Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
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Tuesday, May 31, 2016

Spring Municipal Court Law Review 2016


1. DWI Refusal notice withstands challenge
State v Quintero __ NJ Super __(App. Div. 2016)
The court affirms defendant's de novo conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant argues that the Attorney General's current standard statement under N.J.S.A. 39:4-50.2(e) is fundamentally deficient for not specifying the mandatory minimum penalties for refusal. In State v. O'Driscoll, 215 N.J. 461, 479-480 (2013), the Supreme Court noted, but declined to address, the sufficiency of the standard statement.
The court hold that the current standard statement satisfies the statutory mandate — that is, informing motorists and impelling compliance — by adequately informing drivers of the maximum potential license revocation and fine, and the possibility of ignition interlock, that they face for refusal. In so ruling, The court note that adding other details, including the differing mandatory minimum and maximum penalties for first offenders, second offenders, and certain third offenders, may run the risk of submerging the most significant penalties in those details.

2. Sup Mt denied where police looking in house for missing dementia patient found pot plants State v Mordente __ NJ Super.__ (App. Div. 2016) A-5838-13T1 
The court affirmed the denial of a motion to suppress the evidence of marijuana plants found in the basement of a home searched as part of the police protocol for locating missing persons. The sixty-five year old missing woman in this case suffered from dementia, and was reported by her son as having left the home at some point during the night prior to the search. 
   In his dissent, Judge Fuentes opines that the police emergency aid doctrine does not justify this search under the guidelines set forth in State v. Vargas, 213 N.J. 301 (2013), and prior case law. 

3. PTI can be reinstated State v AS-M
__ NJ Super __(App. Div. 2016)
The court held that a defendant terminated from the pre-trial intervention (PTI) program may be reinstated upon reconsideration. Such a reconsideration, which is not expressly precluded by N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of Rule 3:28, is especially permissible when circumstances show the initial order terminating a defendant from PTI failed to adhere to the requirements of N.J.S.A. 2C:43-13(e), including the obligation to undertake a "conscientious judgment" to (1) adequately consider whether the participant willfully violated the PTI conditions; and (2) determine whether the defendant remains a viable candidate for PTI under the original or modified PTI terms. 

4. Double jeopardy bars crime prosecution if a plea in municipal court
State v Miles __NJ Super __ (App. Div. 2015) A-2692-12T1
The defendant was arrested during an undercover drug operation. Defendant was charged on a warrant with possession of a CDS with intent to distribute on or near school property. Defendant was also charged on a summons with a disorderly persons offense of possession of marijuana.
After defendant was indicted, he appeared pro se in municipal court via videoconference after being incarcerated for a family matter. The disorderly persons drug offense, which was not joined with the indictable offense, was pending. Without the presence or participation of the State, but in accord with the existing "practice," the judge amended the offense to loitering and then took a plea from defendant. Predicated upon his plea, defendant sought to bar the prosecution of the indictable charge.
The court held that the subsequent prosecution and conviction on the indictable charge was barred under the "same evidence" test, which is still recognized under state constitutional principles. The court reasoned that the "fundamental fairness" doctrine did not apply, notwithstanding the State's failure to join the disorderly offense with the indictable charges and defendant's reasonable expectation that his plea to the disorderly offense charge resolved all charges, which arose out of his arrest.

5. Rule on recording Custodial interrogations reviewed
State v Anthony __ NJ Super __ (App. Div. 2016)
Rule 3:17(a) provides that, "[unless one of the exceptions set forth in paragraph (b) are present, all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with" certain listed crimes, including murder. However, subsection (b)(vi) excepts from the recordation requirement "a statement . . . given at a time when the accused is not a suspect for the crime to which that statement relates while the accused is being interrogated for a different crime that does not require recordation[.]"
In this case, defendant was arrested on an open motor vehicle warrant and interrogated regarding a homicide. The preliminary interrogation was not recorded, but, at some point, after concluding based on defendant's statements that he was a suspect in the homicide, investigators recorded his statement on video. The trial judge denied defendant's motion to suppress the statement and concluded there was no obligation to record the initial portion of the interrogation.
The court construed the somewhat ambiguous provisions of the Rule and conclude that an interrogation must be recorded if, taking into account the totality of the circumstances then known to the interrogator, a reasonable police officer would have a reasonable basis to believe defendant was a "suspect" in the crime about which he was being questioned. In this case, the court concluded that the trial judge properly determined that the investigators reasonably concluded that defendant was not a suspect when the interrogation began.

