State v. Peter O’Brien (A-89-08)

State v. Peter O’Brien (A-89-08)
12-29-09

Defendant was entitled to face a single adversary, the
State. He should not have had to bear the
consequences of a judge who appeared to disbelieve him
and his expert witness, revealed that disbelief to the
jury, and supported a witness adverse to him. Because
that conduct was clearly capable of producing an
unjust result, a new trial is in order. However, the
trial judge’s refusal to provide the jury with written
instructions did not constitute plain error and
therefore does not warrant reversal.

State v. Richard Chippero (A-50-08)

Although the evidence that justifies both an arrest
and the issuance of a search warrant must support a
finding of probable cause, the two probable cause
determinations are not identical. A finding of
probable cause as to one does not mean that probable
cause as to the other must follow, nor does the lack
of one compel a finding of the lack of proof for the
other. Accordingly, nothing in the Supreme Court’s
earlier holding in this case (Chippero I) should be
perceived as having compelled the suppression of the
evidence seized from defendant’s home.

Man pleads guilty to injuring Edison woman in crash while fleeing North Brunswick shooting

Man pleads guilty to injuring Edison woman in crash while fleeing North Brunswick shooting
http://www.mycentraljersey.com/article/20091217/NEWS/91217033/1005/NEWS0101
By KEN SERRANO
STAFF WRITER

A man charged as an accomplice in the slaying of a Roselle man on a street in North Brunswick in May pleaded guilty Thursday to aggravated assault in connection with an accident he caused while fleeing police after the shooting.

The murder charge that Andre Trott, 30, of Bermuda faced in the May 7 killing of 31-year-old Shakir McCray will be dismissed as part of the plea agreement.

Under the terms of the plea deal, Trott faces an 8-year prison sentence for injuring Yolanda Rivera, 44, in Edison. Sentencing for Trott, a reputed member of the Bloods street gang, is scheduled for March 8.

The man accused of being the triggerman, Cadre Williams, 31, of Georgia, committed suicide at Middlesex County Adult Correction Center in North Brunswick days after his arrest. Trott was charged as the getaway driver.

"As an accomplice, we would have had to prove shared intent," Keith Warburton, assistant Middlesex County prosecutor, said following the brief hearing in Superior Court, New Brunswick. "With the other person who committed the murder dead, it was difficult determining that."

An eluding charge against Trott will also be dismissed. Warburton said the charge would not have altered his sentence had he been convicted of it. He pleaded guilty to the worst offense, causing bodily injury during flight from police, Warburton said.

Judge Frederick DeVesa told Trott that it was a virtual certainty that he would be deported following his release from prison. Trott would have to serve slightly less than seven years before becoming eligible for parole if DeVesa gives Trott the maximum sentence under the terms of the plea agreement.

A woman identified as a family member of McCray declined comment outside the courtroom.

McCray was shot several times that Thursday morning outside the Hearthwood development on Boice Drive in North Brunswick. Warburton said the shooting involved a marijuana deal gone bad.

Williams confessed to the murder, authorities said. Trott did not make a statement to the police.

Trott was identified in court following the murder charge as a high-ranking member of the Bloods street gang.

Edison woman charged with leaving sleeping baby in car

Edison woman charged with leaving sleeping baby in car

http://www.mycentraljersey.com/article/20091218/NEWS/91218063/Edison+woman+charged+with+leaving+sleeping+baby+in+car

An Edison township woman was charged Thursday with leaving her sleeping baby in the car while she returned something at Walmart, police said.

Officers and medics responded to the Route 27 and Vineyard Road store about 2:55 p.m. after passers-by saw the 16-month-old girl in the rear of the 2000 Honda Civic, Lt. Sal Filannino said. Police used a lockout tool to open the door and retrieved the toddler, who had been unattended for about 25 minutes but was unharmed.

Store employees located Shweta Nagpal, 29, who came outside and was arrested on charges of neglect of a child, Fiplannino said. She was released after processing.

The lieutenant said the state Division of Youth and Family Services was notified.

Nagpal's age was not immediately available.

STATE OF NEW JERSEY V. STEVEN MUSTARO A-2582-08T4

STATE OF NEW JERSEY V. STEVEN MUSTARO
A-2582-08T4 12-14-09

We consider defendant's appeal from the denial of a post-
sentence motion to vacate his plea of guilty to driving while
intoxicated. The motion was predicated on a claim that the
State withheld exculpatory evidence, but by the time the motion
was filed the evidence — a videotape recorded by the camera in
the arresting officer's patrol car — had been destroyed through
reuse in accordance with the police department's procedures.
Applying State v. Parsons, 341 N.J. Super. 448 (App. Div. 2001)
and State v. Marshall, 123 N.J. 1, 107-09 (1991), we conclude
that defendant failed to establish that he would not have
admitted to driving if he had access to the videotape prior to
the plea, and we further conclude that the denial of his motion
was fully consistent with a proper application of the principles
set forth in State v. Slater, 198 N.J. 145 (2009).

STATE OF NEW JERSEY V. R.T. A-1131-06T4

STATE OF NEW JERSEY V. R.T.
A-1131-06T4
12-16-09

The majority reversed defendant's conviction for multiple
counts of first-degree aggravated sexual assault and one count
of second-degree endangering the welfare of a child finding
defendant's right to a fair trial was prejudiced by the court
charging the jury with intoxication as possibly negating an
element of the crime, over defense counsel's objection. The
facts in evidence do not clearly indicate a rational basis for
the conclusion that defendant suffered such a "prostration of
faculties" as to render him incapable of forming the requisite
mental state to commit the crimes and the instruction interfered
with defense counsel's stated trial strategy.

The dissent found the trial court's discretion to give a
"road map" instruction on voluntary intoxication is not limited
to cases in which the charge is "clearly indicated" by the
evidence. Since the charge did not have the capacity to lead to
an unjust result here, the trial court did not commit reversible
error in giving the charge.

STATE VS. CHRISTOS E. TSETSEKAS A-1832-08T4

STATE VS. CHRISTOS E. TSETSEKAS
A-1832-08T4 12-14-09

We reversed the Law Division conviction and required
dismissal of the DWI charge due to violation of defendant's
right to a speedy trial. The extensive delay in adjudicating
this matter, caused solely by the State's repeated lapses in
preparation and the failure to secure its witnesses, infringed
upon defendant's due process rights.

J.S. VS. J.F. A-2552-08T2

J.S. VS. J.F.
A-2552-08T2 12-10-09

In this appeal, the court examined the factors relevant to
determining whether a dating relationship exists for purposes of
the Prevention of Domestic Violence Act and concluded that a
plaintiff is not automatically disqualified from claiming a
dating relationship solely because defendant may have paid
plaintiff for her company.

STATE V. DANA RONE A-5850-07T4/A-6192-07T4

STATE V. DANA RONE
A-5850-07T4/A-6192-07T4 (consolidated) 12-09-09

A decision by the Prosecutor's Office to waive forfeiture
of office under N.J.S.A. 2C:51-2 is not analogous to
prosecutorial decisions with respect to pretrial intervention
and is not entitled to enhanced deference or judicial review.
Waiver of forfeiture is a judicial function, not a prosecutorial
one.

State v. Whitaker (A-67-08) 12-7-09

State v. Quadir Whitaker (A-67-08) 12-7-09

Defendant could not be found guilty as an accomplice
of robbery and felony murder unless he shared the
principal’s intent to commit the theft before or at
the time the theft or attempted theft was committed.
Because the prosecutor improperly advised the jury
that it could convict defendant or robbery and felony
murder solely on the ground that he aided in the
robber’s escape, even if he did not participate or
assist in any way in the attempted theft or killing,
the Court is constrained to order a new trial.

In the Matter of the State Grand Jury Investigation (A-80-08)

In the Matter of the State Grand Jury Investigation
(A-80-08) 11-23-09

The Rules of Professional Conduct forbid a lawyer from
accepting compensation for representing a client from
one other than the client unless three factors
coalesce: (1) the client gives informed consent; (2)
there is no interference with the lawyer’s
independence of professional judgment or with the
lawyer-client relationship; and (3) information
relating to the representation of the client is
protected. Applying these Rules, the Court affirms
the trial court’s denial of the State’s motion to
disqualify attorneys retained and paid by an employer
to represent employees who were potential witnesses in
a grand jury investigation into the employer’s
conduct.

State v Urgrovics full opinion

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4906-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOEL M. UGROVICS,

Defendant-Appellant.

________________________________

Submitted October 20, 2009 - Decided

Before Judges Skillman, Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,
Law Division, Morris County, Municipal Appeal
No. 08-055.

Brian R. Donnelly, attorney for appellant.

Robert A. Bianchi, Morris County Prosecutor,
attorney for respondent (Paula Jordao, Assistant
Prosecutor, on the brief).

The opinion of the court was delivered by

FUENTES, J.A.D.

Defendant Joel M. Ugrovics was arrested and charged with
driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). This
appeal concerns the admissibility of the results of an Alcotest
administered to defendant in connection with this charge. By
leave granted, the State appeals from the order of the Law
APPROVED FOR PUBLICATION

December 2, 2009

APPELLATE DIVISION
December 2, 2009
A-4906-08T4
2
Division suppressing the results of the Alcotest because the
arresting officer, rather than the Alcotest operator, was the
person who observed defendant during the twenty minutes prior to
him taking the test. In reaching this conclusion, the trial
court relied on what it characterized as the "procedures"
mandated by the Supreme Court in State v. Chun, 194 N.J. 54,
cert. denied, ____ U.S. ____, 129 S. Ct. 158, 172 L. Ed. 2d 41
(2008).
We reverse. Consistent with the underlying principles
articulated by the Court in Chun, we hold that the State is only
required to establish that the test subject did not ingest,
regurgitate or place anything in his or her mouth that may
compromise the reliability of the test results for a period of
at least twenty minutes prior to the administration of the
Alcotest. The essence of this requirement is to ensure that the
test subject has been continuously observed during this critical
twenty-minute window of time. The identity of the observer is
not germane to this central point. The State can meet this
burden by calling any competent witness who can so attest.
We will limit our factual recitation to the events that
relate directly to the discrete issue under review.


