Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
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Wednesday, February 20, 2008

Marijuana 2C:35-10

The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses:

NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish;
NJSA 2C:35-10(b), using or being under the influence of CDS;
NJSA 2C:35-10(c), failure to deliver CDS to police;
NJSA 2C:36-2, possession of drug paraphernalia

Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed.

Moreover, the court must suspend the defendant's driver's license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.

If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge.

CONDITIONAL DISCHARGE

New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted "supervisory treatment" under 24:21-27, 2C:43-12 or 2C: 36A-l may apply for a conditional discharge. The court upon notice to the prosecutor and subject to 2C: 36A-l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).

Since the granting of a conditional discharge is optional to the court, you should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community.

You should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendant's driver's license between six months and two years.

The conditional discharge period is also between six months and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.

SUPPRESSION MOTION

A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5-7. The court rules have been amended to provide the Suppression Motion can be held directly in the Municipal Court. Your attorney can subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is very important.

PRE-TRIAL

The Municipal Court prosecutor is responsible for providing discovery. Rules 3:13-3, 7:4-2, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990). The State must prove the substance seized was a controlled dangerous substance (CDS).

To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35-19. If the State intends to introduce the lab certificate at the trial, a notice of an intent to proffer that certificate and all reports relating to the analysis of the CDS shall be served on defense counsel at least 20 days before the proceeding begins. This includes an actual copy of the lab certificate.

Within 10 days of receipt, the Defense counsel must notify the Prosecutor in writing. This will not only alert the Prosecutor to the Defendant's objections concerning the admission of the lab certificate into evidence, but also set forth grounds for the objection, 2C:35-19c. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence.

THE TRIAL

The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). The State must prove knowledge or purpose on the part of the defendant.

Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Purpose means it was defendant's conscious intention to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990).

If actual possession cannot be demonstrated, defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975).

In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held that there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS secretly contained in envelopes in a vinyl bag resting on the back seat next to another passenger in the car.

In addition to establishing if the item seized is a CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutor's witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug.

If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence.

CONCLUSION

Drug related offenses carry substantial penalties which will effect a person for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances. Do not permit drug use and you will not have to worry about the substantial penalties.



New Drug Possession Law:

2C:35-10 Possession, use or being under the influence, or failure to make lawful disposition

2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.

a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:

(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $35,000.00 may be imposed;

(2) Any controlled dangerous substance, or its analog, classified in Schedule V, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $15,000.00 may be imposed;

(3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish is guilty of a crime of the fourth degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or

(4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person.

Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.

b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.

In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.

c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.

Amended 1988, c.44, s.5; 1997, c.181, s.6.

2C:35-10.2 Possession, etc. of gamma hydroxybutyrate; penalties 4. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, gamma hydroxybutyrate unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).

b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.

L.1997,c. 194, s.4.

2C:35-10.3 Possession, etc. of flunitrazepam; penalties 6. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, flunitrazepam, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).

b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.

L.1997,c. 194, s.6.



Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.

Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.

When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.

Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.

Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment

Monday, February 04, 2008

State of New Jersey in the Interest of D.Y.

02-04-08 A-0490-07T4

The prosecutor filed a complaint in the Family Part
charging a juvenile with aggravated assault that led to the
victim's death. More than 30 days later, after further
investigation indicated that the juvenile had far greater
responsibility for the death, the prosecutor dismissed the first
complaint and filed a second complaint charging murder. Within
30 days of the second filing, the prosecutor moved for waiver of
the murder complaint to the Law Division, where the juvenile
would be tried as an adult. We reversed the denial of the
prosecutor's motion, holding: (1) the motion was timely because
the 30 time limit of N.J.S.A. 2A:4A-26(d) and Rule 5:22-2(a) did
not begin to run on the murder complaint until it was filed; (2)
the development of the additional incriminatory evidence after
the filing of the first complaint provided good cause for an
extension of the 30-day time limit even if that time began to
run from the filing of the first complaint.

State v. Quinn Marshall

01-29-08 A-3397-05T4

A judge issued a search warrant for an apartment in a
multiple unit structure but required that the police further
investigate which of two apartments was allegedly involved in
criminality; he did not require that the police return with this
additional, necessary information, but instead issued the
warrant on the condition that it not be executed until that
additional information was obtained. The court concluded that
this process violated the constitutional requirement that a
search warrant be issued by a "neutral and detached magistrate"
because the judge ceded his authority to the discretion of the
police.