6.  Expert can only testify upon his own observations and not just read someone else’s report.
State v. Bass __ NJ ___ (2016)  (A-118-13)
     The limitation on defendant’s cross-examination of Sinclair constituted reversible error. Defendant is entitled to a new trial on the charges of murder, attempted murder and the possession of a weapon for an unlawful purpose. In addition, the substitute expert read portions of the deceased medical examiner’s autopsy report to the jury, rather than testifying based on his own observations and conclusions, which violated defendant’s confrontation rights. On retrial, any expert testimony by a substitute medical examiner should conform to State v. Michaels, 219 N.J. 1, cert. denied, 135 S. Ct. 761, (2014), and State v. Roach, 219 N.J. 58 (2014), cert. denied, 135 S. Ct. 2348 (2015). Defendant was not entitled to an instruction on the use of force against an intruder because he voluntarily admitted the victims to his room.

7 Defense to refusal where person medically unable to provide breath samples State v. Monaco __ NJ Super __ (App. Div. 2016)

 In affirming defendant's conviction of driving under the influence and refusal to submit to a chemical breath test, the court address two points related to the refusal conviction. First, applying State v. O'Driscoll, 215 N.J. 461 (2013), the court holds that defendant failed to present evidence that her refusal was materially affected by the failure to inform her that she would be required to install an ignition interlock if convicted. Second, the court holds that a defendant bears the burden to prove that he or she lacked the physical capacity to perform the chemical breath test. In this case, defendant maintained her asthma rendered her incapable of providing the minimum air volume. Although defendant's treating physician testified about her pulmonary function, the Law Division judge found the proofs were insufficient to establish defendant was incapable of providing the requisite air volume.

8. Stop of car and search improper based on strange pause
State v. V.A.-M. App. Div. unreported 14-2-8638
After his motion to suppress was denied in municipal court, 18-year-old defendant V.A.-M. pleaded guilty to loitering to obtain a controlled dangerous substance and was sentenced to a fine of $350, plus court costs and fees. Defendant appealed, and the Law Division affirmed the municipal court's denial of defendant's motion to suppress and imposed the sentence. Defendant then challenged the stop of the motor vehicle in which he was a passenger and the subsequent warrantless search and seizure of a pipe from his pants pocket that was alleged to be drug paraphernalia.
Because the police stop could not be justified either as an investigatory stop or under the community-caretaking doctrine, the appellate panel reversed. The community-caretaking doctrine did not justify the stop of the vehicle and warrantless search of defendant, as the officers did not have an objectively reasonable basis to believe that an emergency required immediate action to protect life or prevent serious injury. The police officer did not indicate that he stopped the vehicle because of the manner in which it was driving. As such, the Law Division's reliance on the "strange pause" of the vehicle and its attempt to continue driving was misplaced. Moreover, the officer testified that once he spotted the vehicle and realized that it matched the description he had received from dispatch, he intended to stop it based on the anonymous citizen’s report alone.
The panel found that the anonymous call to police reporting benign and non-criminal activity was insufficient to justify an investigative stop. The call reported a parked car, with a white male running up and down a hill. While a concerned citizen was apparently sufficiently troubled to call police, the reported activity was more in the nature of innocent frolicking than criminal activity. A parked car and a male running up and down a hill on a winter evening did not rise to the level of reasonable articulable suspicion of criminal activity necessary to justify an investigatory stop. Because the stop was constitutionally defective, the subsequent statements by, and search of, defendant the court suppressed. Source Daily Briefing - 12/14/2015

N.J. Municipal Court - Law Review SUBSCRIPTION INFO

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Kenneth A. Vercammen, Esq.,   
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2053 Woodbridge Ave.
Edison, NJ 08817
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1. DWI Refusal notice withstands challenge
State v Quintero
2. Sup Mt denied where police looking in house for missing dementia patient found pot plants State v Mordente
3. PTI can be reinstated State v AS-M
4. Double jeopardy bars crime prosecution if a plea in municipal court
State v Miles
5. Rule on recording Custodial interrogations reviewed
State v Anthony
6.  Expert can only testify upon his own observations and not just read someone else’s report.
State v. Bass
7 Defense to refusal where person medically unable to provide breath samples
8 Stop of car and search improper based on strange pause
State v. V.A.-M.
9. Summer Happy Hour July 15.

