STATE OF NEW JERSEY VS. DONNELL JONES A-3396-14T3

STATE OF NEW JERSEY VS. DONNELL JONES 

A-3396-14T3 

Defendant's post-conviction relief petition, asserting his attorney's failure to file a direct appeal, was denied. There being no dispute defendant requested an appeal after judgment was entered, prejudice should have been presumed and the PCR judge should not have assessed the merit of the arguments defendant would have pursued had his appeal not been negligently forfeited. The court allowed defendant forty-five days to appeal the three-year-old judgment of conviction. 

STATE OF NEW JERSEY VS. MATTHEW J. WALTERS A-0203-14T1

STATE OF NEW JERSEY VS. MATTHEW J. WALTERS 

A-0203-14T1 

Defendant Matthew J. Walters appeals from the Law Division order that removed gap-time credit from a previously-entered judgment of conviction (JOC). The Law Division found that gap-time credit cannot be awarded for a sentence imposed on a Title 39 violation - driving while intoxicated (DWI), N.J.S.A. 39:4-50. We concluded that nothing in the language or statutory scheme of N.J.S.A. 2C:44-5(b) supports the conclusion that a defendant must be convicted for a Criminal Code offense to receive gap-time credits. Given that defendant has satisfied the requirements of N.J.S.A. 2C:44-5(b)(2), he is entitled to gap-time credits even though the sentence was for a Title 39 violation. Reversed and remanded to the Law Division for amendment of the judgment of conviction to reflect the proper award of gap-time credits. 

STATE IN THE INTEREST OF J.F. A-0392-15T3

STATE IN THE INTEREST OF J.F. 

A-0392-15T3 

In this appeal, the majority affirms the trial court's denial of the State's juvenile waiver application, both for the reasons stated by the trial judge and on the alternate basis that the new higher statutory age requirement of N.J.S.A. 2A:4A-26.1(c)(1), as appropriately applied retroactively, precludes waiver of J.F., who was fourteen years old at the time of the shooting that gave rise to the charges. 

Judge Gilson concurs with the majority based on the decision by the trial judge, but opines that this court should not have considered the retroactivity of the age provision in the revised waiver statute because no party raised that issue. 

STATE OF NEW JERSEY VS. JAMES E. JONES AND LIKISHA JONES AND GODFREY J. GIBSON A-3600-13T2/A-4230-13T1

STATE OF NEW JERSEY VS. JAMES E. JONES AND LIKISHA JONES AND GODFREY J. GIBSON 

A-3600-13T2/A-4230-13T1 

Co-defendants were indicted for the offenses resulting from their conduct in 2002, when they drove their sister to woods near the New Jersey Turnpike so she could hide her dead child's body. The Law Division judge applied the DNA exception to the five-year statute of limitations in denying defendants' motion to dismiss the indictment. See N.J.S.A. 2C:1-6(c). 

The conspiracy count of the indictment, which alleged obstruction in that the co-defendants intimidated the victim's sister into silence, survived because it was a "continuing offense." See State v. Diorio, 216 N.J. 598 (2014). We found, however, that the DNA exception did not apply to any charge as the DNA match only identified the victim, and not the "actor" as required by the statute. See State v. Twiggs, ___ N.J. Super. ___, (App. Div. 2016) (slip op. at 9). The denial of the motion to dismiss the indictment was reversed, except for the conspiracy count. 

MARY T. KLEINE VS. EMERITUS AT EMERSON ET AL. A-4453-14T3

MARY T. KLEINE VS. EMERITUS AT EMERSON ET AL. 

A-4453-14T3 

In reviewing an order compelling the arbitration of a dispute between a patient and a nursing home facility, the court recognized that the Federal Arbitration Act and its liberal policy favoring arbitration precluded application of the New Jersey Nursing Home Act's prohibition on compelled arbitration of such disputes. Notwithstanding, the arbitration clause in question called for arbitration administered by the American Arbitration Association, which had a policy of declining to administer the arbitration of health care disputes. Because the forum ostensibly agreed upon was not available, the court held that the patient could not be compelled to arbitrate and reversed. 

CAPITAL HEALTH SYSTEM, INC., ET AL. VS. NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE A-1211-15T3

CAPITAL HEALTH SYSTEM, INC., ET AL. VS. NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE 

A-1211-15T3 

In this case, ten New Jersey hospitals challenged the Department of Banking and Insurance's decision to approve Horizon Blue Cross Blue Shield of New Jersey's (Horizon's) application to establish the OMNIA Health Alliance (OMNIA) network. OMNIA is a health benefits plan that contains a two-tiered network of hospitals and physicians under which a member's costs are lower if the member elects to use a Tier 1 provider. Horizon designated appellants as Tier 2 hospitals under the OMNIA tiered plan. 

