Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
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Sunday, March 22, 2020

In the Matter of Registrant H.D.; In the Matter of Registrant J.M. (082254)(Essex County, Salem County & Statewide) (A-73/74-18; 082739)

Under the plain language of subsection (f), the fifteen-year period during which an eligible registrant must remain offense-free to qualify for registration relief commences upon his or her conviction or release from confinement for the sex offense that gave rise to his or her registration requirement.

State v. Orlando Trinidad A-65-18

The trial court erred by admitting both prejudicial testimony and, separately, lay opinion testimony as to defendant’s guilt. Yet, the evidence against Trinidad was overwhelming, and any error was therefore harmless. There was no error in the sentencing of defendant or the denial of his motion for a judgment of acquittal.

Monday, March 16, 2020


The court addressed two issues of first impression in New Jersey: (1) whether the swabbing of a defendant's hands for gunshot residue (GSR) constitutes a search under applicable constitutional doctrines, and if so, (2) whether such a search is valid under the search incident to arrest exception to the warrant requirement. The court held that the swabbing of a defendant's hands for GSR is a search under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution because it intruded upon a reasonable expectation of privacy. Balancing the intrusion of GSR testing on an individual's privacy against promoting vital governmental interests, the court further concluded that if an individual is lawfully arrested and in police custody, a delayed search of the arrestee's person for GSR evidence after the arrestee is transported to police headquarters is constitutionally permissible under the search incident to arrest exception as long as the delay itself and the scope of the search are objectively reasonable. In this case, given the existence of probable cause, the timeline, location, and limited intrusion involved in the testing, as well as the ready destructibility of GSR evidence, the court was satisfied that the search was objectively reasonable in time and scope to pass constitutional muster. Accordingly, the court reversed the Law Division's order suppressing the GSR evidence and remanded for further proceedings.


A jury found defendant Kyle P. Brown guilty of third-degree arson, N.J.S.A. 2C:17-1(b), and second-degree causing or risking widespread injury or damage, N.J.S.A. 2C:17-2(a)(1), as a result of setting fire to, and causing an explosion of, his parked car in a sparsely-filled parking lot adjacent to his apartment building in the early morning hours.
The court holds the trial judge did not err in denying defendant's motion for acquittal of third-degree arson and second-degree causing or risking widespread injury or damage because there was sufficient evidence to establish that he caused a fire and explosion as set forth in N.J.S.A. 2C:17-1(b), and an explosion as set forth in N.J.S.A. 2C:17-2(a)(1).
In the unpublished portion of this opinion, the court affirms the trial judge's ruling on all other issues.

Sunday, March 08, 2020


In February 2017, defendant was charged with the crime of possession with intent to distribute marijuana in a quantity greater than twenty-five pounds and was released on home arrest with electronic monitoring (PML3+EM). On December 17, 2018, defendant entered a guilty plea to count one of the indictment, as amended to a second-degree offense. In consideration for the guilty plea, the State agreed to recommend a maximum sentence of a five-year state prison term. Defendant requested an extended sentencing date to “put his life in order” before commencing the custodial term. The court set April 5, 2019, as the sentence date and, in its discretion, continued defendant on pretrial release.
Defendant retained new counsel and on June 10, 2019, present counsel for defendant filed a motion to withdraw the guilty plea, requesting that the sentence be adjourned and that he continue free on pretrial release, pending the return of the motion. Defendant argued that pursuant to the Criminal Justice Reform Act (CJR), N.J.S.A. 2A:162-15 to -26, he was entitled to remain on release until sentencing or the resolution of the motion to vacate the plea. The court denied the request to remain free, holding that CJR did not vest defendant with any substantive or procedural grounds to remain free on pretrial release after entering a plea of guilty. Instead, in its discretion, the court remanded defendant pending same.
The matter presents the novel issue as to whether a defendant is entitled to continue pretrial release pursuant to CJR.


Defendant argued that unused prior service credits could be applied to reduce the period of mandatory parole supervision imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court held that prior service credits could not be applied to reduce the period of parole supervision required under NERA.