Photo Mun Ct College: PAGE 1
Photo Municipal Court College
Josh Reinitz, Esq, John Menzel Esq, Norma Murgado Elizabeth & Woodbridge Prosecutor, Kenneth Vercammen
Also participating Tara Auciello Edison Prosecutor
300-page seminar book available from NJ ICLE 732-214-8511

Attorneys, Professionals, 5k runners, Friends, Law Enforcement invited to Summer Blast Happy Hour & Networking Social
July 15, 2016 Friday
at Bar Anticipation
703 16th Avenue Lake Como/ Belmar, NJ 07719
   Free !
5:30-7:55PM 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.

      If your group, non-profit or organization wishes to co-sponsor the next networking happy hour, please contact
2053 Woodbridge Ave. Edison, NJ 08817  

May 18th Wednesday from 1:00-2:40  “Ethical Marketing” Seminar
Making Money in Municipal Court the Ethical Way
Borgata Atlantic City
NJSBA Annual Meeting

Speakers: Kenneth Vercammen, Esq, Past Municipal Court Attorney of the Year
Hon. Catlado Fazio, J.M.C.  Hoboken
Jason T. Komninos, Esq.
Law Office of Jason t. Komninos, Hackensack
Shanna McCann,.Esq.
Chance & McCann, LLC, Bridgeton
Karen A. Ostberg, Esq.
Law Office of Karen A. Ostberg, Brielle
Learn how to make more money by ethically marketing your practice... and staying ethically compliant!
  Proven techniques for promoting your practice while staying within the ethics rules, even if you handle cases other than Municipal Court.

New Jersey Law Center
  Tuesday, 6/21 - 9:00AM to 3:00PM
Earn up to 5.7 credits!  NJICLE

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 award winning 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 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. 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.
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

Thursday, May 12, 2016


A police officer stopped defendant's car because one of the four tail lights was not illuminated. The Law Division granted defendant's motion to suppress finding that N.J.S.A. 39:3-61(a) and -66 only required one functioning tail light on each side and the officer's mistake rendered the stop unreasonable. 

We reversed, noting the confusing state of Title 39 and concluding that the officer had reasonable and articulable suspicion of a motor vehicle violation. 


In this case of first impression, we interpret N.J.S.A. 2C:40-26(b), which provides that it is a crime of the fourth degree to operate a motor vehicle during a period of license suspension if the license was suspended for a second violation 
of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4(a), as including out-of-state convictions for DWI. 

We reached our determination after consideration of analogous statutes relating to interstate recognition of motor vehicle violations and the use of equivalent out-of-state convictions as prior offenses for enhanced DWI sentencing. We also considered the legislative policy behind the statute's enactment. 

State v. Denelsbeck (A-42-1

State v. Denelsbeck (A-42-14; 075170) 

Third or subsequent DWI offenders are not entitled to a jury trial, and defendant’s conviction procured by a bench trial did not violate his Sixth Amendment right to a jury trial. 

State v. Richard Willis (A-115-13;

State v. Richard Willis (A-115-13; 073908) 

The relevance of an alleged sexual assault three years before defendant’s encounter with K.M. was so marginal that it should have been excluded. Moreover, the erroneous admission of this evidence cannot be considered harmless as the quality and quantity of the evidence, introduced to inform the jury of defendant’s intent in April 2006, overwhelmed the State’s case-in-chief. 

State v. Lee Funderburg (A-29-14

State v. Lee Funderburg (A-29-14; 074760) 

Defendant was not entitled to a jury instruction on attempted passion/provocation manslaughter because the facts before the trial court did not clearly indicate that the elements of attempted passion/provocation manslaughter were present. In particular, there was insufficient evidence before the jury to demonstrate that a reasonable person in defendant’s position would have been adequately provoked by the victim’s behavior. 

State v. Demetrius Cope (A-13-14

State v. Demetrius Cope (A-13-14; 074206) 
1) After arresting defendant in his living room, the police conducted a protective sweep of an adjoining porch to ensure no individuals posing a safety risk were on the premises. The sweep did not violate constitutional standards and the trial court properly denied the motion to suppress the rifle. 2) The trial court abused its discretion when it denied defendant the right to present a full third-party-guilt defense. A witness whose testimony is central to a defense of third-party guilt cannot be kept off the stand unless the expected version of events is so patently false that the events could not have occurred.