We conclude that the OMNIA plan met the Department's network adequacy requirements by ensuring that there was at least one hospital in each county or service area that was within twenty miles or thirty minutes, whichever is less, from 90% of the covered subscribers in the plan. Although OMNIA did not initially provide sufficient coverage in Burlington County for obstetrical services, it made arrangements with a Tier 2 hospital in that county to provide these services at Tier 1 rates. We held that this arrangement satisfied the Department's network adequacy requirements. 

We also rejected appellants' contention that the Department's approval of the OMNIA plan was contrary to the public interest. After reviewing the governing statutes, we concluded that the Legislature did not specifically require the Department to make a specific finding that the approval of any tiered network plan "was in the public interest." In any event, we ruled that the Department's approval of an application that met all of existing regulatory requirements plainly served the public interest. We also noted that there is no statutory or regulatory procedure for the Department to determine the financial impact of the tier designation on a hospital. 

Finally, we determined there is no provision in the existing statutes or regulations requiring that an insurance carrier publicly disclose the criteria it used to evaluate the hospitals for inclusion in, or exclusion from, a particular tier. We also found that appellants did not have a right to a hearing contesting Horizon's application for approval of the OMNIA network. 

AIT GLOBAL INC. VS. PANKAJ YADAV A-2847-14T4

AIT GLOBAL INC. VS. PANKAJ YADAV 

A-2847-14T4 

Plaintiff, a temporary help service firm (THSF) appealed a judgment in favor of its former employee after it attempted to enforce early termination and restrictive covenant provisions 

pursuant to an employment agreement. The sole question on appeal is whether plaintiff is required to be licensed as an employment agency pursuant to the Private Employment Agency Act (the Act), N.J.S.A. 34:8-43 to -66, in order to enforce an employment agreement with defendant. We conclude that registration, rather than licensing, is required for a THSF to enforce an employment agreement pursuant to the Act. We reverse and remand. 

STATE OF NEW JERSEY VS. ALFRED W. COURSEY, III A-1415-14T1

STATE OF NEW JERSEY VS. ALFRED W. COURSEY, III 

A-1415-14T1 

Pre-trial Intervention Guideline 3(i), which creates a presumption against admission to Pre-Trial Intervention for defendants charged with certain offenses, does not apply to third-degree or fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(11), -5(b)(12). The prosecutor's rejection of defendant's PTI application based on a misapplication of Guideline 3(i) was a gross and patent abuse of discretion, requiring a remand to the prosecutor for reconsideration ab initio of defendant's PTI application. 

NEW JERSEY DIVISION OF CHILD P IN THE MATTER OF N.A.T. AND J.V.ROTECTION AND PERMANENCY VS. N.T. AND A.K. AND J.A.V. A-1008-14T4

NEW JERSEY DIVISION OF CHILD P IN THE MATTER OF N.A.T. AND J.V.ROTECTION AND PERMANENCY VS. N.T. AND A.K. AND J.A.V. 

A-1008-14T4 

The Division of Child Protection and Permanency obtained a finding of abuse or neglect based primarily on hearsay evidence in a Division report and a Division consultant's psychological evaluation. The Appellate Division holds that, to be admissible as a business record of the Division, a Division report must meet the requirements of N.J.R.E. 803(c)(6), whether the report is offered under N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), or In re Guardianship of Cope, 106 N.J. Super. 336 (App. Div. 1969). If a Division report is admissible under N.J.R.E. 803(c)(6) and meets the requirements of N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), or Cope, the court may consider the statements in the report that were made to the author by Division staff personnel, or affiliated medical, psychiatric, or psychological consultants, if those statements were made based on their own first-hand factual observations, at a time reasonably contemporaneous to the facts they relate, and in the usual course of their duties with the Division. However, whether the Division report is offered under N.J.R.E. 803(c)(6), N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), or Cope, statements in the report made by any other person are inadmissible hearsay, unless 

they qualify under another hearsay exception as required by N.J.R.E. 805. Expert diagnoses and opinions in a Division report are inadmissible hearsay, unless the trial court specifically finds they are trustworthy under the criteria in N.J.R.E. 808, including that they are not too complex for admission without the expert testifying subject to cross-examination. 

In judging the sufficiency of the evidence, a reviewing court must consider all the evidence admitted by the trial court. 

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, ET AL V. ROCHELLE HENDRICKS ET AL. A-4399-13T2

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, ET AL V. ROCHELLE HENDRICKS ET AL. 

A-4399-13T2 

Appellants challenge the Department of Higher Education's awards of capital improvement grants to two sectarian institutions of higher education, consisting of over $10 million to Beth Medrash Govoha, and $645,323 to Princeton Theological Seminary. Appellants contend these grants violate Article I, Paragraph 3 of the New Jersey Constitution because the recipients will use the funds substantially to support religious instruction and the preparation of future candidates for ministry in the Jewish and Christian faiths. 