A-4906-08T4
3
I
On July 19, 2008, Riverdale Police Department Officer Eric
Hollenstein was conducting radar checks on Hamburg Turnpike when
he observed defendant's vehicle traveling at forty-five m.p.h.
in a twenty-five m.p.h. zone. When Hollenstein stopped the car
to issue a summons for speeding, he detected an odor of alcohol
emanating from inside the vehicle and noticed that Ugrovics, the
only person in the car, had glassy eyes. In response to
Hollenstein's questions, defendant admitted that he had consumed
alcoholic beverages that evening.
Against these facts, Hollenstein concluded that he had a
sufficient basis to ask defendant to perform a series of field
sobriety exercises. Given the limited scope of our review, we
will dispense with describing the details of the tests defendant
performed. Suffice it to say that despite Hollenstein's clear
verbal instructions, defendant failed to perform these tests as
directed. Based on the totality of the circumstances,
Hollenstein concluded that he had probable cause to charge
defendant with DWI and arrested him accordingly.
Hollenstein transported defendant from the scene of the
motor vehicle stop to the Riverdale Police Station for the
purpose of processing the arrest and administering an Alcotest
to defendant. Officer Robert DiGirolamo was the station's
A-4906-08T4
4
Alcotest operator on that date and was therefore the person who
administered the test to defendant.
For purposes of this appeal the State stipulated that
Hollenstein would have been the only witness it would have
called who would have testified that he continuously observed
defendant for at least twenty minutes before defendant took the
Alcotest. On this sole issue, the State proffered, and the
trial court accepted, that Hollenstein would have testified that
during this twenty-minute window of time defendant did not burp,
regurgitate or ingest any alcohol. The two separate breath
samples taken from defendant yielded a blood alcohol
concentration (BAC) of .13.
Defendant pled guilty before the Riverdale Municipal Court
to DWI, reserving his right to challenge the results of the
Alcotest based on the State's failure to show that the Alcotest
operator was the person who observed defendant for a period of
at least twenty minutes before the test was administered. In
the course of accepting defendant's guilty plea, the Municipal
Court Judge framed the issue thusly:
[MUNICIPAL] COURT: Okay. So I'll make it
clear that in regard to this conditional
plea, . . . [t]here is no issue that the
defendant in this case was observed for 20
minutes[.] [B]ut he was not observed by the
Alcotest operator, which (sic) is Officer
DiGerolmo . . .[.]

A-4906-08T4
5
[MUNICIPAL PROSECUTOR]: Yes, Your Honor.

[MUNICIPAL] COURT: He was observed by
Officer Hollenstein, who did observe him for
the 20-minute period –

[MUNICIPAL PROSECUTOR]: At headquarters.

[MUNICIPAL] COURT: -- at headquarters, but
he is not a certified Alcotest operator.

[MUNICIPAL PROSECUTOR]: Correct.

[MUNICIPAL] COURT: No other officer had
made observations, so there's [no] other
officer involved, except Officer Hollenstein
and that there are no other issues dealing
with any foreign substance entering
Defendant's mouth or vomiting or any use of
alcohol or any other regurgitation issue.

In addition, the only issue then on the
appeal [to the Law Division] would be
whether the 20-minute observation has to be
conducted by the operator to meet the [Chun]
standard. Does that sound correct?

[MUNICIPAL PROSECUTOR]: Yes, Your Honor.

[DEFENSE COUNSEL]: Yes.

In accepting defendant's conditional guilty plea, the
Municipal Court Judge rejected defendant's argument that, under
Chun, the only person competent to observe defendant during this
critical twenty-minute window of time was the operator of the
Alcotest.
On defendant's appeal to the Law Division pursuant to Rule
3:23-2, the court accepted defendant's argument and suppressed
A-4906-08T4
6
the Alcotest BAC reading. The Law Division Judge gave the
following explanation in support of his ruling:
So the Court finds that - in this case, as
the State conceded in their (sic) - it was
stipulated - the State meaning the
prosecutor below - that the Alcotest
operator did not observe the defendant for
the required 20-minute period. Instead, he
was observed by Officer Hollenstein, who was
not a certified Alcotest operator. That may
or may not be of any moment.

As such, the Alcotest operator did not
observe defendant for the required 20
minutes prior to administering the test.
Therefore, based upon this Court's reading
of Chun, the readings are deemed
inadmissible because the procedure which was
mandated by Chun was not followed.

The Court will vacate the guilty plea
entered, which was conditional. Remand the
matter to the Borough of Riverdale Municipal
Court to be heard on the other testimony,
including the testimony dealing with what
I'll call the psycho-physical tests.

II

Against this backdrop, we will now address the central
issue in the case. We start by reaffirming our standard of
review.
Ordinarily, we review a judgment of the Law Division under
a sufficiency of the evidence standard. That is, in conducting
the review required under Rule 3:23-8(a), the Law Division's
judgment must be supported by sufficient credible evidence in
the record. State v. Segars, 172 N.J. 481, 488 (2002).
A-4906-08T4
7
However, "[a] trial court's interpretation of the law and the
legal consequences that flow from established facts are not
entitled to any special deference" on appeal. Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Here, because the Law Division's judgment rested entirely on its
interpretation of the Court's opinion in Chun, our scope of
review is de novo, without affording such judgment any special
deference.
In Chun, the Court addressed the scientific reliability of
the Alcotest 7110 MKIII-C evidentiary breath-testing device.
Chun, supra, 194 N.J. at 65. After reviewing the findings of
the Special Master, the Supreme Court held that "the Alcotest,
utilizing New Jersey Firmware version 3.11, is generally
scientifically reliable, but that certain modifications are
required in order to permit its results to be admissible or to
allow it to be utilized to prove a per se violation of the
statute." Id.
In the course of considering the scientific reliability of
the Alcotest, the Court explained the procedures employed in
administering the test to suspected drunk drivers. Id. at 77-
84. During that recitation, the Court gave the following
description of how the test is administered:
The actual administration of the test is
performed by one of the more than 5000
A-4906-08T4
8
certified Alcotest operators in New Jersey.
When a person has been arrested, based on
probable cause that the person has been
driving while intoxicated, he or she is
transported to the police station to provide
a sample for the Alcotest. The Alcotest,
consisting of a keyboard, an external
printer, and the testing device itself, is
positioned on a table near where the test
subject is seated.

Operators must wait twenty minutes before
collecting a sample to avoid overestimated
readings due to residual effects of mouth
alcohol. The software is programmed to
prohibit operation of the device before the
passage of twenty minutes from the time
entered as the time of the arrest.
Moreover, the operator must observe the test
subject for the required twenty-minute
period of time to ensure that no alcohol has
entered the person's mouth while he or she
is awaiting the start of the testing
sequence. In addition, if the arrestee
swallows anything or regurgitates, or if the
operator notices chewing gum or tobacco in
the person's mouth, the operator is required
to begin counting the twenty-minute period
anew.

[Id. at 79.]

This description of the test is the central basis for
defendant's claim, and the trial court's ruling, that the
Alcotest operator is the only person authorized to observe a
test subject during this twenty-minute period. The State, on
the other hand, argues that the Court's only concern was to
ensure that the test subject had not placed anything in his or
her mouth that may compromise the reliability of the test.
A-4906-08T4
9

According to the State, this can be established through
witnesses other than the operator of the Alcotest.
We acknowledge that defendant's position is, at first
blush, supported by what appears to be the plain language used
by the Court in Chun. However, a literal, unexamined
application of such language here would create an unduly and, in
our view, unintended restriction on the State's ability to
prosecute DWI cases based on the results of an Alcotest.
With respect to this critical twenty-minute period, the key
concern of the Court in Chun was to ensure that the test subject
did not ingest, regurgitate or place anything in his or her
mouth that could affect the reliability of the test. Id. at
140. In this context, the Court described the role of the
operator as follows:
[T]he operator will play a relatively lesser
role here than has been the case in the
past. His role now consists of observing
the subject to ensure that twenty minutes
has passed and to be certain that the
subject has neither swallowed nor
regurgitated any substances during that time
that would influence the test results;
inputting and verifying the accuracy of the
identifying information needed to start the
sequence; changing the control solution if
the machine alerts him to do so; attaching a
new mouthpiece; reading the instructions
about how to blow into the machine;
observing the LED screen and following its
A-4906-08T4
10
prompts; and observing the subject to ensure
that he or she actually provides a sample.

[Ibid.]

The Court even predicted that as the Alcotest "becomes more
routine, some, or even most, defendants will eventually forgo
cross-examination of the operator in light of the limited
information that can be achieved in that effort." Id. at 141
n.44.
Thus, there is a key difference between the
responsibilities of the operator in administering the Alcotest
and the State's burden of proof at trial. At trial, the State
must establish, by clear and convincing evidence,1 that, during
the twenty-minute period immediately preceding the
administration of the test, the test subject did not ingest,
regurgitate or place anything in his or her mouth that may
compromise the reliability of the test results. This can be

1
Although not directly addressed by the Court in Chun, we are
satisfied that the State's burden of proof as to the
admissibility of the Alcotest remains clear and convincing
evidence. See Romano v. Kimmelman, 96 N.J. 66, 90-91 (1984).
In Romano, the Court identified the following three conditions
of admissibility: (1) the proper operating condition of the
machine; (2) the requisite qualifications of the operator; and
(3) the proper administration of the test. Id. at 91. Here,
since our discussion is limited to the twenty-minute period of
observation of the test subject, the State must establish that
element of admissibility by clear and convincing evidence. We
discern no basis in law to deviate from this well-established
principle.
A-4906-08T4
11
accomplished through the testimony of any competent witness who
can so attest. By contrast, the operator's principal role is to
ensure that the procedures leading to the actual taking of the
test have been strictly followed.
As noted earlier, one of the benefits associated with the
Alcotest is its automation, which is intended to reduce the role
of the operator and thereby minimize the potential for human
error. To construe the twenty-minute observation requirement as
bestowing upon the operator the exclusive responsibility to
monitor the test subject elevates form over substance and places
an importance on the operator that is inconsistent with what the
Chun Court envisioned to be his or her diminished role.2 Id. at
141 n.44.
III
The order of the Law Division suppressing the BAC reading
obtained from defendant through the administration of an
Alcotest is reversed. Defendant's guilty plea, based on these
reading, is reinstated and the matter is remanded for such
further proceedings as may be warranted.
Reversed and remanded.