State v. Jerome Shaw, Jr. A-59-18

Thursday, March 05, 2020

Roadside statements inadmissible were improper roadside stop State v. Alessi,

Roadside statements inadmissible were improper roadside stop 
State v. Alessi,
 (A-41/42-17)   Decided January 27, 2020 
TIMPONE, J., writing for the Court.
The Court considers whether the police may pull over a driver for questioning in furtherance of an investigation without reasonable suspicion that she committed a crime or traffic violation. 
In 2011, defendant Donna Alessi began dating Philip Izzo, a construction official for Raritan Township who supervised the construction staff, including Mark Fornaciari. Fornaciari filed a whistleblower claim, naming Izzo as a defendant. In preparing his defense, Izzo took Fornaciari’s personnel file and stored it in his truck. In 2013, the relationship between defendant and Izzo ended. One night in June 2013, Izzo went to a bar in Hillsborough Township. Defendant saw Izzo, went to the parking lot, entered his truck, and removed some of her personal items as well as the personnel file, which she mailed to Fornaciari. The package wound up at the construction office because of an issue with the address, and the police were called. They determined through post office surveillance footage that defendant had mailed the package. 
Detective Benedict Donaruma made several attempts to contact defendant: he called and left voicemails, and he left his business card in her door. On another day, he knocked at defendant’s door and, seeing a woman in her home, called out to her. He later testified that all of these methods of initiating contact generally lead to responses. On the day when Donaruma saw the woman in defendant’s home, he waited to see if she would leave. After a couple of minutes, he spotted defendant’s vehicle on a local road. Though Donaruma did not observe her commit a traffic violation, he pulled behind her in his marked patrol car and activated the overhead lights. When defendant stopped, he approached her car and said he wanted to discuss his investigation. Over the course of the questioning, Donaruma informed defendant multiple times that she was free to leave. 
According to Donaruma, defendant initially denied involvement but then admitted she sent the package at the behest of her then-boyfriend Izzo in an effort to get Fornaciari and another person in trouble with the Township. Defendant conceded she and Izzo drafted the letter enclosed in the package together, and she intentionally listed the wrong return address so the package would end up with the Township. 

Police arrested Izzo on charges of official misconduct and misapplication of entrusted property. Upon arrest, Izzo gave a statement claiming the personnel file had been stolen out of his truck at the bar. Defendant later gave another statement in the presence of her attorney, which was later played at her trial. In it, defendant indicated that, by the time she mailed the package, she was no longer dating Izzo. She asserted she had permission to enter Izzo’s truck and remove her personal effects, and that she accidentally grabbed the personnel file. Upon realizing her mistake, she decided to send it back to Fornaciari to spite Izzo and help with the lawsuit. 
Defendant was arrested and charged with false reporting, hindering apprehension, and burglary. She moved to suppress her roadside statement based on a violation of the Fifth Amendment. The court denied her motion and admitted the statement at trial. A jury found defendant guilty on all three counts. 
The Appellate Division reversed her convictions, holding that the roadside stop was unconstitutional. Following a motion for reconsideration, the Appellate Division changed course as to the burglary conviction, determining that there was clear evidence that defendant entered Izzo’s truck without permission and removed the personnel file. 
Both sides sought certification. The Court granted defendant’s petition, “limited to the issue of whether the burglary conviction also should have been reversed due to the admission of defendant’s incriminating roadside statement, which influenced the jury’s determination as to defendant’s credibility.” 232 N.J. 289 (2018). The Court also granted the State’s cross-petition in full. 232 N.J. 293 (2018). Following oral argument, the Court retained jurisdiction but remanded the case, directing the trial “court to make a record and findings of fact and law on whether the officer’s stop of defendant’s vehicle was constitutional.” ___ N.J.___ (2018). The judge concluded that “the stop and resultant seizure [were] unconstitutional.” 
HELD: The circumstances of this case do not legitimize the stop. Law enforcement must have reasonable and articulable suspicion of a traffic violation, the commission of a crime, or unlawful activity before executing a traffic stop. Accordingly, the roadside statement given by defendant during the unlawful stop should have been excluded at trial, and the Court affirms the Appellate Division’s reversal of her convictions for hindering apprehension and false reporting. Because defendant’s roadside statement permeated the trial, severely affecting her credibility and ability to mount a defense to the separate burglary charge, that conviction is reversed as well. 
1. Courts evaluate the totality of the circumstances to determine whether an officer had a reasonable suspicion that justified an investigatory stop. The Court reviews cases in which it has determined the constitutionality of a stop where the officer’s suspicion was not based on an observed traffic violation and notes that those decisions reveal a highly fact-intensive inquiry. 
2. Based solely on the knowledge available to Donaruma at the time he pulled defendant over, he could not have reasonably suspected defendant participated in a crime. Donaruma testified on remand that defendant was not the target of his investigation or even a suspect at the time he stopped her. Donaruma stopped defendant to develop his investigation into Izzo. From an objective perspective, defendant’s actions on the post office surveillance footage were not reasonably more consistent with guilt than innocence. That defendant did not respond to the officers’ calls or visits does not alter that conclusion; as the trial judge noted, there was no testimony that Donaruma became suspicious due to defendant’s elusive behavior. A law enforcement officer cannot use an automobile stop merely for the purpose of a police interview and without observing a traffic violation or having a reasonable suspicion of other criminal activity. Because the stop in this case was unconstitutional, the Court does not address defendant’s additional argument that the scope of the stop was unreasonable.   
3. Courts will not exclude evidence sufficiently attenuated from the taint of an unconstitutional stop. The Court reviews the three factors in an attenuation analysis and determines defendant’s statement to Donaruma was not so attenuated from the initial stop as to avoid application of the exclusionary rule. Without that statement, defendant’s convictions for false reporting and hindering apprehension cannot stand. 
4. Finally, the Court reviews the application of defendant’s roadside statement to her burglary charge. Defendant’s guilt hinged on whether she had permission to enter Izzo’s truck. If the jury believed defendant’s version of events over Izzo’s, then it would not have found defendant guilty of burglary. Yet, this was unlikely in light of the State’s exploitation of contradictions between defendant’s roadside statement and the statement she gave later, with counsel present. Additional facts in the record support defendant’s claim that she had permission to enter the truck, and Izzo had his own credibility issues. Had the trial court initially excluded defendant’s roadside statement, defendant’s credibility would have remained intact because the State would never have had the opportunity to highlight the falsehoods she told Donaruma. The admission of the roadside statement was “clearly capable of producing an unjust result,” R. 2:10-2, because there is reasonable doubt as to whether the jury would have found defendant guilty of burglary in its absence. The Court does not pass judgment on the merits of whether defendant burgled Izzo’s truck. 
The judgment of the Appellate Division reversing defendant’s convictions of hindering apprehension and false reporting is AFFIRMED, defendant’s conviction for burglary is REVERSED, and the matter is REMANDED. 