The State also argued that the warrant was sufficient
insofar as it had authorized the police to search whichever
apartment was "controlled" or "possessed" by a particular
person. The court held that this loose description did not
conform to the constitutional requirement that the place to be
searched be "particularly describe[d]" in the warrant.

State v. Morgan C. Scott

01-28-08* A-5813-03T4

The primary issue in this case was whether defendant
actually or constructively possessed cocaine that was found in
the vehicle in which he was a passenger. With one judge
dissenting, we affirmed the trial court's decision to deny
defendant's motion for acquittal and his motion for a new trial.
But we remanded for a determination regarding the voluntariness
of statements attributed to defendant and for resentencing.
[*Approved for Publication date]

State v. Ernest J. Read, III

01-24-08 A-1751-03T4

In determining whether to waive a charge of a Chart 1
offense against a juvenile over the age of sixteen, the Family
Part is not required to consider the juvenile's alleged
psychological impairments. N.J.S.A. 2A:4A-26, which authorizes
the Family Part to waive jurisdiction to adult court based on
judicial fact-finding by a preponderance of the evidence, does
not violate a juvenile-defendant's jury trial rights under the
principles set forth in Apprendi and Blakely.

State v. B.M.

01-11-08 A-4075-06T5

We hold that a defendant's decision to introduce certain
evidence may trigger the right of the State to rebut any unfair
implication of that evidence. In this matter where sexual abuse
is alleged by a ten-year-old child, we affirm the trial court's
exercise of discretion to permit the defendant to elicit on
cross-examination that the child had also alleged separate
incidents of sexual abuse by three other persons. We remand,
however, for further consideration, in light of the doctrine of
"opening the door," as to whether the State may introduce
evidence of juvenile delinquency adjudications pursuant to
guilty pleas by the other three alleged abusers.

State v. Thomas Conroy, Jr.

01-09-08 A-2384-06T5

The question presented is whether a defendant, who has had
three prior convictions for DWI, is entitled to the benefit of
the ten-year step-down provision of N.J.S.A. 39:4-50(a)(3) on a
fourth conviction, where the first conviction was entered by way
of an uncounseled plea. We answer the question in the
affirmative, determining that when defendant appeared before the
Law Division he stood as a third offender, not a fourth
offender, for the limited purpose of the trial court imposing a
jail sentence under the enhanced sentencing provision of the DWI
statute.

State v. David L. Wilder

1-31-08 (A-87-06)

Based on the State’s evidence and giving the State the benefit
of all favorable inferences, a jury reasonably could have
convicted defendant of serious-bodily-injury murder; thus, the
trial court did not err by sending the murder charge to the
jury. The Court rejects continued use of the Christener rule;
overcharging errors must be reviewed under the “unjust result”
standard established in Rule 2:10-2.

State v. William J. Allegro

1-29-08 (A-119-06)

Allegro’s ineffective assistance of counsel claims arising from
defense counsel’s failure to investigate potential witnesses and
to call those witnesses do not satisfy the two-pronged
Strickland/Fritz standard. His claims in respect of counsel’s
ineffectiveness in the plea discussions and negotiations
requires a remand for development of a more comprehensive record
and the PCR court’s conclusions based on that record.

State v. George Jenewicz

1-28-08 (A-78-06)

The cumulative impact of the trial court’s preclusion of
testimony from two defense witnesses and the prosecution’s
improper cross-examination of the defense expert and
disparagement of the defense expert during summation prejudiced
the fairness of defendant’s trial and cast doubt on the
propriety of the jury’s verdict, warranting a new trial.

State v. Manuel B. Ortiz

1-17-08 (A-109-06)

Krol periodic review hearings must be held for those defendants
acquitted by reason of insanity who are committed under N.J.S.A.
2C:4-8(b)(3) as well as for those who are released subject to
supervision or conditions pursuant to N.J.S.A. 2C:4-8(b)(2), but
not for those who are released without supervision or conditions
as provided in N.J.S.A. 2C:4-8(b)(1).

State v. Frederick T. Hamilton

1-16-08 (A-57-06)

The trial court erred in concluding that it had no ability to
ameliorate the undue prejudice to defendant through sanitization
of his earlier conviction. This Court’s prior holding that
sanitization is mandatory in situations in which a prior
conviction is the same or similar to the present charge did not
foreclose from trial courts the discretion to consider
sanitization in other circumstances that pose a risk of undue
prejudice to a defendant.

State v. Morgan Scott

1-10-08 (A-115-06)

The judgment of the Appellate Division is affirmed substantially
for the reasons expressed in the Appellate Division’s majority
opinion.