2
The Law Division reached a similar conclusion in State v.
Filson, 409 N.J. Super 245, 255 (Law Div. 2009).

STATE V. UGROVICS A-4906-08T4

STATE OF NEW JERSEY V. JOEL M. UGROVICS
A-4906-08T4 12-02-09

This appeal concerns the admissibility of the results of an
Alcotest. By leave granted, the State appeals from the order of
the Law Division suppressing the results of the Alcotest because
the arresting officer, rather than the Alcotest operator, was
the person who observed defendant during the twenty minutes
prior to him taking the test. In reaching this conclusion, the
trial court relied on what it characterized as the "procedures"
mandated by the Supreme Court in State v. Chun, 194 N.J. 54,
cert. denied, ____ U.S. ____, 129 S. Ct. 158, 172 L. Ed. 2d 41
(2008).

We reverse. We hold that the State is only required to
establish that the test subject did not ingest, regurgitate or
place anything in his or her mouth that may compromise the
reliability of the test results for a period of at least twenty
minutes prior to the administration of the Alcotest. The State
can meet this burden by calling any competent witness who can so
attest.

STATE V. WILLIAMS A-4530-07T4

STATE V. ROBERT WILLIAMS
A-4530-07T4 11-23-09

Flight from an unconstitutional investigatory stop that
could justify an arrest for obstruction does not automatically
justify admission of evidence revealed during that flight. For
such evidence to be admissible, there must be a "significant
attenuation" between the unconstitutional stop and seizure of
evidence.