In Resnick v. East Brunswick Township Board of Education, 77 N.J. 88 (1978), the Supreme Court construed Article I, Paragraph 3 to bar public schools from allowing religious organizations to use school facilities in the evenings and on weekends for religious instruction unless the users fully reimbursed the public for the costs of providing that access. Applying that binding precedent disallowing such a taxpayer-funded subsidy, we conclude that Resnick compels the invalidation of the Department's grants to these two sectarian institutions. 

We acknowledge that the legislative history reflects that the intended meaning of Article I, Paragraph 3 – a provision included in our State's first Constitution in 1776 and readopted in the 1844 and 1947 Constitutions – is not entirely clear. As an intermediate appellate court, however, we defer to the Supreme Court to assess if it so chooses whether the reasonably debatable lineage of the constitutional provision warrants any reexamination or modification of Resnick. 

STATE OF NEW JERSEY VS. JONATHAN ZEMBRESKI A-0632-14T3

STATE OF NEW JERSEY VS. JONATHAN ZEMBRESKI 

A-0632-14T3 

Defendant appealed from his convictions for committing robbery, burglary, and impersonating a law enforcement officer. Defendant's victim was a guest at a hotel and a gambling patron at its casino. The evidence presented was that defendant followed his victim to his room and gained access by claiming to be an FBI agent. Once inside, defendant threatened to prosecute the victim, demanded that he give defendant money, and slammed the door to the room on the victim's hand when he tried to escape, injuring him in the process. 

In this case of first impression, we affirm defendant's convictions, holding that defendant committed an act of burglary, N.J.S.A. 2C:18-2, by gaining access to his victim's residence by deception for the purpose of committing a crime. 

State v. David Bueso (A-15-14

State v. David Bueso (A-15-14; 074261) 

When the witness is a child, the concepts of truth, falsehood, and punishment may be difficult to reach with open-ended questions. Subject to the discretion of the trial judge, who must carefully monitor the 

examination to ensure that the child’s answers are his or her own, leading questions may be used in a competency inquiry. There was no plain error in the procedure used by the trial court in this case. 

State v. J.M., Jr. (A-48-14;

State v. J.M., Jr. (A-48-14; 075317) 

The evidence of defendant’s prior sexual assault in Florida is inadmissible under N.J.R.E. 404(b) because it fails to satisfy the four-factor test established in State v. Cofield, 127 N.J. 328 (1992). The Court declines to adopt the appellate panel’s bright-line rule that evidence of a prior crime for which a defendant was acquitted is always inadmissible. The Court also declines the appellate panel’s reformulation of the instruction provided to jurors governing the circumstances under which a jury may give any weight to acquitted-crime evidence. 

State v. Bobby Perry a/k/a Bobby Penny (A-34-14;

State v. Bobby Perry a/k/a Bobby Penny 

(A-34-14; 075114) 

The semen found on the victim’s clothing constitutes inadmissible evidence of sexual conduct under the Rape Shield Law, and was not relevant to defendant’s defense of third-party guilt. Any probative value of the evidence is substantially outweighed by its prejudicial effect. 

State v. James Denelsbeck (A-42-14;

State v. James 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. 

Seminar: Remove & Expungement of Criminal Arrests and Convictions-Free Seminar June 8, 2016 from 5:00pm-5:45

 Location: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

        COST: Free if you pre-register. Complimentary materials provided. This program is limited to 15 people. Please bring a canned food donation, which will be given to the Community Food Bank. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.

                 (Author- Criminal Law Forms by the American Bar Association)

  The NJ statute on expungement was revised effective April 18, 2016.  If someone has been arrested or even had a private criminal complaint signed against them in the Municipal Court, they have a criminal record, even if the charges were dismissed or received a Conditional Discharge Under NJ Law past criminal arrests and convictions can be expunged/ erased under certain instances. This program will discuss the expungement process. I served as a Municipal Prosecutor and was amazed how minor criminal guilty pleas and even dismissed charges can affect someone’s ability to get a job or advance a career. Do you have children or someone you know or work with that needs an expungement?

   To attend email VercammenLaw@Njlaws.com

Can’t attend?  We can email you materials

Send email to VercammenLaw@Njlaws.com

http://www.njlaws.com/expungment-seminar.htm

More info: The Petition for expungement is filed in the Superior Court. It takes a minimum of three months for the court to grant the expungement. The requirements are very formal. There can be a waiting period between 6 months up to 10 years after the criminal case is finished. For someone who had a drug charge, they can hire an attorney apply for Expungement 6 months after the Conditional Discharge is complete. The statute requires detailed notices served by the attorney on the State Police, Attorney General and numerous other government entities.

         Typical Court costs and Legal fees for expungement range from $1,500-$2,500.

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 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 4^th degree black belt.

KENNETH VERCAMMEN

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500