Sunday, March 01, 2020

STATE OF NEW JERSEY VS. TEVIN M. FIGARO STATE OF NEW JERSEY VS. ANTHONY J. GREEN STATE OF NEW JERSEY VS. ABE HAROLD (17-05-0465, 17-10-0945, 17-10-0961, 19-03-0275, 19-04-0318, AND 16-09-0824, CUMBERLAND COUNTY AND STATEWIDE) (CONSOLIDATED) (A-5654-18T4/A-0854-19T4/A-1287-19T4)

The court granted defendants leave to appeal from orders that denied their request to declare they were not statutorily ineligible for Drug Court and to process their applications. The judge accepted that recent revisions to the Drug Court Manual (the 2019 Manual ) preserved two "tracks" for entry into the program: one, pursuant to special probation, N.J.S.A. 2C:35-14; and a second, as a general condition of probation, N.J.S.A. 2C:45-1. See, e.g., State v. Meyer, 192 N.J. 421 (2007).
Defendants were not eligible for special probation, because they faced current charges that were not "subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility[.]" N.J.S.A. 2C:35-14(a). Additionally, defendants were previously convicted of crimes that made them ineligible pursuant to N.J.S.A. 2C:35-14(a)(6), (7). The judge accepted the State's argument that although there were two tracks for entry into Drug Court, the 2019 Manual created one uniform standard for eligibility under both tracks, specifically, that an applicant was legally ineligible if he failed to meet the criteria in N.J.S.A. 2C:35-14.
The Court reversed, concluding that the full text of the 2019 Manual did not support the State's interpretation, which was contrary to the clear intention, both legislatively and administratively, to broaden eligibility for Drug Court.


Defendant appealed from a judgment of conviction after a jury convicted him of murder, arguing he was denied the right to a jury of his peers
During the voir dire, after an African American male juror was found acceptable to the court and seated in the jury box, the prosecutor performed acriminal background check on the juror and discovered someone with the same name had an outstanding municipal warrant. Without explanation to or from the juror, the trial judge granted the State's motion to remove the juror for cause so he could be arrested outside the presence of other jurors. Defendant argued the exclusion of the juror was racially motivated
The court reverses because the judge did not question the juror himself to ascertain the accuracy of the State's representation and the judge should have addressed defendant's objection under a Batson/Gilmore analysis.