state v Williams

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4530-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT E. WILLIAMS A/K/A
ROBERT LOVE,
Defendant-Appellant.
________________________________________________
Argued October 6, 2009 - Decided
Before Judges Skillman, Gilroy and
Simonelli.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment
No. 06-11-1044.
Alyssa Aiello, Assistant Deputy Public
Defender, argued the cause for appellant
(Yvonne Smith Segars, Public Defender,
attorney; Ms. Aiello, of counsel and on the
brief).
Steven A. Yomtov, Deputy Attorney General,
argued the cause for respondent (Anne
Milgram, Attorney General, attorney; Mr.
Yomtov, of counsel and on the brief).
APPROVED FOR PUBLICATION
November 23, 2009
APPELLATE DIVISION
November 23, 2009
2 A-4530-07T4
The opinion of the court was delivered by
SKILLMAN, P.J.A.D.
The primary issue presented by this appeal is whether
flight from an unconstitutional investigatory stop that could
justify an arrest for obstruction automatically justifies the
admission of any evidence revealed during the course of that
flight. We conclude that such evidence is admissible only if
there is a significant attenuation between the unconstitutional
stop and the seizure of evidence and that commission of the
offense of obstruction is insufficient by itself to establish
significant attenuation.
On August 25, 2006, Officer Delaprida of the Elizabeth
Police Department was dispatched together with thirteen to
fifteen other officers to the courtyard of a large housing
complex located in a high-crime area. Delaprida and the other
officers were sent to the housing complex to deter, through a
"police presence," a possible retaliatory shooting for a
homicide committed several days earlier.
Officer Delaprida had no information concerning the basis
for the report of a possible retaliatory shooting. Delaprida
also had no description or other information concerning the
person or persons who might be planning the shooting.
3 A-4530-07T4
When Officer Delaprida arrived at the housing complex with
his partner around 8:30 p.m., they observed a large number of
people in the courtyard, including children and older people,
"just hanging out." One of the persons the officers observed
was defendant, who was riding a bicycle diagonally in front of
them.
When defendant recognized the officers, who were dressed in
plain clothes, as police, he quickly started pedaling away and
also put his right hand in his pants pocket. The officers
ordered defendant to stop, but he kept pedaling "at a steady
pace," and the officers started to run after him. Defendant
then saw other officers entering the courtyard from the
direction he was headed and slowed down. At this point, Officer
Delaprida and his partner caught up with defendant, and grabbed
him while still on his bicycle. As the officers grabbed him,
defendant pulled his hand out of his pocket and threw a box to
the ground. The box was later determined to contain a
substantial amount of cocaine. Officer Delaprida estimated that
only four or five seconds elapsed between when he ordered
defendant to stop and when he grabbed him on his bicycle.
Defendant was indicted for possession of cocaine, in
violation of N.J.S.A. 2C:35-10(a)(1); possession of cocaine with
the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1)
4 A-4530-07T4
and N.J.S.A. 2C:35-5(b)(2); and possession of cocaine within 500
feet of a public housing facility with the intent to distribute,
in violation of N.J.S.A. 2C:35-7.1. Defendant subsequently
moved to suppress the evidence against him.
Based on the previously described testimony by Officer
Delaprida, the trial court concluded in a written opinion that
the report of a possible retaliatory shooting and the
observations by Officer Delaprida and his partner of defendant
pedaling his bicycle away from them and putting his hand in a
pocket did not provide the reasonable suspicion defendant was
engaged in criminal activity required for a Terry stop.1
Nevertheless, the court denied defendant's motion to suppress on
the ground that defendant's failure to immediately stop his
bicycle in response to Officer Delaprida's original command
established probable cause to arrest him for obstruction, in
violation of N.J.S.A. 2C:29-1(a), even though that command was
unconstitutional, and that defendant's apparent violation of the
obstruction statute provided sufficient grounds to justify the
stop that resulted in him discarding the cocaine hidden in his
pocket.
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
5 A-4530-07T4
Defendant subsequently entered into a plea bargain under
which he pled guilty to the charge of possession of cocaine, and
the State dismissed the possession with intent to distribute
charges. The trial court sentenced defendant to a four-year
term of imprisonment, with two years of parole ineligibility.
Defendant appeals from the denial of his motion to
suppress. See R. 3:5-7(d) (preserving right to appeal denial of
motion to suppress notwithstanding guilty plea).
I.
We first consider the validity under the Fourth Amendment
to the United States Constitution and Article I, paragraph 7 of
the New Jersey Constitution of the stop of defendant while he
was riding his bicycle in the housing complex courtyard.
A police encounter with a person constitutes an
investigatory stop subject to the protections of these
constitutional provisions if the facts objectively indicate that
"the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers'
requests or otherwise terminate the encounter." State v.
Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick,
501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402
(1991)). It is undisputed that defendant was subject to such a
6 A-4530-07T4
stop probably when Officer Delaprida ordered him to stop and
certainly when Officer Delaprida and his partner grabbed him on
his bicycle. See State v. Crawley, 187 N.J. 440, 450, cert.
denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006);
Tucker, supra, 136 N.J. at 165-66; State in Interest of C.B.,
315 N.J. Super. 567, 572-73 (App. Div. 1998).
"[A]n investigatory stop is valid 'if it is based on
specific and articulable facts which, taken together with
rational inferences from those facts, give rise to a reasonable
suspicion of criminal activity.'" State v. Williams, 192 N.J.
1, 9 (2007) (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)).
A suspicion of criminal activity will be found to be reasonable
only if it is based on "some objective manifestation that the
person [detained] is, or is about to be engaged in criminal
activity." Pineiro, supra, 181 N.J. at 22 (quoting United
States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66
L. Ed. 2d 621, 629 (1981)). In making this determination, a
court must consider "[t]he totality of the circumstances."
Ibid.
It is firmly established in this State that "flight alone
does not create reasonable suspicion for a stop[.]" State v.
Dangerfield, 171 N.J. 446, 457 (2002); see Pineiro, supra, 181
N.J. at 26; Tucker, supra, 136 N.J. at 168-70. However, flight
7 A-4530-07T4
"in combination with other circumstances . . . may support [the]
reasonable and articulable suspicion" required to justify a
stop. Pineiro, supra, 181 N.J. at 26; see State v. Citarella,
154 N.J. 272, 280-81 (1998); State v. Ruiz, 286 N.J. Super. 155,
163 (App. Div. 1995).
Applying these principles, the trial court correctly
concluded that Officer Delaprida and his partner did not have a
reasonable suspicion that defendant was engaged or about to
engage in criminal activity. These police officers had been
dispatched to the housing complex based on a report of a
possible retaliatory shooting in the area. The State did not
present any evidence regarding the source of the information
upon which the report was based. Consequently, the record does
not indicate whether the information came from a police officer,
a confidential informant, or merely a rumor in the neighborhood.
The report also did not include any specific information
regarding where in the housing complex or when the shooting
might occur, or who the possible perpetrator or perpetrators
might be. In addition, the officers admittedly did not have any
prior contact with defendant and thus had no reason to believe
he might be involved in the possible retaliatory shooting or
other criminal activity.
8 A-4530-07T4
In these circumstances, the police had no reason to focus
upon defendant as a possible perpetrator of the reported
possible retaliatory shooting. Defendant did not, for example,
match a description of a suspect, because the report did not
include such a description, and there is nothing intrinsically
suspicious about a person riding a bicycle in a housing complex
courtyard at 8:30 p.m. Thus, defendant's conduct when the
police first arrived at the scene was no more suspicious than
that of the numerous other persons congregated in the courtyard.
Moreover, defendant's conduct after he saw the officers
enter the courtyard did not provide an objectively reasonable
basis for suspecting that he had engaged in or was about to
engage in criminal activity. Defendant simply started quickly
pedaling away from the officers and put his hand in his pocket.
We question whether this conduct should even be considered
flight because the officers did not initially indicate to
defendant that he should stop. Defendant could have believed
that he should simply get out of the officers' way. In any
event, even if defendant's conduct in pedaling away from the
officers could be viewed as flight once they ordered him to
stop, as previously stated, "flight alone does not create [the]
reasonable suspicion [required] for a stop[.]" Dangerfield,
supra, 171 N.J. at 457.
9 A-4530-07T4
The fact that defendant also put his hand in his pocket did
not provide any additional foundation for an objectively
reasonable suspicion that defendant had engaged or was about to
engage in criminal activity. Putting a hand in a pocket is
fairly common human conduct that does not generally involve the
commission of a crime. Although Officer Delaprida testified
that he had a "concern maybe [defendant] was trying to hide a
weapon of some sort" in his pocket, he did not articulate any
basis for this alleged concern, and since defendant was pedaling
his bicycle in the opposite direction from the officers, the
officers could not have had any reasonable concern for their own
safety.
This case is similar to State v. L.F., 316 N.J. Super. 174
(App. Div. 1998), in which the State argued that defendant's act
of walking away when the police approached and also putting his
hand in his pocket created the reasonable suspicion of criminal
activity required for a Terry stop. In rejecting this argument,
we observed that "the mere act of putting something from one's
hand into one's own pocket while departing alone signifies
nothing additional by way of reasonable suspicion." Id. at 179.
This observation is equally applicable to the present case.
The State argues that the dispatch of police officers to
the housing complex to deter the commission of a retaliatory
10 A-4530-07T4
shooting constituted an exercise of the police department's
community caretaking responsibilities and that the prerequisites
for an investigatory stop should be applied less strictly in
that circumstance. "The 'community caretaker doctrine' . . .
applies when the 'police are engaged in functions, [which are]
totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a
[criminal] statute.'" State v. Diloreto, 180 N.J. 264, 275
(2004) (quoting State v. Cassidy, 179 N.J. 150, 161 n.4 (2004)).
Examples of police community caretaking activities include
"search[ing] for missing persons, . . . mediat[ing] disputes,
and . . . aid[ing] the ill or injured[.]" Id. at 281 (quoting
Debra Livingston, Police, Police Community Caretaking, and the
Fourth Amendment, 1998 U. Chi. Legal F. 261, 302 (1998)); see
also State v. Bogan, 200 N.J. 61, 73-81 (2009).
We do not believe that the dispatch of police officers to
an area to deter the commission of a crime constitutes an
exercise of the police's community caretaking responsibilities.
Indeed, the deterrence of criminal conduct is a significant
component of much police work, including routine foot and car
patrols. Thus, such police activity is not "totally divorced"
from the detection, investigation and acquisition of evidence
relating to criminal conduct. Diloreto, supra, 180 N.J. at 275.
11 A-4530-07T4
Therefore, the expansion of the community caretaking doctrine to
apply in circumstances where the police are undertaking to deter
crime would significantly dilute the protections against
unreasonable searches and seizures provided by the United States
and New Jersey Constitutions.
For all these reasons, the trial court correctly concluded
that Officer Delaprida and his partner did not have the
reasonable suspicion of criminal activity required to stop
defendant.
II.
We now consider the trial court's ruling that even though
the initial stop of defendant was unconstitutional, defendant's
failure to comply with Officer Delaprida's command to stop
constituted obstruction, which provided the probable cause
required to justify defendant's arrest and justified admission
of the evidence of the cocaine defendant discarded when the
police apprehended him. This requires a review of the Supreme
Court's recent decisions in Crawley, supra, 187 N.J. 440, and
Williams, supra, 192 N.J. 1. In Crawley, the Court held that a
person who flees from an investigatory stop may be convicted of
obstruction under N.J.S.A. 2C:29-1 even though the stop is later
found to have been unconstitutional if the police officer making
12 A-4530-07T4
the stop was "acting in objective good faith, under color of law
in the execution of his duties." 187 N.J. at 460-61. In
Williams, the Court held that evidence the police obtained in
apprehending a person who has obstructed an unconstitutional
investigatory stop may be admissible if the evidence is
"sufficiently attenuated from the taint" of the unconstitutional
stop. 192 N.J. at 15.
Defendant argues that his failure to immediately stop his
bicycle in response to Officer Delaprida's command could not be
found to constitute obstruction within the intent of N.J.S.A.
2C:29-1(a) as interpreted in Crawley. We have no need to
address this argument because we conclude that even if
defendant's failure to obey Officer Delaprida's command to stop
would have provided an adequate basis to arrest him for
obstruction, the evidence obtained when Officer Delaprida and
his partner grabbed defendant was not "sufficiently attenuated"
from the taint of the unconstitutional stop to justify its
admission into evidence.
The Court in Williams held that the determination of
whether the police "have obtained the evidence by means that are
sufficiently independent to dissipate the taint of their illegal
conduct" requires consideration of three factors: "(1) the
temporal proximity between the illegal conduct and the
13 A-4530-07T4
challenged evidence; (2) the presence of intervening
circumstances; and (3) the flagrancy and purpose of the police
misconduct." 192 N.J. at 15 (quoting State v. Johnson, 118 N.J.
639, 653 (1990)).
In Williams, the defendant responded to a police command
that he place his hands on his head to enable the officers to
pat him down by pushing one of the officers and fleeing from the
scene. Id. at 5. When the police caught the defendant, he was
found with a handgun in his possession. Ibid. The Court
concluded that the most significant factor in determining the
admissibility of the handgun was "the presence of intervening
circumstances," id. at 16, specifically defendant's pushing of
one of the officers involved in the stop and fleeing from the
scene, thus requiring the officers to engage in a police
pursuit. Id. at 18. Based primarily on this factor, the Court
concluded that the seizure of a handgun from the defendant
following his obstruction of an unconstitutional investigatory
stop was sufficiently attenuated from the stop to support
admission of the evidence. Id. at 15-18.
The State argues that any flight or other conduct by a
person subject to an unconstitutional stop that would provide a
basis to arrest for obstruction also automatically requires
denial of a motion to suppress any evidence obtained as a result
14 A-4530-07T4
of that person's apprehension, unless there is a showing of bad
faith on the part of the police. However, as pointed out in the
leading treatise in the field of search and seizure law, the
question whether a person may be prosecuted for a new crime
committed in response to an unconstitutional stop or other
police misconduct is a different question than "whether an
arrest for the new crime should be deemed so substantially
'purified' by that new crime as to provide a lawful basis for
admitting evidence of some other offense . . . found in a search
incident to that arrest." 6 Wayne R. LaFave, Search & Seizure:
A Treatise on the Fourth Amendment § 11.4(j), at 66 (4th ed.
Supp. 2009).
Consistent with this view, our Supreme Court in Williams
did not say that any conduct that could be found to constitute
obstruction automatically constitutes "an intervening act . . .
that completely purge[s] the taint from the unconstitutional
investigatory stop." 192 N.J. at 18. Instead, the Court
indicated that the determination "whether evidence is
sufficiently attenuated from the taint of a constitutional
violation" must be made on a case-by-case basis in light of the
three-factor test set forth in Johnson, supra, 118 N.J. 639, and
reaffirmed in Williams, 192 N.J. at 15.
15 A-4530-07T4
In concluding that the recovery of the handgun at the end
of the police pursuit in Williams was sufficiently attenuated
from the taint of the unconstitutional stop to justify the
admission of that evidence, the Court pointed to State v.
Seymour, 289 N.J. Super. 80 (App. Div. 1996) and State v.
Casimono, 250 N.J. Super. 173 (App. Div. 1991), certif. denied,
127 N.J. 558, cert. denied, 504 U.S. 924, 112 S. Ct. 1978, 118
L. Ed. 2d 577 (1992), as other examples of cases in which the
taint of unlawful police conduct had sufficiently dissipated as
a result of intervening criminal acts to justify admission of
evidence recovered after the defendant's apprehension. Id. at
16. Therefore, it is illuminating to consider the factual
circumstances that this court found to establish a sufficient
attenuation between an unconstitutional stop and subsequent
seizure of evidence to justify admission of that evidence in
those cases.
In Seymour, the defendant disobeyed a police signal to stop
his car, which resulted in a mile and a quarter police pursuit
during which defendant increased his speed from forty to fifty
miles per hour and swerved onto the shoulder of the road several
times. 289 N.J. Super. at 83-85. In the course of this police
pursuit, the defendant discarded cocaine out the window of his
car. Id. at 83. Although the court assumed that the initial
16 A-4530-07T4
police signal to defendant to stop his car was unlawful, id. at
84, it nevertheless concluded that defendant's failure to comply
with that command constituted eluding, in violation of N.J.S.A.
2C:29-2(b), id. at 85, and affirmed the denial of the
defendant's motion to suppress evidence of the cocaine discarded
during the course of the police pursuit. Id. at 86-89. In
reaching this conclusion, the court observed: "Fleeing from the
police in a motor vehicle with the police in vehicular pursuit
could endanger defendant, the officer, other motorist, or
pedestrians." Id. at 87.
In Casimono, the police directed a car to pull over to the
shoulder of the road because the driver had made several lane
changes without signaling. 250 N.J. Super. at 177. As the car
pulled over, the police observed the defendant, who was a
passenger, make a "furtive" movement. Ibid. Based on this
observation, the police subjected both the driver and the
defendant to pat down searches. Id. at 178. The driver
resisted the search, first refusing to take his hand out of his
pocket and then throwing something over the guardrail located
along the shoulder of the roadway, which was subsequently
determined to be a dollar bill containing cocaine residue.
Ibid. At this point, defendant returned to the car where he
retrieved a paper bag, which was subsequently determined to
17 A-4530-07T4
contain a substantial amount of cocaine, and also threw it over
the guardrail. Ibid. The defendant and the driver then had to
be physically subdued. Ibid.
We concluded that even though the stop of the car in which
defendant had been riding was lawful, the pat down searches of
the driver and the defendant had been unlawful. Id. at 178-82.
Applying the three-factor test adopted in Johnson and later
reaffirmed in Williams, we held that evidence of the cocaine in
the dollar bill should have been suppressed because the driver
"threw [the] dollar bill containing cocaine residue over the
guardrail during and in direct response to the illegal pat down
search[.]" Id. at 186. On the other hand, we held that the
trial court had properly denied the motion to suppress the
cocaine contained in the paper bag because the unlawful pat down
search of defendant had been completed before he voluntarily
returned to the car, in violation of the police officer's
directions, and retrieved the paper bag that he threw over the
guardrail. Ibid. We noted that the only unlawful police
conduct was the pat down searches of the defendant and the
driver, that the bag of cocaine was not located on their persons
but rather in the car, and that defendant had gained access to
the bag only by disobeying a lawful police order to remain
outside the car. Id. at 186-87. Under these circumstances, we
18 A-4530-07T4
concluded that "there was a significant break in the chain of
causation between the illegal searches and the discovery of the
cocaine." Id. at 187.
Under the three-factor test for determining significant
attenuation between unlawful police conduct and seizure of
evidence reaffirmed in Williams, we perceive no basis for
concluding that the unconstitutional stop of defendant
constituted "flagran[t] . . . police misconduct." Williams,
supra, 192 N.J. at 15 (quoting Johnson, supra, 118 N.J. at 653).
However, the other Williams factors militate against the
conclusion that there was a significant attenuation between the
stop and the seizure of the cocaine discarded by defendant.
Only four or five seconds elapsed between when Officer Delaprida
directed defendant to stop his bicycle and defendant discarded
the cocaine. Consequently, there was a very close "temporal
proximity between the illegal conduct and the [recovery of] the
challenged evidence[.]" Ibid. (quoting Johnson, supra, 118 N.J.
at 653).
Most importantly, there were no significant "intervening
circumstances" between the unlawful police command to defendant
to stop his bicycle and defendant's discard of the box that
resulted in the seizure of cocaine. Ibid. Defendant did not
push a police officer, as in Williams, flee in a car resulting
19 A-4530-07T4
in a mile and a quarter police pursuit, as in Seymour, or seek
to avoid apprehension by returning to a lawfully stopped car
after the police had removed him from the car, as in Casimono.
In those cases the defendant's intervening criminal acts not
only constituted a break in the chain of causation between the
unlawful police conduct and seizure of evidence but also posed a
risk of physical injury to police officers and, at least in
Seymour, members of the public. In contrast, defendant did not
force the officers to engage in a lengthy and dangerous pursuit
to apprehend him or engage in any act of physical aggression
against Officer Delaprida and his partner. In fact, the
officers physically accosted defendant by grabbing him on his
bicycle. Therefore, there is no basis for concluding that the
police seized the cocaine discarded by defendant "by means that
[were] sufficiently independent to dissipate the taint of their
[prior] illegal conduct." Williams, supra, 192 N.J. at 15
(quoting Johnson, supra, 118 N.J. at 653).
"The purpose of the exclusionary rule is to deter police
misconduct and to preserve the integrity of the courts."
Johnson, supra, 118 N.J. at 651. The attenuation exception
applied in Williams, Seymour and Casimono was established in
recognition of the fact that the seizure of evidence following
police misconduct is in some circumstances so "far removed from
20 A-4530-07T4
the constitutional breach" that suppression "is a cost [that is]
not justified" by the purposes of the exclusionary rule. State
v. Badessa, 185 N.J. 303, 311 (2005). However, it is equally
true that an overly expansive application of the attenuation
exception can undermine the salutary objectives of the
exclusionary rule. In New Jersey, the three-factor test
reaffirmed in Williams delineates the circumstances in which the
attenuation exception may be properly applied. Under those
factors, the State failed to establish a "significant
attenuation" between the unconstitutional stop of defendant and
the seizure of the drugs he discarded following that stop.
Accordingly, the order denying defendant's motion to
suppress is reversed and the judgment of conviction is vacated.

