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

Tuesday, January 27, 2009

01-14-09 State v. McNeil a/k/a Minister Mahdian Ali

01-14-09 State v. Anthony McNeil a/k/a Minister Mahdian Ali
A defendant competent to stand trial under N.J.S.A. 2C:4-4 may not be competent to waive his or her right to counsel and to
represent himself pro se.

1-27-09 State of New Jersey v. Smith (A-93-07)

1-27-09 State of New Jersey v. Jama Smith (A-93-07)
The Court affirms defendant Jama Smith’s conviction on charges of knowingly possessing a firearm that has been defaced, in
violation of N.J.S.A. 2C:39-3(d). Because the term “knowingly” modifies “possession” in ths statutory provision, the State was required to prove that Smith knew he possessed the firearm. The State was not required to prove that Smith also knew that the
firearm was defaced.

1-22-09 State v. Reeds (A-103-07)

1-22-09 State v. Rahmann Reeds (A-103-07)
Defendant suffered undue prejudice from the evidence in the form of expert testimony opining, in effect, that he constructively
possessed the drugs found in the vehicle he was driving. This ultimate-issue testimony usurped the jury’s singular role in the
determination of defendant’s guilt and irredeemably tainted the remaining trial proofs, producing an unjust result in defendant’s trial.

Monday, January 26, 2009

Pat down during traffic stop requires belief person is armed and dangerous ARIZONA v. JOHNSON

Pat down during traffic stop requires belief person is armed and dangerous ARIZONA v. JOHNSON

certiorari to the court of appeals of arizona

No. 07–1122. Argued December 9, 2008—Decided January 26, 2009
In Terry v. Ohio, 392 U. S. 1 , this Court held that a “stop and frisk” may be conducted without violating the Fourth Amendment ’s ban on unreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a requirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk (patdown for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U. S. 249 .

While patrolling near a Tucson neighborhood associated with the Crips gang, police officers serving on Arizona’s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior and clothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out of the hearing of the front-seat passenger, about his gang affiliation. Because she suspected that he was armed, she patted him down for safety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor. The trial court denied his motion to suppress the evidence, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. Johnson was convicted. The Arizona Court of Appeals reversed. While recognizing that Johnson was lawfully seized, the court found that, prior to the frisk, the detention had evolved into a consensual conversation about his gang affiliation. Trevizo, the court therefore concluded, had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. The Arizona Supreme Court denied review.

Held: Officer Trevizo’s patdown of Johnson did not violate the Fourth Amendment ’s prohibition on unreasonable searches and seizures. Pp. 5–9.

(a) Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must be positioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. 392U. S.,at 24. Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a patdown is constitutional. Id., at 23–24, 27, 30–31. Traffic stops, which “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U. S. 420 , are “especially fraught with danger to police officers,” Michigan v. Long, 463 U. S. 1032 , who may minimize the risk of harm by exercising “ ‘unquestioned command of the situation,’ ” Maryland v. Wilson, 519 U. S. 408 . Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U. S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment ,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110–111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. 434 U. S., at 112. Wilson, 519 U. S., at 413, held that the Mimms rule applies to passengers as well as drivers, based on “the same weighty interest in officer safety.” Brendlin, 551 U. S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U. S., at 414. And as “the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, “the additional intrusion on the passenger is minimal,” id., at 415. Pp. 5–7.

(b) The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger, but concluded that once Officer Trevizo began questioning him on a matter unrelated to the traffic stop, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. The court portrayed the interrogation as consensual, and, Johnson emphasizes, Trevizo testified that Johnson could have refused to exit the vehicle and to submit to the patdown. But Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration. See Muehler v. Mena, 544 U. S. 93 . A reasonable passenger would understand that during the time a car is lawfully stopped, he or she is not free to terminate the encounter with the police and move about at will. Nothing occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Brendlin, 551 U. S., at 257. Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Pp. 7–9.

217 Ariz. 58, 170 P. 3d 667, reversed and remanded.

Ginsburg, J., delivered the opinion for a unanimous Court.

Tuesday, January 13, 2009

State v. James Jackson


If a criminal defendant waives his right to a jury trial and is found guilty in a bench trial, he may challenge his jury trial waiver on appeal solely on the ground that it was not voluntary and knowing. The other factors that the Supreme Court in Dunne directed a trial court to consider in determining whether to grant a defendant's motion to waive a jury trial are not designed to protect the rights of the defendant, but rather to assure that a trial before a judge rather than a jury does not undermine the public's confidence in the criminal justice system. Therefore, a defendant may not rely upon the trial court's misapplication of those other factors to obtain a new trial before a jury.

R.R. v New Jersey Department of Corrections


We hold that a sexually violent predator who has been civilly committed to a Special Treatment Unit has no constitutional right to marital privacy and conjugal visitation, and that regulations that do not establish such a right were properly promulgated and in accord with legislative intent.

Friday, January 02, 2009

State v. Paul Amelio


Based on the report to dispatch by defendant’s seventeen-year-old daughter, who identified herself, reported that her father
was driving drunk, described the vehicle, and exposed herself to criminal prosecution if her report was knowingly false, there
was reasonable and articulable suspicion of an offense to support a constitutional motor vehicle stop by the police.