Defendant Frank Campione, a licensed physician assistant, who was federally registered to prescribe opioid medications, was indicted on charges of the unlawful practice of medicine, distribution of a controlled dangerous substance to patients, and possession of prohibited weapons. The State alleged that Campione misrepresented himself as a physician to patients, improperly wrote prescriptions in non-traditional settings, such as vehicles and restaurants, and wrote prescriptions for opioid medications that were not medically necessary. Defendant Howard Katz, a licensed physician who agreed to serve as Campione's supervising physician, was charged with unlawful practice of medicine.
Defendants' motion to dismiss the entire indictment was granted by the motion court. The motion court also granted defendants' motion for discovery of the identity, opinions, and reports of the experts consulted by the State post-dismissal of the indictment.
The court affirmed the dismissal of all charges against Katz. The State presented no evidence to the grand jury that Katz participated in Campione's alleged acts of improperly holding himself out as a physician to patients.
The court also affirmed the dismissal of the counts alleging the unlawful practice of medicine based on Campione's alleged failure to practice under the direct supervision of a physician and failure to provide notice of his employment to the State Board of Medical Examiners. Such conduct involves professional misconduct punishable by civil penalties, not criminal acts.
Similarly, the court affirmed the dismissal of the count charging defendants with conspiring to commit the unlawful practice of medicine. Because Campione was a licensed physician assistant who was registered to prescribe opioid medications and Katz was a licensed physician, violating the Physician Assistant Licensing Act (PALA), N.J.S.A. 45:9-27.10 to .28, is professional misconduct punishable by civil penalties, not criminal conduct under our Criminal Code. Thus, conspiring to violate PALA is not a crime
The court reversed the dismissal of the weapons counts because the State was not precluded from introducing evidence of the possession of the prohibited weapons in a subsequent grand jury proceeding that was not introduced during the first presentment.
The court also reversed the order compelling the State to provide postdismissal discovery of the State's experts. Because the indictment was dismissed in its entirety, the criminal action was no longer pending.Accordingly, the discovery afforded under Rule 3:13-3(b)(1) does not apply even though defendant Campione still faced a civil forfeiture action and administrative disciplinary proceedings brought by the Board of Medical Examiners.

STATE v BELLAMY (A-2959-17T4)

Defendant, while incarcerated for a parole violation, was arrested for a homicide he committed while on parole. After defendant completed his parole violation sentence, he remained in jail awaiting resolution of the homicide charges. He thereafter entered a guilty plea to the homicide charges. At sentencing, the trial court, following the holding in State v. Black, 153 N.J. 438 (1998), awarded defendant eighty-six days of jail credits for the period from the day he completed his parole violation sentence to the day of sentencing.
Defendant acknowledged that if Black applies, the trial court awarded the correct number of jail credits. He argued, however, that the holding in Black was effectively overruled by the Court in State v. Hernandez, 208 N.J. 24 (2011), and as a result, he is entitled to 1149 days of jail credits for the period from the day he was arrested on the homicide charge to the day of sentencing.
The court rejected defendant's argument, noting that Hernandez concerns circumstances unlike those in Black and that in Hernandez, the Court discussed its holding in Black at length without stating it was departing from that holding. In addition, the court reviewed a number of precedents cited by defendant applying the holding in Hernandez but found all inapposite to the circumstances addressed in Black. In the absence of a Supreme Court decision overruling its prior decision, the court declined to stray from the unequivocal holding in Black and affirmed the award of jail credits.


The court considered whether the omission of one of the Miranda warnings during custodial interrogation adequately conveys the substance of the warnings and concluded it did not, notwithstanding the fact that defendant continuously interrupted the administration of the warnings. Acknowledging out-of-state authority holding that a suspect may waive Miranda warnings by interrupting their delivery, the court concluded that the suspect's interruption of the warnings does not discharge law enforcement of their duty to deliver them. Finding that the erroneous introduction of the partially unwarned statements was not harmless error, the court reversed defendant's conviction, which followed a bifurcated jury trial, and vacated his guilty plea on the weapons offense. Relying on United States v. Patane, 542 U.S. 630 (2004), however, the court rejected defendant's contention that suppression of the weapon was mandated as a remedy for the Miranda violation despite the fact that the weapon was seized as a result of a search warrant based on the statements.