1. Driver is not subject to criminal driving while
suspended if DWI suspension period expired prior to driving
State v Perry __ NJ Super. ___ (App. Div. 2015) Docket A-1767 -13T2
N.J.S.A. 2C:40-26(a) and (b) make driving
while suspended under specified circumstances a fourth-degree crime, punishable
by a mandatory minimum jail term of 180 days, where the underlying suspension
arose from driving while intoxicated (DWI), N.J.S.A. 39:4-50, and/or refusal to
submit to chemical testing, N.J.S.A. 39:4-50.4(a). The court concluded in these
appeals that prosecutions under the statute can be brought only if the act of
driving while suspended occurs during the court-imposed term of suspension.
Note- Ken V
successfully represented four of the winning parties before the Law Division.
The Appellate Division affirmed the well-reasoned opinion of Hon. Douglas
Wolfson JSC.
2. Court permits police to
ignore guidelines requiring Alcohol influence report be given to DWI suspects
State v Sorensen __ NJ Super.
__ (App. Div. 2015) A-3797-13T4
After the
Law Division suppressed defendant's blood alcohol content (BAC) results, it
sentenced her on her guilty plea to driving under the influence. Nonetheless,
the State's appeal of the suppression was not barred by double jeopardy because
defendant had entered a conditional plea to, and been sentenced for, the per se
violation in Municipal Court.
The Law Division suppressed
the BAC results because the Alcotest operator did not give a copy of the
Alcohol Influence Report (AIR) to the arrestee in the police station. Although
State v. Chun, 194 N.J. 54, 82 (2008), said the operator "must" do
so, that comment about recommended Alcotest procedure did not override the
statutory standard only requiring the police to give a copy of the breath test results
upon request. N.J.S.A. 39:4-50.2(b). In any event, the timing of copy delivery
does not affect the validity of the test results. Moreover, police must advise
arrestees of their ability to request a copy and to get an independent test.
Therefore, suppression is not warranted in the absence of prejudice.
Furthermore, a suppression remedy should not be imposed retroactively.
Judge Sabatino concurs in
the result. Given the time-sensitive dissipation of alcohol in the bloodstream,
he believes Chun sensibly requires the operator to provide a copy of the AIR
contemporaneously, consistent with the policies of the Attorney General and the
State Police, and that the statute does not foreclose affording such added
procedural protection to tested drivers.
He agrees that suppression in this case and retroactive relief are not
warranted.
3. No home
release or wristlet if mandatory 180 jail
State v Harris 439 NJ Super. 150 (App. Div. 2015)
Following
the recent opinion in State v. French, 437 N.J. Super. 333 (App. Div.
2014), the court hold that a defendant convicted of violating either N.J.S.A.
2C:40-26a or N.J.S.A. 2C:40-26b must be sentenced to at least 180 days in jail
without parole. French held that a sentence to an in-patient drug rehabilitation
program in lieu of jail was an illegal sentence under section 26b. The court
conclude that, under section 26a or 26b, a sentence to any other non-custodial
alternative program, such as a home detention program (HEDS) or a community
service program (CSLS), is likewise illegal.
4. Private prosecutor not
permitted unless municipal prosecutor unable to prosecute State v Myerowitz __ NJ Super. __ (App. Div. 2015) A-6032-12T2
Defendant appealed from the judgment of
the Law Division finding him guilty of harassment after conducting a de novo
review of the trial record developed in the municipal court. The Court reversed
and held defendant's conviction in the municipal court was void ab initio because
he was prosecuted by a private attorney who did not comply with the
requirements in State v. Storm, 141 N.J. 245 (1995) and codified in Rule
7:8-7(b). Without cross-complaints from complaining witnesses there are no
legal grounds to permit a private attorney to represent the State. Public
policy favors prosecutions conducted by independent prosecutors. A municipal
court judge should obtain an
on-the-record statement confirming the prosecutor's recusal in the case.
However, if the municipal prosecutor insists on proceeding with the
prosecution, the prosecutor's decision should be final. Use of the form
approved by the Administrative Director of the Courts is not discretionary. The
questions contained therein, including the precise phraseology used, constitutes
the expressed method adopted by the Supreme Court to accommodate the public
policy concerns expressed in Storm.
5. Court Says Pot Odor, Gun
Reports Did Not Justify Search State v. Samuell App. Div. unreported
11-07-0710
decided February
25, 2015
Defendant,
indicted on multiple counts charging the possession of marijuana with intent to
distribute and firearms offenses, appealed his conviction by guilty plea to
fourth degree possession of more than 50 grams of marijuana entered after the
trial court denied his motion to suppress. The panel reversed, finding that
under the circumstances, the police officer contravened constitutional
prohibitions when he jumped over the fence surrounding the backyard of a
private residence and came up on the back porch to detain an occupant of the
house who had come out on the back porch because the officer did not have
probable cause to believe that that person was committing a firearms offense or
an indictable marijuana offense and the officer's reasonable and articulable
suspicion of criminal activity did not authorize the police to enter private
property to further their investigation and the state made no showing of an
exception to the warrant requirement when the officer jumped the fence. The
panel concluded that because the police observation of additional evidence in
plain view and the evidence seized pursuant to the search warrant were the
fruits of the initial unlawful entry, the evidence should have been
suppressed. Source DailyBriefing New Jersey Law Journal February
26, 2015
6.
