Kenneth Vercammen & Associates, P.C.
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Wednesday, June 22, 2011

State of New Jersey v. Rice A-2783-10T4

The order granting suppression and remand for a consideration of any other issues regarding the temperature probe in conformity with this opinion and our holding in Holland. If the Law Division judge orders suppression for some other reason, the judge should enter an order memorializing that determination, vacate the guilty plea, and remand to the municipal court for a disposition of the charges on the State's observational case. If, however, the Law Division judge determines that suppression must be denied, then the judge shall sentence defendant based on the guilty plea previously entered.

Tuesday, June 21, 2011

State of New Jersey v. W.B. A-80-09


(1) Defendant’s recorded statement was admissible; (2) if a law enforcement officer’s notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge; (3) Dr. Coco’s statistics-based expert testimony on victim credibility was beyond the permissible scope of CSAAS evidence, but it did not compel reversal; (4) testimony regarding D.L.’s complaint more than one and one-half years after defendant’s sexual assault was properly admitted as fresh complaint testimony; (5) defendant’s conviction is not reversible based on the jury charge provided; and (6) the playback of defendant’s videotaped confession did not constitute an abuse of discretion.

State of New Jersey v. Handy A-108-09


The dispatcher’s conduct -- advising an officer on the scene that there was an outstanding warrant when the warrant contained a differently spelled name and a different date of birth -- was objectively unreasonable and violated the Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution. Evidence uncovered during the search incident to the arrest must be suppressed.

State of New Jersey v. Holland, State of New Jersey v. Pizzo A-4384-09T3,A-4775-09T3


Because the use of another manufacturer's temperature probe to calibrate the Alcotest machine does not alone compel exclusion of test results, we reverse the contrary finding of the Law Division judge in the Holland matter. Of course, the fact that the Alcotest results are not rendered automatically inadmissible thereby does not end the inquiry. Although the Alcotest machine has been found to be generally reliable, the State still bears the burden of demonstrating the "proper working order" of the device. As noted, this is accomplished by introducing into evidence the three core foundational documents, Chun, supra, 194 N.J. at 154, which the State had done in both the Holland and Pizzo matters. In other words, the State may meet its initial burden to support the admissibility of Alcotest results without reference to the calibration of the temperature probe. Thus, once the State has introduced the core documents into evidence and produced the other foundational documents in discovery, the burden of production shifts to the defendant to show why the machine was not in working order, namely, apropos to the present matters, whether and how the differences in the temperature probes had any impact at all. Absent further evidence in this regard, we discern no impediment to the admission of the Alcotest results as the State would have satisfied its ultimate burden of persuasion as to the device's reliability and accuracy.

Based on the foundational document itself, Holland raised sufficient questions as to the reliability of the Control Company's probe to warrant further inquiry. Specifically, the device was calibrated on May 26, 2009, by a State Police coordinator using a Control Company temperature probe with a serial number DDXAP2-149. During discovery, the State provided the Control Company Traceable Certificate of Calibration for Digital Thermometer as a foundational document, demonstrating the reliability of the temperature probe. However, contained on this certification are numerous serial numbers and "due dates," including a March 6, 2009 due date for temperature probe serial number 149. Although unexplained, the due date may possibly be the date the probe is due for re-certification.

State of New Jersey v. Davis A-5172-09T2


N.J.S.A. 2C:2-2(b)(3) defines "recklessly" as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. . .

In short, although we defer to the Law Division judge's finding of fact, we conclude, as a matter of law, that Davis's actions, which took place over the period of a few minutes at most, did not "recklessly creat[e] a risk" of "public inconvenience, annoyance or alarm" and did not involve "tumultuous behavior."While Davis's conduct was inappropriate and intemperate, it was not criminal under N.J.S.A.2C:33-2.

State of New Jersey v. Plummer A-2805-09T3

A warrant is not required to perform a search when a police officer is (1) lawfully present in the viewing area, (2) the officer inadvertently discovers the evidence in plain view, and (3) it is "immediately apparent" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure."

Wednesday, June 01, 2011


5-2-11 The offense of tampering with physical evidence is "an offense involving dishonesty," which requires the forfeiture of public office or employment under N.J.S.A. 2C:51-2(a)(1).



In seeking to prove defendant's blood alcohol content in this DWI prosecution, the State called an expert to testify about the results of a laboratory test performed on defendant's blood sample by another technician. In considering defendant's argument that the failure to produce the other technician violated the rights guaranteed him by the Confrontation Clause of the Sixth Amendment, the court held that in such circumstances the State must call a witness who has made an independent determination as to the results offered. The court concluded that a surrogate witness knowing nothing but what is stated in another's report will not satisfy a defendant's confrontation rights but nevertheless affirmed and found that the State called an appropriate witness because the witness supervised the testing process and signed the laboratory certificate. To satisfy the Confrontation Clause, the state must provide a witness who has made an independent determination as to laboratory tests or other scientific results offered.


5-4-11 Where the defendant was arrested under CDL DUI statute, and then refused to submit to a breath test, he could not be prosecuted under the general refusal statute. In this appeal the appellate court addressed the statute governing refusal by a commercial vehicle driver to submit to a breath test (CDL refusal), N.J.S.A. 39:3-10.24, and the general statute penalizing refusal to submit to a breath test (general refusal), N.J.S.A. 39:4-50.4a. The Court held that a charge of CDL refusal or general refusal requires, as a predicate, an arrest under the corresponding DUI statute, N.J.S.A. 39:3-10.13 or N.J.S.A. 39:4-50. Here, where defendant was arrested under the CDL statute, N.J.S.A. 39:3-10.13, and then refused to submit to a breath test, he could not be prosecuted for general refusal, N.J.S.A. 39:4-50.4a. The Court also held that, because citing the wrong refusal statute is not a technical defect, R. 7:2-5, and because CDL refusal is not a lesser included offense of general refusal, R. 7:14-2, the State was precluded from amending the complaint to charge defendant with CDL refusal after the ninety-day statute of limitations expired. For future guidance, the Court noted that a commercial vehicle driver whose conduct violates both the CDL and general DUI statutes may be arrested and charged under either or both statutes.


5-6-11 Counsel rendered ineffective assistance to defendant when she declined to file a motion on his behalf to retract his guilty plea and, at the sentencing hearing when retraction was raised, she denigrated defendant's position by disclosing to the judge the independent investigation that she and her office had undertaken that demonstrated defendant's guilt. Because the judge's determination regarding retraction was made on the basis of the unfavorable record created by defense counsel, we remanded for reassignment of counsel and a hearing on the issue of retraction before a different judge,

using pre-sentencing standards.