11-16-09 STATE OF NEW JERSEY v ECKERT

11-16-09 STATE OF NEW JERSEY v. ECKERT
A-0216-08T4

A conviction for refusal to submit to a breath examination cannot be merged with a DWI conviction. Such a plea agreement
violated applicable merger principles as well as the Court's Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey.



Assistant Editor: Umair Hussain

11-12-09 STATE OF NEW JERSEY v. UCHE ADIM

11-12-09 STATE OF NEW JERSEY v. UCHE ADIM
A-4962-05T4

We consider deviations from the model jury instructions on further deliberations approved in State v. Czachor, 82 N.J. 392, 400 (1980) and adopted in Model Jury Charge (Criminal), Final Charge: Further Jury Deliberations at 24 (2004) and conclude that a judge may not outline the evidence in delivering that supplemental charge. We also address the State's privilege to withhold the identity of a citizen who provides information about the concealment of evidence of a crime and conclude that the State is not required to establish an ongoing arrangement with the informer in order to invoke the privilege provided in N.J.R.E. 516.


Assistant Editor: Umair Hussain

KENNETH VERCAMMEN – resume and community involvement

KENNETH VERCAMMEN – resume and community involvement
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
www.njlaws.com
Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on probate, estate planning, criminal and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.

 He is the past chair of the NJ State Bar Association Municipal Court Section. He is the Deputy chair of the ABA Criminal Law committee, GP Division. Kenneth Vercammen was selected one of only three attorneys as a Super Lawyer 2009 in NJ Monthly in the Criminal - DWI.
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. He has successfully handled over One thousand Municipal Court and Superior Court matters in the past 18 years.


Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA. He started his career as a trial attorney for Drazin & Warshaw in Hazlet and Red Bank, NJ, and Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl in North Brunswick.


ADMISSIONS: Admitted In NJ, NY, PA, US Supreme Court and Federal District Court

MANAGING ATTORNEY Kenneth Vercammen & Associates, PC March 1990-Present
Full service Law practice with offices in Edison and Cranbury.

PROSECUTOR Township of Cranbury, Middlesex County, NJ 1991-1999
Municipal Prosecutor for criminal and traffic cases involving Township and State Police
-Acting Assoc. Prosecutor: Carteret Municipal Court, Middlesex County, NJ 2000

EDITOR- NJ MUNICIPAL COURT LAW REVIEW 1993- present

Middlesex County Bar Association 2008 Municipal Court Attorney of the Year

NJ State Bar Association- 2005-2006 Municipal Court Attorney of the Year Award

New Jersey Super Lawyers selection 2009, 2008, 2007, 2006

Who's Who in America 2004

NJ State Bar Association- 2002 General Practitioner of the Year Award

1993 AWARD WINNER "Service to the Bar Award"- New Jersey State Bar Association YLD

RELEVANT LITIGATION SPEAKING ENGAGEMENTS:
-Criminal, DWI and Drug Cases- NJ State Bar Annual Meeting 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002, 01, 00, 99
-Civil Trial Practice- Middlesex Bar 2004
-Personal Injury Litigation- NJ Institute for Continuing Legal Education/ NJ State Bar
2001, 2000,1999,1998,1997,1996,1995,1994,1993,1991
-Municipal Court Handling Serious Cases ICLE/NJSBA-2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002,2001,2000,1998,1997,1995,1994
-NJ Association of Municipal Court Administrators 2002
-Edison Police Auxiliary- Search and Seizure 2002
-New Jersey Network TV- Due Process TV show 2000
-Cablevision TV- Law on the Line 2003, 2001
-Elder Law and Probate NJSBA/ ICLE 2009, 2008, 2007, 2006, 2005, 2004, 03,02,01,99,98,97,96

PUBLICATIONS:
Published 150 separate Law Review and Legal Periodical articles in legal journals such as New Jersey Law Journal, American Bar Association Barrister, New Jersey Lawyer, ABA Law Practice Management, and New Jersey State Bar Association's Dictum. Listed on www.njlaws.com.

KENNETH VERCAMMEN, ESQ.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE
East Brunswick Adult School 2009, 2008
Middlesex County Police Chiefs 2009- Living Wills
Middlesex County College- Wills & Probate 2007
Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
- Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
-Elder Law and Estate Planning- American Bar Association New York City 2008, Miami 2007
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Hall's Corner 2002;
-Linden AARP 2002
-Woodbridge Adult School -Wills and Estate Administration -2001, 2000,1999,1998,1997,1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
-Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
-Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
-AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005
-Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peter's-2000, 1999,1998
-East Brunswick AARP Wills 2001; -Iselin/ Woodbridge AARP Wills 2000
-Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001
-North Brunswick Senior Day 2001
-Wills, Elder Law and Probate-South Brunswick Adult School & Channel 28 TV 1999, 1997,1993
-Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995
-Senior Citizen Law-Perth Amboy YMHA 1995; Temple Beth Or 2002;
-Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993
-Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994
-Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994
-Wills and Estate Planning-Edison Elks and Senior Citizens January 1994
-"Legal Questions Clinic" Metuchen Adult School March 1995,1994,1993
-Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993

SPECIAL ACTING PROSECUTOR: Woodbridge, East Brunswick, Metuchen, South Brunswick, Perth Amboy, Cranbury, South Plainfield, Clark, South River, Hightstown, Carteret, Jamesburg, Berkeley Heights on conflict matters. Past President- Middlesex Municipal Prosecutor's Association. Previous experience with the Delaware County, Pennsylvania District Attorney Office, Middlesex County Probation Department and Scranton District Magistrate Office.

Metuchen Public Defender 2001- present Edison Public Defender 1990-1991

KENNETH VERCAMMEN- Community Service

NON- PROFIT: -Edison Elks-Presiding Justice 1993- Present
-Y.B. CHOI TAE KWON DO (Korean Karate)- 4th degree Black Belt awarded 2008 3rd degree 2004 ; 2nd degree December 1993, 1st degree Black Belt December 2001
-Raritan Valley Road Runners- Comeback of the Year Award 2002 and ranked Master Distance Runner; state champion 20,000 meter team 2005

New Jersey State Age Group Champion Garden State Games 5,000 meter run 1993
-Bishop Ahr/St. Thomas Aquinas H.S. Alumni Society
Elected Vice-President 1989-1990; Class of 1977- 25 year Reunion Chair
-Edison 14th District Committeeman Elected 1988-1994
-St. Francis Cathedral- Church Lector 1990-1994
-University of Scranton, North Jersey Alumni Chapter Co-Chair, Fall Social 1988
-Knights of Columbus-Fourth Degree Knight, Edison Council
Edison NJ Essay Contest Chair 1992,1993
Metuchen Chamber of Commerce, Past member Edison Chamber of Commerce;
RUNNING:
Raritan Valley Road Runners RVRR Rumson HashHouse Harriers
Central Jersey Road Runners CJRR Jersey Shore Triathlon Club JSTC
Freehold Area Running Club FARC Scranton Area Organization Runners SOAR
Jersey Shore Running Club JSRC USATF- US Athletic Track & Field
Sandy Hook Triathlon Club First Place- Bergen Bar 5k Law Day Run May 2001 South Brunswick Running Group- President First Place- CJRR Summer 5K 2002
First Place: Cocoa Beach 2 mile 2008, 2007; Cranford Run for Lupus 4 mile 2006, JSRC Twilight run 2006. Indian Trials Middletown 3m 2005,2004; Stroudsburg 5k 2005, 2004; Wildwood 5k, Ocean Winter 4 mile, Edison Lannie 5k, 2004; Washington DC Run for Justice 5K 2002
CJRR Age group champ 2005,2004, 2002, 1996, 1995
New York Marathon top 100 NJ Finisher

ACTIVITIES: Married 1989, one son born 1991, daughter born 1994
Weekend Road Running Races, Triathlons, Soccer
Tae Kwon Do Karate

SOUTH BRUNSWICK AREA
Summer Blast/Ireland Brook Neighborhood Sponsor
So. Brunswick Soccer Asst. Coach Travel 2007, 2006, 2005, 2004, 2003, 2002, 2001, 2000, 1999, 98
So. Brunswick Athletic Assoc.-Team Sponsor and helper with son's team
So. Brunswick Viking 5k- volunteer
South Brunswick 5K running Race volunteer
So. Brunswick Bicentennial Volunteer
Neighborhood Picnic Sponsor 1998-2009
So. Brunswick 50 Mile Bike Volunteer and 50 mile Finisher
Holt for Congress Volunteer

