02-26-08 A-2377-05T4
In this appeal, the court reversed the denial of
defendant's petition for post-conviction relief, finding
defendant was denied the effective assistance counsel because:
(1) trial counsel failed to fully elicit testimony regarding
defendant's alleged alibi; (2) appellate counsel failed to
pursue on direct appeal the trial judge's refusal to give the
jury an alibi instruction; (3) trial counsel failed to object
and appellate counsel failed to argue on appeal that the
prosecutor's argument in his opening statement -- that the
jurors were safe from defendant and others in the courtroom only
because of the presence of sheriff's officers -- was prejudicial
to his right to a fair trial; and (4) the confluence of these
omissions, in the context of other circumstances, such as the
testimony of witnesses in handcuffs and prison garb, generated a
reasonable doubt about the reliability of the outcome.
Sunday, March 30, 2008
State of New Jersey in the Interest of D.Y.
02-04-08 A-0490-07T4
The prosecutor filed a complaint in the Family Part
charging a juvenile with aggravated assault that led to the
victim's death. More than 30 days later, after further
investigation indicated that the juvenile had far greater
responsibility for the death, the prosecutor dismissed the first
complaint and filed a second complaint charging murder. Within
30 days of the second filing, the prosecutor moved for waiver of
the murder complaint to the Law Division, where the juvenile
would be tried as an adult. We reversed the denial of the
prosecutor's motion, holding: (1) the motion was timely because
the 30 time limit of N.J.S.A. 2A:4A-26(d) and Rule 5:22-2(a) did
not begin to run on the murder complaint until it was filed; (2)
the development of the additional incriminatory evidence after
the filing of the first complaint provided good cause for an
extension of the 30-day time limit even if that time began to
run from the filing of the first complaint.
The prosecutor filed a complaint in the Family Part
charging a juvenile with aggravated assault that led to the
victim's death. More than 30 days later, after further
investigation indicated that the juvenile had far greater
responsibility for the death, the prosecutor dismissed the first
complaint and filed a second complaint charging murder. Within
30 days of the second filing, the prosecutor moved for waiver of
the murder complaint to the Law Division, where the juvenile
would be tried as an adult. We reversed the denial of the
prosecutor's motion, holding: (1) the motion was timely because
the 30 time limit of N.J.S.A. 2A:4A-26(d) and Rule 5:22-2(a) did
not begin to run on the murder complaint until it was filed; (2)
the development of the additional incriminatory evidence after
the filing of the first complaint provided good cause for an
extension of the 30-day time limit even if that time began to
run from the filing of the first complaint.
State v. Adams
3-26-08 (A-103-06)
On this record, the Court declines to reevaluate the standards
for the admissibility of out-of-court identifications. Under
current standards, there was sufficient credible evidence to
affirm the trial court’s decision to admit the identification
testimony. It was not plain error for the trial court to fail
to give a cautionary charge on the use of Harrison’s testimony
and guilty plea. Finally, defendants’ presumptive sentences,
imposed prior to State v. Natale, do not require remands.
On this record, the Court declines to reevaluate the standards
for the admissibility of out-of-court identifications. Under
current standards, there was sufficient credible evidence to
affirm the trial court’s decision to admit the identification
testimony. It was not plain error for the trial court to fail
to give a cautionary charge on the use of Harrison’s testimony
and guilty plea. Finally, defendants’ presumptive sentences,
imposed prior to State v. Natale, do not require remands.
State v. Jane H. Chun
3-17-08 (A-96-06)
The Court adopts, as modified, the Special Master’s reports and
recommendations. Subject to certain conditions, the Court holds
that the Alcotest is scientifically reliable and that its
results are admissible in drunk driving prosecutions. The Court
contemporaneously issues an Order vacating its January 10, 2006,
stay of drunk driving prosecutions, appeals, and sentencing,
which shall proceed in accordance with the directives set forth
therein.
The Court adopts, as modified, the Special Master’s reports and
recommendations. Subject to certain conditions, the Court holds
that the Alcotest is scientifically reliable and that its
results are admissible in drunk driving prosecutions. The Court
contemporaneously issues an Order vacating its January 10, 2006,
stay of drunk driving prosecutions, appeals, and sentencing,
which shall proceed in accordance with the directives set forth
therein.