ALJ can reduce suspension proposed by MVC
Bamfo
v. New Jersey Motor Vehicle Commission App. Div. unreported docket A-1110-13T2 decided Jan. 8, 2015
Bamfo appealed
from a final decision of the Motor Vehicle Commission suspending his driver's
license for 30 days because he was convicted of a moving violation while his
license was on probationary status as a result of prior violations. Affirming,
the panel found that the MVC had applied the applicable statutes and
regulations in determining that a suspension was required because of Bamfo's
record of moving violations and that the period of suspension, which had been
reduced from 90 days, was an appropriate accommodation of his hardship request
(that his job required that he drive and he might lose the job), and that Bamfo
had provided no ground for the court to disagree with the MVC's decision. Daily Briefing is a member
benefit of the NJ State Bar Association. More benefits can be found at www.njsba.com.
7. Lawyer Had No Duty to Disclose
Client's possible Indictable Offense State
v. Kane App. Div. docket 12-07-0449 unreported decided February
17, 2015
A lawyer whose client pleaded guilty in municipal court to the traffic
offense of driving with a suspended license was not obligated to inform the
judge and prosecutor that the client was subject to indictment and harsher
penalties because her license had been suspended for drunken driving, a New
Jersey appeals court has held. The court, however, faulted the lawyer, Steven
Kaplan, for having his client, Davi Kane, later withdraw the guilty plea
without explaining to her that she would lose her protection against double
jeopardy and be exposed to prosecution for a fourth-degree crime carrying a
minimum half-year in jail, which is what eventually occurred. Source New Jersey Law Journal
February 25, 2015
8. Ken V now Certified Municipal Court Law
Attorney
Kenneth Vercammen passed the test to be
designated as a “Certified Municipal Court Law Attorney” by the NJ Supreme
Court. He is part of the first group of attorneys ever been found
qualified by the Board, and authorized to designate themselves as Municipal
Court Law Attorneys before the public, the bar, and the courts of this State in
accordance with the Rules of this Court during their good behavior for a term
of five years from the date of this Order, as announced by Stuart Rabner Court
Justice.
Metuchen Municipal Court help: Ken
also was sworn in again as Metuchen Public Defender. Court typically sits
Wednesday Night. If an attorney needs coverage Metuchen fax our office
732-572-0030 and we will try to help.
9
Next legal events
April 20 Nuts and Bolts of Elder Law ICLE NJ Law
Center
May 6, 2015 Expungement Criminal Arrests and
conviction Seminar at Ken Vercammen’s Law office for person previously charged
with offenses and their family who are concerned about the old criminal charges
of their children.
May
10-16 National Police Week free Wills for Heroes prepared in May
10. July
17 Summer Blast Happy Hour at Bar
Anticipation
You are
invited….
Kenneth
Vercammen Law Office
30th Anniversary Party
"Celebrating
30 years of providing excellent service to clients and the community"
1985-2015
Happy Hour, Client
& Community Appreciation. Open to the public
Food,
Refreshments, T- shirts and special gifts
at Bar Anticipation
703 16th Avenue Lake Como/ Belmar,
NJ 07719
Free !
5:30-7:30PM Hot & Cold Buffet
The reduced price Happy Hour is 6-7PM with $1.50 House Drink, Bud/BudLt draft & House Wine
Special
Please bring a canned food donation for
a community food bank, continuing to provide food and help to individuals in
need.
Email Ken Vercammen's Law Office so we can
put your name on the VIP list for wristbands. VercammenLaw@Njlaws.com
During the past 30 years I have stayed
in touch with the many persons I've had the pleasure of meeting at community
activities, running races, Bar Association events and educational seminars. You
are invited to our 30th Anniversary Party.
11. Free
Office Space for New Attorney and go to Court & Mentor program- Edison, NJ
available March 1
Kenneth Vercammen’s Law
Office has a space sharing opportunity for new lawyer or recent Transitional
attorney to get experience and go to court and learn NJ Law office procedures
and handle Public Defender cases. This is a mentoring experience where you can
learn NJ Law Office Procedure.
Attorney will be
provided with use of desk on main floor, plus if needed private office space in
furnished basement to start their practice, rent-free. They can see clients in
first floor office rooms. In return they will handle municipal court
appearances, Telephone communications with courts, prosecutors, clients, etc, Will
signings and other legal work and criminal law website updates in lieu of rent
for maximum 5 hours per week.
Go to court and get court experience.
Excellent opportunity to jump-start your career. You will get to represent
people in Municipal Courts in Middlesex, Union and Monmouth County and meet the
top Prosecutors and Judges. Must be admitted in NJ and have a car.
Learn to interview potential Municipal
Court/Criminal clients. Also learn to draft Wills and work on Litigation files.
Attorney may also help provide legal assistance to members of prepaid legal
plans and public defender clients. Follow up contact calls with clients,
courts, prosecutors and bar associations.