CHARITABLE: American Cancer Society-Chairman
Annual Summer Fundraiser Picnic- 1987,88,89,90,91,92
Chairman, Annual Christmas Fundraiser- 1987,88,89,90,911,92
Recipient-Young Professionals Award-Sept. 1988, Sept. 1989
Board of Manager's - 1989-1994 Founder and Chair-Young Professionals Group

KENNETH VERCAMMEN, ESQ. Education & Awards

LEGAL EDUCATION: The Widener/ Delaware Law School, J.D., May 1985
Class Rank: Top Ten Percent
Awards: Honor Grades: Federal Income Tax, Business Organization, Criminal Law, Advanced Advocacy, Family Law, New Jersey Practice, Unfair Trade Practices, Professional Liability.
Outstanding Service Award Recipient in Graduation Ceremony
Delaware Merit Scholarship - 1983, 1984
Provincial Winner - Phi Delta Phi Legal Honor Fraternity Graduate of the Year Award
Who's Who in American Law Schools

ACTIVITIES:
Law Review- Senior Staff-Member
Harvard Journal of Law and Public Policy, Senior Editor 1984-1985
Winner - Sixth Annual Trial Advocacy Competition
First Prize - Delaware Law School/ATLA Environmental Law Essay Contest
Delaware Law Forum, Casenote Editor

Working Scholar- Hon. Philip Gruccio, Assignment Judge of Atlantic, Cumberland, Cape May, Salem Counties
Association of Trial Lawyers of America, Delaware Chapter Treasurer
Law School Running Club - President
Research Assistant - Dean Arthur Weeks
Publications- Published in Law Review and wrote more articles than 75% of law faculty members

PRELEGAL EDUCATION: University of Scranton B.S., January 1981
Major: Political Science: Graduated Cum Laude in 3-1/2 years
Honors:
- Cited in Who's Who in American Colleges and Universities;
- Dean's List; Pi Gamma Mu Honor Society; Pi Sigma Alpha Honor Society.
- Varsity Cross- Country - Team Captain and Record Holder of Indoor Half-Mile
- District Magistrate Thomas Hart- Paid Law Clerk/ Executive Assistant
- Pre-Law Society Public Relations Director
- Voter Registration Drive Coordinator
- Internship with Pa. Representative Hon. Fred Belardi
- School Newspaper Staff and Sportswriter
- WYRE radio station sports caster
- 3rd Place Wrestling Tournament
- Campus Bowl Intellectual Competition (Team Captain)
- Trustee Day Volunteer, Red Cross Blood Drive Volunteer
- Senior Class - Hard Rockers Social Committee Chair
-Alumni Society-Estate Planning Council 1997-Present
- Class of 1981 20 year Reunion Executive Committee member 2001 -25 Year Reunion Co-chair


KENNETH VERCAMMEN
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
The American Bar Association is the largest voluntary professional organization in the world with more than 400,000 members

AMERICAN BAR ASSOCIATION - National Appointments:

General Practice Solo & Small Firm Division
-Estate Planning, Probate & Trust Committee- Chair 2008-2009, 2006-2007
-Elder Law Committee Chair 2005- present, Vice Chair 1996-1999
- Criminal Law Committee Deputy Chair 2006-present
- Tort, Personal Injury and Insurance Committee Chair 2005- 2006
-Deputy Chair and Newsletter Editor-GP Marketing Legal Services Committee 1993 -1996
- Probate & Estate Planning Committee- Newsletter Editor & Vice Chair 1997-1999, Vice Chair 2005
-Litigation Committee Member 1993 - present

BUSINESS AND AMERICAN BAR ASSOCIATION SPEAKING ENGAGEMENTS:
-Elder Law, Estate and Probate ABA Chicago Annual Meeting
-Elder Law and Probate New York City 2008 Annual Meeting
- Improving Your Elder Law & Estate Practice San Francisco, CA 2007
-Elder Law and Estate Planning- ABA Miami 2007
-Elder Law Practice, New Ethical Ideas to Improve Your Practice for Clients ABA Hawaii 2006
-Marketing Success Stories ABA Toronto 1998
-Opening a Business-Sayreville Adult School 1997,1996,1995
-Olympians of Marketing- ABA Annual Meeting-Orlando, Florida 1996
-Unique Marketing Techniques & Client Relations III ABA Annual Meeting-Chicago 1995
-Starting a Business-Brooklyn Bar Association 1995,1994
-Personal Marketing & Relations - 1995 Miami ABA meeting LPM Personal Marketing Skills IG
co-sponsored by four Major National Bar Sections and committees
-How to Start a Practice-1994 New Orleans ABA Annual Meeting LPM primary sponsor
-1993 New York Annual Meeting "Marketing for Small Firms"

LAW PRACTICE MANAGEMENT SECTION ABA- LPM
-Co-Chair with Jay Foonberg-ABA LPM Personal Marketing Skills Group 1998,1997,1996,1995,1994
-Speaker at many ABA Annual Meetings
-National Liaison and ex-officio member of Law Practice Management Section Council 1993 - 1995
-National Chair - Law Practice Management Committee YLD 1992-1993
-Chair and Newsletter Editor-Marketing Legal Services Committee 1996-1997,1999-2000
ABA Attendance at Leadership Conferences and participation at following Annual and Sectional meetings: Chicago 2009, New York 2008, Philadelphia GP 2007, San Francisco 2007, Washington GP 2007, Miami 2007, Hawaii 2006, Philadelphia LPM 2005; Washington DC 2002; Philadelphia 2002; London 2000, New York 2000, Atlanta 1999, Beverly Hills 1999, Cancun LPM 1998, Naples-LPM 1997; Captiva 1996, Orlando 1996, Coronado LPM 1995, Chicago 1995, Miami 1995, Washington D.C. GP 1995, Vancouver LPM 1995, New Orleans 1995, Napa, CA LPM 1994, Colorado LPM 1993, New York 1993, Boston 1993, San Francisco 1992, Cleveland GP 1992, Scottsdale AZ 1991, Los Angeles 1990, Hawaii 1989, Philadelphia 1988, Toronto 1988, New York City 1986, Washington DC 1985


KENNETH VERCAMMEN
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
New Jersey State Bar Association- Municipal Court Section Chair 2003-2004, Vice Chair 1999-2002; Chair of Municipal Court Education Committee 1996-Present
Middlesex County Bar Association Chair Municipal Court Practice Committee 1997-2008
County Bar Board of Trustees 2000- 2006

New Jersey State Bar Association -General Practice Section-Board of Directors 1995- Present

ADJUNCT PROFESSOR Middlesex County College
Edison, NJ February, 2001-April, 2001; Jan. 1990-May, 1991
Instructor of "Criminal Law and Procedure" and Business Law. Taught college students the elements of crime and the criminal procedure system. Explained the incidents before and after trial and analyzed the impact of the Constitution on crimes and criminal procedures.

New Jersey Superior Court - Certified Mediator 1997-

New Jersey Supreme Court Committee on Municipal Courts 2000-2005

Other Speaking
-Update of Municipal Court-NJSBA Annual Meeting Atlantic City 1999,1997, 95, 94
- Cranbury Twp Municipal Alliance Against Substance Abuse 2004, 2002
-ATLA-NJ - New Jersey Courts 1991
-Intoxicated Driver Resource Center/IDRC - DUI Law 1999, 1991
-Preventing the Impaired Driver-Coalition Against Impaired Drivers 1992
-Winning Lawsuit Threshold Cases NJSBA 1992
-WCTC Radio Mid-Day Legal Advisor - Criminal and Traffic Laws 1991 and 1990
-Computers in Litigation-NJSBA Law Office Management 1994
-Self Defense Law in New Jersey - Cranbury Police Dept. 1997,1993,1992

Self Defense and Home Protection - Speaker - New Brunswick Crime Watch - 1989
-Wills and Power of Attorney 1991 Edison Democratic Association
Defending Speeding Cases - New Jersey State Bar Association/NJSBA - 1989
-Family Law & Domestic Violence Trial Practice NJ State Bar Association 1995,1994,1993
-Automobile Insurance - Middlesex County College - 1990
-Criminal & Juvenile Courts Piscataway Vo Tech – 1990
-Living Wills-Dean Witter and Nordstroms, Menlo Park Mall October 1992; Trusts and Living Wills-Dean Witter, Metro Park, June 1992; Estate Planning-North Brunswick Republican Club May 1992;

Make a Wish Foundation- Co Chair 19th Annual Summer Blast 1994 in Belmar, NJ
Co Chair Christmas Fundraiser 1993
Jersey Shore Medical Center Chair-18th Annual Summer Blast to Benefit the Jersey Shore Regional
Trauma Center at Bar Anticipation, Belmar 1993
American Red Cross Elected to Board of Directors 1988-1991

11-10-09 Patel v. New Jersey Motor Vehicle Commission

11-10-09 Hina K. Patel v. New Jersey Motor Vehicle Commission
(A-86-08)

Under N.J.S.A. 39:4-97.2(e), the exemption provision for assessing motor vehicle penalty points for an unsafe driving offense that occurs more than five years after “the prior offense,” “the prior offense” refers only to the most recent preceding offense based on both a plain reading of the statute and a review of the legislative history. Thus, the Motor Vehicle Commission correctly imposed motor vehicle points on Patel for having a fourth unsafe driving conviction in 2007, only one year after thher prior, third, unsafe driving offense.

Assistant Editor: Umair Hussain

10-15-09 STATE V. LEONARD

10-15-09 STATE V. RAAFIQ LEONARD
A-4330-07T4
The trial court properly precluded defense counsel from
confronting the victim with a fifteen-year-old conviction for
third-degree aggravated assault. Vasquez v. Jones, 496 F.3d 564
(6th Cir. 2007) is distinguishable.

Assistant Editor: Umair Hussain

STATE OF NEW JERSEY V. L.V.

