Kenneth Vercammen & Associates, P.C.
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Tuesday, June 17, 2014

05/02/14 STATE VS. DORSAINVIL A-0879-10T2

     After a jury trial, defendant was convicted of first degree conspiracy to commit murder, second degree aggravated assault, and related second and third degree offenses. On the second day of deliberations, the jury reported it was "hopelessly deadlocked." Immediately following the jury's report of an inability to reach a unanimous verdict, sheriff's officers intervened at the jury's request to dissolve a physical altercation between two jurors. The trial court denied defendant's motion for a mistrial.
     We reverse. A physical altercation between two or more deliberating jurors constitutes an irreparable breakdown in the civility and  decorum expected  to    dominate the deliberative process envisioned by the Court in State v. Czachor, 82 N.J. 392 (1980). A jury verdict so tainted cannot stand as a matter of law. The trial judge's supplemental instructions to restore order exacerbated the problem by imposing a judicially crafted civility code of conduct that placed the judge at the center of jury deliberations in violation of State v. Figueroa, 190 N.J.
219 (2007).

05/05/14 STATE V. BUCKNER A-0630-12T1

We uphold the constitutionality of N.J.S.A. 43:6A-13(b), which authorizes the New Jersey Supreme Court to recall retired judges for temporary service, including those who have reached age seventy, an issue of first impression in this State.
Judge Harris, in dissent, concludes otherwise.

05/09/14 STATE V. PATTERSON A-2055-10T1

We hold that the drug-trafficking recidivist provision in N.J.S.A. 2C:43-6(f) cannot be the basis to impose a mandatory extended term for the offense of drug trafficking within 500 feet of a public housing facility under N.J.S.A. 2C:35-7.1. N.J.S.A. 2C:43-6(f) has never been amended to add the subsequently-enacted N.J.S.A. 2C:35-7.1 to its list of drug trafficking offenses for which an extended term is required. The prosecution may move to apply N.J.S.A. 2C:43-6(f) to the N.J.S.A. 2C:35-5 count, and the resulting minimum term of parole ineligibility will survive the merger of that count with the N.J.S.A. 2C:35-7.1 count. Because defendant attempted to explain away the cash in his pocket by using his post-arrest statement that "he was unemployed and that he won the money in Atlantic City gambling," the prosecutor's reference to his statement and his unemployment was not reversible error.

05/13/14 STATE V. BIVINS A-1577-12T2

05/13/14 STATE V. BIVINS
In this appeal, we consider whether the scope of the permissible area and persons to be searched, pursuant to a search warrant, extends to the location where defendant was found, seated in a vehicle, parked on the street, five or six houses away from the premises where a search warrant was being executed. The motion judge found there was probable cause to search defendant based upon the search warrant. We reverse holding pursuant to Bailey v. United States, __ U.S. __, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013), the search and seizure was beyond the spatial limits of the search warrant.

05/21/14 STATE V. WITT A-0866-13T2

05/21/14 STATE V. WITT
       The court granted leave to appeal an order granting defendant's motion to suppress evidence seized during a warrantless search of his vehicle. The court affirmed not only because it is bound by State v. Pena-Flores, 198 N.J. 6 (2009), and its many antecedents, and not only because no exigencies  for the  search were  revealed  during the suppression hearing,  but also    because  there was no legitimate basis for the motor vehicle stop that preceded the search. In this last regard, the record demonstrated that the police officer stopped defendant's vehicle because defendant did not dim his high beams as he drove by the officer's parked patrol vehicle. Because the patrol vehicle was not an "oncoming vehicle," and because there were no other "oncoming vehicles" on the road at the time, the police officer did not have objectively reasonable grounds to believe defendant had violated the high-beam statute, N.J.S.A. 39:3-60, in making the vehicle stop.


       We   held that the  Juvenile  Justice Commission's "interim policy" on transferring juveniles to adult prisons was invalid, because it was not adopted in compliance with the Administrative Procedures Act. We also found that the agency's action in transferring Y.C. was contrary to State ex rel. J.J., 427 N.J. Super. 541 (App. Div. 2012), which invalidated the JJC's transfer regulations and indicated that the     agency must adopt new regulations before transferring a juvenile to an adult prison. We ordered that Y.C. be given a new transfer hearing, to be conducted by the Office of Administrative Law, and ordered the JJC to adopt new regulations within 180 days.

06/10/14 STATE v. NUNEZ A-3197-11T2

06/10/14 STATE v. NUNEZ
We reverse defendant's murder conviction because the trial judge permitted the State to bolster its case by calling defendant's investigator to testify to a prior consistent statement of the State's only eyewitness in violation of defendant's right to counsel.