State v. Andre Johnson
2-26-08 (A-81-06)
Defendant has standing under state law to challenge the
warrantless search of the duffel bag in the home in which he was
present, and the fruits of the search are suppressed for failure
to comply with the warrant requirements of Article I, Paragraph
7 of the New Jersey Constitution.
Defendant has standing under state law to challenge the
warrantless search of the duffel bag in the home in which he was
present, and the fruits of the search are suppressed for failure
to comply with the warrant requirements of Article I, Paragraph
7 of the New Jersey Constitution.
State v. Charles A. Watkins, III
2-21-08 (A-118-06)
Individuals acting alone in furtherance of their own criminal
interests who commit a series of offenses such as thefts or
forgeries are not “part of a continuing business or enterprise”
because they are not part of a larger whole and are not acting
in concert with others.
Individuals acting alone in furtherance of their own criminal
interests who commit a series of offenses such as thefts or
forgeries are not “part of a continuing business or enterprise”
because they are not part of a larger whole and are not acting
in concert with others.
State v. Sulaiman A. Sloane
2-11-08 (A-40-06)
During a motor vehicle stop, the passenger, like the driver, is
seized under the federal and state constitutions. Police do not
need a reasonable suspicion before they may access the NCIC
database and, because accessing the NCIC database was within the
scope of the traffic stop and did not unreasonably prolong the
stop, there was no basis to suppress the evidence found.
During a motor vehicle stop, the passenger, like the driver, is
seized under the federal and state constitutions. Police do not
need a reasonable suspicion before they may access the NCIC
database and, because accessing the NCIC database was within the
scope of the traffic stop and did not unreasonably prolong the
stop, there was no basis to suppress the evidence found.
State v. David L. Wilder
1-31-08(A-87-06)
Based on the State’s evidence and giving the State the benefit
of all favorable inferences, a jury reasonably could have
convicted defendant of serious-bodily-injury murder; thus, the
trial court did not err by sending the murder charge to the
jury. The Court rejects continued use of the Christener rule;
overcharging errors must be reviewed under the “unjust result”
standard established in Rule 2:10-2.
Based on the State’s evidence and giving the State the benefit
of all favorable inferences, a jury reasonably could have
convicted defendant of serious-bodily-injury murder; thus, the
trial court did not err by sending the murder charge to the
jury. The Court rejects continued use of the Christener rule;
overcharging errors must be reviewed under the “unjust result”
standard established in Rule 2:10-2.
State v. William J. Allegro
1-29-08 (A-119-06)
Allegro’s ineffective assistance of counsel claims arising from
defense counsel’s failure to investigate potential witnesses and
to call those witnesses do not satisfy the two-pronged
Strickland/Fritz standard. His claims in respect of counsel’s
ineffectiveness in the plea discussions and negotiations
requires a remand for development of a more comprehensive record
and the PCR court’s conclusions based on that record.
1-28-08 State v. George Jenewicz (A-78-06)
The cumulative impact of the trial court’s preclusion of
testimony from two defense witnesses and the prosecution’s
improper cross-examination of the defense expert and
disparagement of the defense expert during summation prejudiced
the fairness of defendant’s trial and cast doubt on the
propriety of the jury’s verdict, warranting a new trial.
Allegro’s ineffective assistance of counsel claims arising from
defense counsel’s failure to investigate potential witnesses and
to call those witnesses do not satisfy the two-pronged
Strickland/Fritz standard. His claims in respect of counsel’s
ineffectiveness in the plea discussions and negotiations
requires a remand for development of a more comprehensive record
and the PCR court’s conclusions based on that record.
1-28-08 State v. George Jenewicz (A-78-06)
The cumulative impact of the trial court’s preclusion of
testimony from two defense witnesses and the prosecution’s
improper cross-examination of the defense expert and
disparagement of the defense expert during summation prejudiced
the fairness of defendant’s trial and cast doubt on the
propriety of the jury’s verdict, warranting a new trial.