DATE NAME OF CASE (DOCKET NUMBER)
10-08-09 STATE OF NEW JERSEY V. L.V.
A-3149-07T4
Defendant pled guilty to second-degree manslaughter and
second-degree aggravated assault on her two newborn infants and
was sentenced to two concurrent five-year terms of imprisonment,
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The
matter came before the panel on the Sentence Oral Argument
calendar with defendant arguing the judge erred in sentencing
her as a second-degree offender. Because the judge erred in not
finding all the mitigating factors supported by the record, we
reversed. We considered defendant's long history of horrific
sexual and psychological abuse by her father, who twice
impregnated her; her significant mental retardation; the
significant role her father played in the death of her first
child and the assault of the second; the presence of a duress
defense; the absence of any prior history of delinquency or
criminal activity; the likelihood her conduct would not recur
because her father had been sentenced to an aggregate thirtyfive
year term; her character and attitude making it unlikely
she would commit another offense; and her cooperation with the
prosecution of her father. Thus, we concluded that the
mitigating factors substantially outweighed aggravating factors
(1), (2), and (9) and resentenced defendant as a third-degree
offender to two concurrent terms of four years, subject to NERA,
with three years of parole supervision.

Edited by Umair Hussain

STATE v. CAGNO

DATE NAME OF CASE (DOCKET NUMBER)
09-10-09 STATE v. AURELIO RAY CAGNO A-7021-03T4
A RICO conspiracy must continue to within five years of the indictment, but there is a presumption that
the conspiracy continues when a member of an organized crime family is involved, and the State does
not have to prove that an overt act occurred within the five year period. In any event, in this case a
Family member's refusal to testify over a grant of immunity and signal of "thumbs up" to defendant as
he left the courtroom at defendant's first trial can be considered overt acts in a superseding indictment.


Edited by Umair Hussain

State vs. Cooper

DATE NAME OF CASE (DOCKET NUMBER)
09-25-09* State vs. David Cooper A-2810-07T4
In a case in which defendant was sentenced to death and his sentence was upheld by the Supreme
Court and thereafter converted to life without parole upon abolition of the death penalty, a post
conviction relief petition addressed to the penalty phase, including claims of ineffective assistance of
counsel, was not moot because, if defendant is entitled to a new penalty proceeding, he could be
sentenced to a term less than life without parole. The scope of review embodying a claim of ineffective
assistance of counsel in a PCR involving a case in which the death penalty was imposed will remain the
same as it was at the time of trial. In the absence of prejudice, the Public Defender could substitute one
of defendant's trial counsel before the jury was empanelled and sworn, and the decision was for the
Public Defender, not the originally designated attorney, to decide. Given the mitigating factors
presented to the jury, including his mother's addiction to alcohol during pregnancy and while defendant
was a child, defendant did not demonstrate there was a reasonable probability that the penalty phase
deliberations would have been affected by proofs that defendant could be diagnosed as the victim of
fetal alcohol syndrome. [*Approved for Publication date]


Edited by Umair Hussain

I/M/O OF J.W. A-5458-08T1

DATE NAME OF CASE (DOCKET NUMBER)
09-28-09 I/M/O OF J.W. A-5458-08T1
Internet and area notification consistent with moderate risk of recidivism is warranted under Megan's
Law for this registrant both by reason of his RRAS tiering score and because of uniquely serious factors
which bring the matter further out of "heartland" contemplated by the RRAS.

Edited by Umair Hussain

Court Rule 1:8-10. Polling of Jury

1:8-10. Polling of Jury

Before the verdict is recorded, the jury shall be polled at the request of any party or upon the court's motion, and it shall be polled in every civil action if the verdict is not unanimous. If the poll discloses that there is not unanimous concurrence in a criminal action or concurrence by the number required by R. 1:8-2(c) in a civil action, the jury may be directed to retire for further deliberations or discharged

Court Rule 1:8-9. Return of Verdict

1:8-9. Return of Verdict

In every trial by jury the verdict shall be returned by the jury to the judge in open court. The verdict shall be unanimous in all criminal actions and shall be rendered in civil actions by the number required by R. 1:8-2(c).

Court Rule 1:8-8. Materials to be Submitted to the Jury; Note-taking; Juror Questions

1:8-8. Materials to be Submitted to the Jury; Note-taking; Juror Questions

(a) Materials. The jury may take into the jury room the exhibits received in evidence, and if the court so directs in a civil action, a list of the claims made by the parties and of the defenses to such claims, a list of the various items of damage upon which proof was submitted at the trial and a list of the verdicts that may be properly found by the jury. Any such list may be prepared by an attorney or the court, but before delivery to the jury, it shall be submitted to all parties. The court, in its discretion, may submit a copy of all or part of its instructions to the jury for its consideration in the jury room. The court may also, in its discretion and at such time and in such format as it shall determine, permit the submission to the jury of individual copies of any exhibit provided an appropriate request to employ that technique was made prior to trial on notice to all parties and provided further that the court finds that no party will be unduly prejudiced by the procedure.

(b) Juror Note-taking. Prior to opening statements, the attorneys or any party may request that the jury be permitted to take notes during the trial or portion thereof, including opening and closing statements. If the court determines to permit note-taking after all parties have had an opportunity to be heard, it shall provide the jurors with note-taking materials and shall take such steps as will ensure the security and confidentiality of each juror's notes.

(c) Juror Questions. Prior to the commencement of the voir dire of prospective jurors in a civil action, the court shall determine whether to allow jurors to propose questions to be asked of the witnesses. The court shall make its determination after the parties have been given an opportunity to address the issue, but they need not consent. If the court determines to permit jurors to submit proposed questions, it shall explain to the jury in its opening remarks that subject to the rules of evidence and the court's discretion, questions by the jurors will be allowed for the purpose of clarifying the testimony of a witness. The jurors' questions shall be submitted to the court in writing at the conclusion of the testimony of each witness and before the witness is excused. The court, with counsel, shall review the questions out of the presence of the jury. Counsel shall state on the record any objections they may have, and the court shall rule on the permissibility of each question. The witness shall then be recalled, and the court shall ask the witness those questions ruled permissible. Counsel shall, on request, be permitted to reopen direct and cross-examination to respond to the jurors' questions and the witness's answers. A witness who has been excused shall not be recalled to respond to juror questions unless all counsel and the court agree or unless the court otherwise orders for good cause shown.

Court Rule 1:8-7. Requests to Charge the Jury

1:8-7. Requests to Charge the Jury

(a) Generally. Either within the time provided by R. 4:25-7 or thereafter but before the close of the evidence, as to issues not anticipated prior to trial, any party may submit written requests that the court instruct the jury on the law as set forth in the requests. The requests shall make specific reference to the Model Civil Jury Charges, if applicable, or to applicable law. Copies of the requests shall be furnished all parties at the time they are submitted to the court. The court shall, on the record, rule on the requests prior to closing arguments to the jury. A verbatim record shall be made of any charge conference the court holds. Objections to the instructions to the jury shall be in accordance with R. 1:7-2.

(b) In Criminal Cases. Prior to closing arguments, the court shall hold a charge conference on the record in all criminal cases. At the conference the court shall advise counsel of the offenses, defenses and other legal issues to be charged and shall rule on requests made by counsel.

Court Rule 1:8-5.1:8-6. Sequestration of Juries

1:8-6. Sequestration of Juries

(a) Prior to Instructing of Jury. The jury shall not be sequestered in any action, civil or criminal, prior to the instructing of the jury by the court, unless the court, in its discretion so orders on its finding that there are extraordinary circumstances requiring sequestration for the protection of the jurors or in the interests of justice.

(b) Following Instructing of Jury. Following the instructing of the jury by the court and during the course of deliberations, the court may, in its discretion, in both civil and criminal actions, permit the dispersal of the jury for the night, for meals, and during other authorized intermissions in the deliberations.

Court Rule 1:8-5. Availability of Petit Jury List

1:8-5. Availability of Petit Jury List

The list of the general panel of petit jurors shall be made available by the clerk of the court to any party requesting the same at least ten days prior to the date fixed for trial. In cases where the death penalty may be imposed, the list shall be made available to any party requesting it at least twenty days prior to the date fixed for trial.

State v Petit-John Law Division Judge must make own findings on guilt on trial de novo

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6302-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHEILA PETIT-JOHN,

Defendant-Appellant.

_________________________________

Submitted July 14, 2009 - Decided

Before Judges Grall and Gilroy.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Municipal Appeal No. 2006-070.

Kevin C. Watkins, attorney for appellant.

Paula T. Dow, Essex County Prosecutor,
attorney for respondent (Jennifer Fetterman,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
Following a trial de novo in the Law Division, defendant
was convicted of shoplifting, N.J.S.A. 2C:20-11b(2). Defendant
appeals; we affirm the conviction, but remand to the Law
Division for re-sentencing.
August 25, 2009
A-6302-06T4
2
On appeal, defendant argues:
POINT I.

THE SUPERIOR COURT FAILED TO PROPERLY
SUPPLEMENT THE TRIAL COURT RECORD AND
THEREBY DID NOT CONSIDER IMPORTANT
EXCULPATORY EVIDENCE.

POINT II.

THE TRIAL COURT FAILED TO CONSIDER EVIDENCE
WHICH REBUTTED STATUTORY PRESUMPTION AGAINST
DEFENDANT.

POINT III.

THE JUDGMENT OF CONVICTION OF THE DEFENDANT
IS AGAINST THE WEIGHT OF EVIDENCE AND
SUSTAINING THE SAME WOULD BE A MISCARRIAGE
OF JUSTICE.

On November 22, 2003, Macy's department store Detective
Brooklyn Oliver charged defendant with shoplifting clothes and
other items of personalty from Macy's Millburn store, after
observing defendant and two other accomplices attempt to leave
the store without paying for the items. Specifically, Oliver
observed the three individuals remove price tickets and security
sensors from the clothing before placing the merchandise in
either defendant's purse or a shopping bag that defendant held
open to allow the merchandise to be hidden. On stopping
defendant and her cohorts outside of the store's entranceway,
Oliver found store merchandise in defendant's purse and in the
shopping bag she carried.
A-6302-06T4
3
On that day, after defendant identified herself as Natasha
Charles, she was charged with the indictable offense of
shoplifting and released. The Essex County Prosecutor
downgraded the charge to a disorderly persons offense. However,
defendant failed to appear for trial in the municipal court. On
March 28, 2006, after defendant was apprehended, she was charged
by the Millburn Township Police Department with the disorderly
persons offense of hindering her own apprehension, N.J.S.A.
2C:29-3b(4).1
The matter was tried in the Millburn Township Municipal
Court. On September 12, 2006, the court found defendant guilty
of the shoplifting and hindering apprehension charges. On the
conviction for hindering apprehension, the court imposed a
$1,000 fine on defendant, together with appropriate penalties
and assessments. On the conviction for shoplifting, the court
sentenced defendant to ten hours of community service, a $500
fine, and restitution in the amount of $281. The court also
imposed all appropriate fines and penalties. Defendant
appealed.

