster

4-25-07 (A-37-06)

Judgment of the Appellate Division is affirmed substantially for
the reasons expressed in Judge Payne’s written opinion in the
Appellate Division. If a sentence is subject to the No Early
Release Act’s mandatory-minimum-sentence provision, making
Webster ineligible for parole during the first eighty-five
percent of his sentence, the commutation and work credits cannot
be used to reduce that eighty-five percent parole disqualifier.

State v. Jeffrey Drury

4-24-07 (A-110-05)

Carjacking is not a predicate offense that serves to elevate a
sexual assault to the first-degree offense of aggravated sexual
assault; and Drury must be resentenced on the kidnapping
convictions.

State v. Calvin Lee

4-19-07 (A-34-06)

A defendant is entitled to discovery to support racial profiling
claims and the attenuation doctrine should be considered only
after it is determined that a defendant is a victim of racial
profiling.

State v. Lawrence A. Brown

4-17-07 (A-7-06)

When there is no governmental compulsion involved, the State may
cross-examine a defendant concerning his pre-arrest silence to
challenge his self-defense testimony.

State v. Michael Tucker

4-17-07 (A-6-06)

The prosecutor’s comments about inconsistencies in Tucker’s
statements did not constitute an unconstitutional comment on
silence.

State v. Ahmed F. Elkwisni

4-17-07 (A-24-06)

A prosecutor can cross-examine a defendant concerning
inconsistencies between his or her post-Miranda statement to the
police and his testimony at trial.

State v. Jayson S. Williams

4-11-07 (A-12-06)

The post-crime consciousness of guilt evidence is relevant to
the mental state of Williams at the time of the shooting and is
admissible to prove the crime of reckless manslaughter.

State v. Michael Colbert

4-4-07 (A-108-05)

The procedural methodology recognized in State v. W.A. was
intended for purely prospective application. The Court is
satisfied that defendant received his constitutional entitlement
as he was fully present during voir dire and no error occurred.

State v. Steven R. Fortin

3-28-07 (A-112-05)

The State may introduce material details of the sexual assault
committed by Fortin in Maine to present the bite-mark evidence
of this crime in context, subject to specific jury instructions
explaining the limited use of such evidence. The FBI’s Violent
Criminal Apprehension Program database is not admissible to
prove a signature crime.

State v. Randi Fleischman

3-19-07 (A-4-06)

When a defendant provides to officials in connection with a
fraudulent claim a document or oral narrative that contains
material facts relating to the claim, each such document or
narration is a “statement” equating to an “act” of insurance
fraud. The Court rejects the assertion that every discrete fact
within a narrative about a single claim amounts to an “act” of
insurance fraud.

State of New Jersey v. Pascal DuBois

3-8-07 (A-102-05)

The record amply demonstrates that defendant was sufficiently
informed to knowingly and intelligently waive his right to
counsel. Our careful review of the record satisfies us that the
trial court did not abuse its discretion in finding that
defendant knowingly and intelligently waived his right to
counsel.

State of New Jersey v. Brian W. Samuels

1-31-07 (A-88-05)

The State submitted sufficient evidence from which a jury could
conclude beyond a reasonable doubt that Samuels conspired to and
did commit an armed robbery. Nonetheless, the convictions for
conspiracy and armed robbery must be reversed and retried in
view of the trial court’s failure to charge the lesser-included
offense of attempted robbery and the court’s improper charge on
the elements of conspiracy and accomplice liability.

State v. John O’Hagen

1-24-07 (A-70-05)

The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1-
20.17-20.28, as amended, does not violate the rights guaranteed
by the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, Paragraphs 1 and 7 of the New Jersey
Constitution.

A.A., by his parent and guardian B.A., v. Attorney General of the State of New Jersey et als.

1-24-07 (A-105-05)

DNA test results lawfully obtained pursuant to the New Jersey
DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17-
20.28, as amended, may be used to solve crimes committed prior
to the taking of the DNA test.

State v. Vincent Dispoto

1-18-07 (A-103-05)

Because there was insufficient evidence to support the issuance
of the underlying domestic violence search warrant, the criminal
search warrant was invalid as fruit of the poisonous tree.
While this holding renders moot the Appellate Division’s finding
that failure to re-administer Miranda warnings at the time of
arrest required suppression of Dispoto’s post-arrest
incriminating statements, the Court adds in respect of the issue
of the Miranda warnings only that no bright line or per se rule
governs whether re-administration is required following a precustodial
Miranda warning.

State v. Breane Starr Blakney

12-20-06 (A-117-05)

We agree with Judge Weissbard substantially for the reasons
expressed in his dissenting opinion. We therefore reverse
defendant’s murder conviction and remand for a new trial on that
charge. In addition, we underscore the importance of wellcrafted
limiting instructions when the State introduces othercrime
evidence pursuant to N.J.R.E. 404(b), and remind
prosecutors of their obligation to keep their summation remarks
within acceptable bounds of advocacy.

State v. Porfirio Jimenez (A-50-05)

10-24-06 (A-50-05)

The absence of mental retardation is not akin to a capital
trigger, and Jimenez has the burden to prove by a preponderance
of the evidence that he is retarded.

In the Matter of Registrant T.T.: Application for Judicial Review of Notification and Tier

10-3-06 (A-58-05)

T.T.’s lack of sexual motivation does not alter the fact that he
committed the predicate offense of aggravated sexual assault and
Megan’s Law therefore applies. The intra-familial nature of
T.T.’s offense, however, is a circumstance that warrants the
less stringent community notification of a Tier One
classification.

State v. Keith R. Domicz

9-20-06 (A-42-05)

Under the circumstances, the warrantless thermal scan and
seizure of electricity records did not constitute prior unlawful
conduct that could tainted the later search. Grand jury
subpoena procedures adequately protect any privacy interest in
utility records. Law enforcement officers are not required to
have a reasonable and articulable suspicion that criminal
activity is occurring within a home before seeking consent to
search the residence.