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

Thursday, September 26, 2013

State v. William O’Driscoll (A-7-12; 070438)

State v. William O’Driscoll (A-7-12; 070438)
The police officer’s errors in the reading of the
standard statement informing defendant of the
consequences of refusing to provide a breath sample
were not material in light of the statutory purpose to
inform motorists and impel compliance. The officer’s
misstatements could not have reasonably affected
defendant’s choice to refuse to provide a breath
sample, and do not require reversal of defendant’s
conviction for refusal. 9-18-13

Wednesday, September 25, 2013

State v. Robert Handy (A-68-11; 069022)

State v. Robert Handy (A-68-11; 069022) 
The bifurcated trial procedure created in State v. Kahn, 175 N.J. Super. 72 (App. Div. 1980), is disapproved and that decision is overruled. In the future, trials that involve both a substantive defense and an insanity defense must be unitary proceedings. The matter is remanded to the trial court to afford defendant the opportunity to continue in a second phase of his trial which he may present his self-defense claim. 9-9-13 

Sunday, September 15, 2013


The "meaningful opportunity to present a complete defense" guaranteed by the Federal and New Jersey Constitutions is denied when the prosecution substantially interferes with a defendant's ability to secure witness testimony. In this case, the government conduct alleged did not result in the denial of witness testimony but, rather, in the denial of access to the witness for interview by the defense. Because such allegations, if true, would be proof of substantial interference with defendant's constitutionally guaranteed right of access to witnesses, we hold that the trial judge erred in failing to conduct an evidentiary hearing. In addition, we conclude that a reversal of defendant's convictions is required because the trial judge granted his motion to proceed pro se without adequately advising him of the consequences of his decision. 08-26-13 

Tuesday, September 10, 2013


Richard J. Hughes Justice Complex • PO Box 037 • Trenton, New Jersey 08625-0037 
Administrative Office of the Courts 
Acting Administrative Director of the Courts • Phone: 609-984-0275 • Fax: 609-984-6968 
[Questions and/or comments may be directed to 609-292-4638.] 
Directive # 01-13 
DATE: MARCH 18, 2013 
This Directive promulgates a standard form to be used and a protocol to be followed when a defendant who is facing indictable charge(s) elects to waive his or her first appearance. The form and protocol, which apply to first appearances in Municipal Court and in Superior Court, have been endorsed by the Conference of Criminal Presiding Judges, the Conference of Municipal Court Presiding Judges, the Conference of Criminal Division Managers, and the Conference of Municipal Division Managers. 
A. Waiver of First Appearance for Indictable Offenses – Rule 3:4-2 
Rule 3:4-2 provides that following the filing of a complaint, the defendant shall be brought before a judge for a first appearance without unnecessary delay, If the defendant remains in custody, the first appearance shall occur within 72 hours after arrest, excluding holidays, and shall be before a judge with authority to set bail for the offenses charged. Paragraph (e) of Rule 3:4-2 provides that a defendant who is represented by an attorney and is not incarcerated may waive the first appearance by filing a written statement signed by the attorney, unless otherwise ordered by the court. More specifically, Rule 3:4-2(e) provides that to waive the first appearance for indictable offenses, the attorney must certify that: 
1. the defendant has received a copy of the complaint and has read it or the attorney has read it and explained it to the defendant; 
2. the defendant understands the substance of the charge; 
3. the defendant has been informed of the right to remain silent and that any statement may be used against the defendant; Directive # 01-13 - Waiver of First Appearance – R. 3:4-2(e) March 18, 2013 - Page 2 
Richard J. Hughes Justice Complex • PO Box 037 • Trenton, New Jersey 08625-0037 

4. the defendant has been informed that there is a pretrial intervention program and where and how an application to that program may be made; and 
5. the defendant has been informed of the right to have a hearing as to probable cause, the right to indictment by the grand jury and trial by jury, and, if applicable, that the offense charged may be tried by the court upon waiver of indictment and trial by jury, if in writing and signed by the defendant. 
B. Procedures for a Defendant to File a Waiver of the First Appearance 

1. A defendant who is not incarcerated and is represented by counsel may waive the first appearance by completing the Waiver of First Appearance for Indictable Offenses Form (attached). The rule requires the defendant’s attorney to certify that the defendant has been advised of the information set forth in Rule 3:4-2(e). 

2. The Waiver of First Appearance for Indictable Offenses Form must be filed by the attorney with the Superior Court or Municipal Court where the first appearance is scheduled, either at or before the time fixed for the first appearance. The preference is for such filing to be done electronically. 

3. The attorney filing the Waiver of First Appearance for Indictable Offenses Form must provide a copy to the Criminal Division Manager’s office in the vicinage where the complaint has been filed and to the prosecuting attorney (i.e., the County Prosecutor or the Attorney General). The preference is for such copies to be provided electronically. 

This Waiver of First Appearance form can be modified for use in the rare instance that a first appearance for a non-indictable offense is held in Superior Court pursuant to Rule 3:4-2(c). 
Any questions or comments regarding this Directive may be directed to Joseph J. Barraco, Assistant Director for Criminal Practice at 609-292-4638 or Debra Jenkins, Assistant Director for Municipal Court Services Division at (609) 984-8241. 
cc: Chief Justice Stuart Rabner 
Attorney General Jeffrey S. Chiesa 
Public Defender Joseph E. Krakora 
Criminal Division Judges 
Municipal Court Judges 
Elie Honig, Director, DCJ 
County Prosecutors 
Steven D. Bonville, Chief of Staff 
AOC Directors and Assistant Directors 
Trial Court Administrators 
Criminal Division Managers 
Municipal Division Managers 
Assistant Criminal Division Managers 
Municipal Court Directors and Administrators 
Gurpreet M. Singh, Special Assistant 
Susan Callaghan, Chief, Criminal Practice 
Carol A. Welsch, Chief, Mun. Ct. Services 
Steven Somogyi, Municipal Ct. Services 
Melaney S. Payne, Criminal Practice 
Waiver of First Appearance for Indictable Offenses Form Original: Court Copies: County Prosecutor/Attorney General, Criminal Division Manager Form Promulgated by Directive #01-13 (03/18/2013), CN: 11688 

Waiver of First Appearance for Indictable Offenses 
For Attorney Use Only 
In accordance with R. 3:4-2(e), I am requesting a waiver of the first appearance 
scheduled for my client 
(client’s name) 
(date of first appearance)