1
Although the order appealed from references this charge as
having been made under N.J.S.A. 2C:29-3(7), the complaint
summons indicates that the charge was made under N.J.S.A. 2C:29-
3b(4).
A-6302-06T4
4
On March 28, 2007, the Law Division conducted a trial de
novo on the record, after which it reserved decision. On June
26, 2007, the Law Division issued a written decision, finding
defendant not guilty on the charge of hindering apprehension,
but guilty on the charge of shoplifting. In so doing, the court
stated:
The [c]ourt agrees with the [M]unicipal
[C]ourt's assessment of credibility, and
also finds that the State had proven beyond
a reasonable doubt that the evidence from
the record supports a finding that
[d]efendant committed the offense of
shoplifting. Because the findings are
supported by substantial credible evidence,
the [c]ourt affirms [d]efendant's
shoplifting conviction.

On the same day, the court entered an order affirming the
conviction for shoplifting, impliedly affirming the sentence
imposed by the Municipal Court thereon.
Appeals from the Municipal Court to the Law Division are de
novo. R. 3:23-8. The "function [of the trial judge] is to
determine the case completely anew on the record made in the
Municipal Court, giving due, although not necessarily
controlling, regard to the opportunity of the magistrate to
judge the credibility of the witnesses." State v. Johnson, 42
N.J. 146, 157 (1964). The trial judge must make his or her "own
findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App.
Div.), certif. denied, 95 N.J. 197 (1983). The trial judge's
A-6302-06T4
5
function differs from this court's function. "His [or hers] is
not the appellate function governed by the substantial evidence
rule[,] but rather an independent fact-finding function . . . ."
Ibid.
Our scope of review is a limited one. "It is not our
function . . . to weigh the evidence anew and to make
independent findings of fact as if we were sitting in first
judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958).
"The test is 'whether the findings made [by the trial court]
could reasonably have been reached on sufficient[,] credible
evidence present in the record.'" State v. Barone, 147 N.J.
599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162)
(alteration in original). It is only when we are "thoroughly
satisfied that the finding is clearly a mistaken one and so
plainly unwarranted that the interests of justice demand
intervention and correction . . . [that we] should appraise the
record as if [we are] deciding the matter at inception and make
[our] own findings and conclusions." Johnson, supra, 42 N.J. at
162. However, "[a] trial court's interpretation of the law and
the legal consequences that flow from established facts are not
entitled to any special deference." Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A-6302-06T4
6
The Law Division incorrectly expressed its determination
as that of "affirming" the decision of the Municipal Court,
whereas that court's function on a trial de novo is to make its
own findings of fact and determination of guilt. Nonetheless,
the record contains overwhelming evidence of defendant's guilt.
However, the same cannot be said as to the Law Division
implicitly affirming the Municipal Court's sentence. Pursuant
to Rule 3:23-8(e), "[w]hen a Law Division judge conducts a trial
de novo and finds a defendant guilty[,] the sentence imposed by
the [M]unicipal [C]ourt may not be affirmed. Rather, the judge
must 'exercise . . . independent judgment . . . in the matter of
sentence.'" State v. Russo, 328 N.J. Super. 181, 186 n.3 (App.
Div.) (quoting State v. States, 44 N.J. 285, 293 (1965)),
certif. denied, 165 N.J. 134 (2000).
Accordingly, we affirm the conviction and remand for re-
sentencing.

State v Wallace- Denial of Suppression Motion remanded

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4239-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANNON WALLACE,

Defendant-Appellant.

________________________________________________________________

Submitted May 12, 2009 – Decided

Before Judges Wefing and Parker.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
01-08-1714.

Yvonne Smith Segars, Public Defender,
attorney for appellant (Arthur J. Owens,
Designated Counsel, on the briefs).

Anne Milgram, Attorney General, attorney for
respondent (Hillary Horton, Deputy Attorney
General, of counsel and on the brief).

PER CURIAM

Defendant Shannon Wallace appeals from an order entered
after a remand proceeding on April 6, 2005 denying his motion to
suppress evidence seized without a warrant. After denial of his
original motion on May 14, 2002, defendant was tried by a jury
and found guilty of third degree possession of a controlled
August 25, 2009
A-4239-06T4
2
dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third degree
possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -
5b(3); third degree possession with intent to distribute in a
school zone, N.J.S.A. 2C:35-7; two counts of third degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5b and -5d;
second degree possession of a weapon while committing a drug
crime, N.J.S.A. 2C:39-4.1a; fourth degree possession of a
prohibited weapon, N.J.S.A. 2C:39-3d; and second degree
possession of a weapon by a prohibited person, N.J.S.A. 2C:39-
7b. After the appropriate mergers, defendant was sentenced to an
aggregate term of twenty years subject to ten years parole
ineligibility.
These charges arose out of defendant's arrest on January
22, 2001 when Parole Officer Thomas High arrived at a residence
he knew defendant occupied. Along with eight other parole
officers, High intended to serve an arrest warrant for violation
of parole. The residence was within one thousand feet of a
school.
High had supervised defendant since 2000 and had made
numerous "home visits" to this address. High knew from past
visits that defendant occupied a second floor bedroom from which
High saw him "peek out" on January 22, 2001. When the officers
entered the house, they went to the second floor bedroom, where
A-4239-06T4
3
one of the officers saw a clip of eight vials of suspected
cocaine on a dresser. A drawer in the dresser was partially
opened and contained a black semi-automatic handgun. Other
officers found a bundle of drugs and a knife in the bedroom.
Under the mattress, along with other mail addressed to
defendant, they found a certificate from the Parole Department
addressed to defendant indicating that he had completed a
ninety-day reporting program. One thousand empty vials were
found under the bed.
Defendant was not in the second floor bedroom when the
officers entered it. One of the officers went to the attic and
found defendant hiding behind a clothes rack. When defendant was
seized and arrested, he did not have any shoes on. His
girlfriend, who was present at the time, indicated to the
officers that defendant's shoes were in the bedroom closet. His
work boots were retrieved from that closet.
After hearing the testimony at the suppression hearing, the
motion judge found that the officers were authorized to enter
the home and the bedroom pursuant to the warrant, regardless of
whether that was defendant's official address, because they had
seen defendant inside the residence on the date the warrant was
served and High had previously made "home visits" to this
address.
A-4239-06T4
4
His motion to suppress having been denied, defendant
proceeded to trial. The trial judge determined that all of the
evidence seized was admissible under the plain view doctrine,
including the evidence found under the bed and mattress.
Defendant appealed his conviction and on October 22, 2004,
we remanded the matter for a hearing for the trial judge to
explain the rationale for admitting into evidence the non-plain
view evidence – specifically, the one thousand vials found under
the bed and the paperwork under the mattress. State v. Wallace,
No. A-6001-02 (App. Div. Oct. 22, 2004) (slip op. at 11-12).
A remand hearing was conducted on March 17, 2005 by the
judge who had denied defendant's pre-trial suppression motion,
rather than the trial judge. The remand judge rendered a
decision on the record of that date in which he reviewed the
testimony and the evidence presented at the suppression hearing
and the applicable case law. The remand judge concluded that the
continuation of the search beyond the plain view evidence was
valid because "[i]t started with plain view, exigent
circumstance – under exigent circumstances, hot pursuit, valid
arrest warrant, and what they had found in plain view which
indicated the further dangerousness of the situation."
In this appeal, defendant argues:


A-4239-06T4
5
POINT ONE

THE INSTRUCTIONS OF THE APPELLATE DIVISION
WERE NOT FOLLOWED INSOFAR AS THE REMAND WAS
ASSIGNED THE JUDGE THAT DECIDED A PRETRIAL
MOTION INSTEAD OF THE JUDGE THAT PRESIDED
OVER THE TRIAL

POINT TWO

DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL

Defendant contends that the trial court did not comply with
our instructions on the remand hearing. We agree. The remand
hearing was not conducted by the same judge who tried the case.
Thus, the judge who heard the matter on remand could not have
been familiar with the officers' testimony at trial and could
not have been aware that certain crucial trial testimony
differed from the testimony given at the suppression hearing.
At trial, Parole Officer Russo testified that when he moved
the bed and lifted the mattress, he found defendant's paperwork
and the additional one thousand empty vials. He also testified
that defendant had already been arrested and secured at the time
he looked under the mattress and the bed. Russo's trial
testimony was contrary to other testimony during the suppression
hearing that the evidence under the mattress and the bed was
found while the officers were searching for defendant.
During the remand hearing, the trial judge stated:
A-4239-06T4
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The only issue before this [c]ourt is
whether the search by Officer Russo under
the mattress which [uncovered] a box of
empty vials and paperwork was lawful in the
event that the search is not supported by a
valid warrant . . . . The State has the
burden to demonstrate that the search falls
within one of the exceptions to the warrant
requirement. The State must prove by a
preponderance of the evidence [that] there
were no constitutional violations. State v.
Wilson, 178 N.J. 7 (2003).

The remand judge determined that since the officers were on
the premises legally pursuant to a valid warrant, the search
under the bed and the mattress occurred pursuant to the
officers' looking for defendant. Because the remand judge
reviewed only the suppression hearing testimony and did not
consider the contrary trial testimony, the finding on remand
that the vials and paperwork were located during the search for
defendant is not supported by the substantial credible evidence.
Defendant was charged with possession based upon the
paperwork found under the mattress. He was charged with intent
to distribute based upon the thousand vials seized from under
the bed. Given these circumstances and the divergence of Russo's
trial testimony from the testimony given at the suppression
hearing, we are constrained to remand once again for a further
hearing – this time by the trial judge – to determine whether
the items seized from under the mattress and the bed were
admissible at trial.
A-4239-06T4
7
We decline to address defendant's ineffective assistance of
counsel argument because it is more appropriately left for a
petition for post-conviction relief. State v. Preciose, 129 N.J.
451, 460-61 (1992).
Reversed and remanded for further proceedings consistent
with this opinion and our opinion rendered on October 22, 2004.
We do not retain jurisdiction.