Excellent
mentoring position for the right attorney. Are you hardworking and aggressive?
Visit our website: www.njlaws.com to learn about our office.
The following is included with office
use:
Desk
space
Reception
room for clients and use as Bona Fide Office
You
can copy and use our Complaints, Motions, Form Letters and Pleadings.
Use our marketing books, marketing CDs,
Criminal, Municipal Court and Elder law audiotapes and video library now
located in basement
Use of our computer forms Motions, Complaints,
and Form letters
Ability
to use a file cabinet in basement to store your old files
Lighting/
Utilities
Bathroom
Supplies
Landscaping
/ Snow Removal
Valuable
advice
Hot
water, municipal water/sewer charge paid
If interested, fax, email or mail
a resume and cover letter.
KENNETH VERCAMMEN &
ASSOCIATES, PC ATTORNEY AT LAW
2053 Woodbridge Ave. Edison, NJ 08817(Phone) 732-572-0500
(Fax) 732-572-0030
vercammenlaw@njlaws.com
12. N.J. Municipal Court Law Review SUBSCRIPTION INFO
Please forward a check or
voucher for $20.00 to receive the NJ Municipal Court Law Review. This quarterly newsletter reports changes
in New Jersey Court decisions, selected revised motor vehicle and criminal
laws, cases, seminars, and information on Municipal Court practice.
Vouchers accepted. Please
send a stamped, self-addressed envelope for their return. Multiple subscriptions encouraged.
Please must send a $20.00
check payable to Vercammen & Associates, PC.
If the law firm or municipality no longer wishes to subscribe, please
fax or mail us.
Name: ______________________________________
(or staple business card here)
Address: ______________________________________
We also need your email address
________________________
Return to:
Kenneth A. Vercammen, Esq.,
Editor- NJ Municipal Court
Law Review
2053
Woodbridge Ave.
Edison,
NJ 08817
732-572-0500
Tax ID #
available
Index
1. Driver is
not subject to criminal driving while suspended if DWI suspension period
expired prior to driving
State v Perry
2. Court permits police to ignore
guidelines requiring Alcohol influence report be given to DWI suspects
State v Sorensen
3. No home
release or wristlet if mandatory 180 jail
State v Harris
4. Private prosecutor not permitted unless municipal
prosecutor unable to prosecute State v Myerowitz
5. Court Says Pot Odor, Gun Reports Did Not Justify
Search State
v. Samuell
6. ALJ can reduce suspension proposed by MVC
Bamfo
v. New Jersey Motor Vehicle Commission
7. Lawyer Had No Duty to Disclose Client's possible Indictable Offense State v. Kane
8. Ken V now Certified Municipal Court Law
Attorney
9 Next legal events
10. July
17 Summer Blast Happy Hour at Bar
Anticipation
11. Free
Office Space for New Attorney and go to Court & Mentor program- Edison, NJ
available March 1
12. N.J. Municipal Court Law Review SUBSCRIPTION INFO
Kenneth
Vercammen
is an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate,
Civil Litigation and Estate Administration matters. Ken is author of the American
Bar Association's new book “Criminal Law Forms” and often lectures to trial
lawyers of the American Bar Association, NJ State Bar Association and Middlesex
County Bar Association. As the Past
Chair of the Municipal Court Section he
has served on its board for 10 years.
Awarded
the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County
Bar Association, he also received the NJSBA- YLD Service to the Bar Award and
the General Practitioner Attorney of the Year, now Solo Attorney of the Year.
Ken
Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and
Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American
Bar Association, and Middlesex County Bar Association. His articles have been published
by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette
and New Jersey Lawyer magazine. He was a
speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is
the Editor in Chief of the NJ Municipal Court Law Review.
For
nine years he served as the Cranbury Township Prosecutor and also was a Special
Acting Prosecutor in nine different towns. Ken has successfully handled over one
thousand Municipal Court and Superior Court matters in the past 27 years.
His
private practice has devoted a substantial portion of professional time to the
preparation and trial of litigated matters. Appearing in Courts throughout New
Jersey several times each week on Criminal and Municipal Court trials, civil and
contested Probate hearings. Ken also serves
as the Editor of the popular legal website www.njlaws.com and related blogs.
In Law School he was a member of the Law Review, winner of the ATLA trial
competition and top ten in class.
Throughout his career he has served
the NJSBA in many leadership and volunteer positions. Ken has testified for the
NJSBA before the Senate Judiciary Committee to support changes in the DWI law
to permit restricted use driver license and interlock legislation. Ken also
testified before the Assembly Judiciary Committee in favor of the first-time
criminal offender “Conditional Dismissal” legislation which permits dismissal
of some criminal charges. He is the voice of the Solo and Small firm attorneys
who juggle active court practice with bar and community activities. Recently,
the ABA Solo Division has selected Ken to write its new book on “Marketing for
the New and Small Firm Attorney”. In his private life he has been a member of
the NJ State champion Raritan Valley Road Runners master’s team and is a 4th
degree black belt.
KENNETH
VERCAMMEN
ATTORNEY AT LAW
2053 Woodbridge
Ave.
Edison, NJ 08817
(Phone)
732-572-0500