Wednesday, March 12, 2008
Criminal Mischief
Kenneth Vercammen is the Middlesex County Bar Municipal Court Attorney of the Year
Criminal Mischief 2C:17-3
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
Criminal Mischief 2C:17-3. a. Offense defined. A person is guilty of criminal mischief if he:
(1)Purposely or knowingly damages tangible property of another or damages tangible property of another recklessly or negligently in the employment of fire, explosives or other dangerous means listed in subsection a. of N.J.S. 2C:17-2; or
(2)Purposely, knowingly or recklessly tampers with tangible property of another so as to endanger person or property.
b. Grading. (1) Criminal mischief is a crime of the third degree if the actor purposely or knowingly causes pecuniary loss of $2,000.00 or more, or a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service.
(2)Criminal mischief is a crime of the fourth degree if the actor causes pecuniary loss in excess of $500.00. It is a disorderly persons offense if the actor causes pecuniary loss of $500.00 or less.
(3)Criminal mischief is a crime of the third degree if the actor damages, defaces, eradicates, alters, receives, releases or causes the loss of any research property used by the research facility, or otherwise causes physical disruption to the functioning of the research facility. The term "physical disruption" does not include any lawful activity that results from public, governmental, or research facility employee reaction to the disclosure of information about the research facility.
(4)Criminal mischief is a crime of the fourth degree if the actor damages, removes or impairs the operation of any device, including, but not limited to, a sign, signal, light or other equipment, which serves to regulate or ensure the safety of air traffic at any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however, if the damage, removal or impediment of the device recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.
(5)Criminal mischief is a crime of the fourth degree if the actor interferes or tampers with any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however if the interference or tampering with the airport, landing field, landing strip, heliport, helistop or other aviation facility recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.
(6)Criminal mischief is a crime of the third degree if the actor tampers with a grave, crypt, mausoleum or other site where human remains are stored or interred, with the purpose to desecrate, destroy or steal such human remains or any part thereof.
c. A person convicted of an offense of criminal mischief that involves an act of graffiti may, in addition to any other penalty imposed by the court, be required to pay to the owner of the damaged property monetary restitution in the amount of the pecuniary damage caused by the act of graffiti and to perform community service, which shall include removing the graffiti from the property, if appropriate. If community service is ordered, it shall be for either not less than 20 days or not less than the number of days necessary to remove the graffiti from the property.
d. As used in this section:
(1)"Act of graffiti" means the drawing, painting or making of any mark or inscription on public or private real or personal property without the permission of the owner.
(2)"Spray paint" means any paint or pigmented substance that is in an aerosol or similar spray container.
Amended 1979, c.178, s.30; 1981, c.290, s.17; 1991, c.336, s.1, 1995, c.20, s.2; 1995, c.251, s.1; 1998, c.54, s.1; 1999, c.95, s.1.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.
The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.
Tracey Lewis
Assistant Editor
Criminal Mischief 2C:17-3
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
Criminal Mischief 2C:17-3. a. Offense defined. A person is guilty of criminal mischief if he:
(1)Purposely or knowingly damages tangible property of another or damages tangible property of another recklessly or negligently in the employment of fire, explosives or other dangerous means listed in subsection a. of N.J.S. 2C:17-2; or
(2)Purposely, knowingly or recklessly tampers with tangible property of another so as to endanger person or property.
b. Grading. (1) Criminal mischief is a crime of the third degree if the actor purposely or knowingly causes pecuniary loss of $2,000.00 or more, or a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service.
(2)Criminal mischief is a crime of the fourth degree if the actor causes pecuniary loss in excess of $500.00. It is a disorderly persons offense if the actor causes pecuniary loss of $500.00 or less.
(3)Criminal mischief is a crime of the third degree if the actor damages, defaces, eradicates, alters, receives, releases or causes the loss of any research property used by the research facility, or otherwise causes physical disruption to the functioning of the research facility. The term "physical disruption" does not include any lawful activity that results from public, governmental, or research facility employee reaction to the disclosure of information about the research facility.
(4)Criminal mischief is a crime of the fourth degree if the actor damages, removes or impairs the operation of any device, including, but not limited to, a sign, signal, light or other equipment, which serves to regulate or ensure the safety of air traffic at any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however, if the damage, removal or impediment of the device recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.
(5)Criminal mischief is a crime of the fourth degree if the actor interferes or tampers with any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however if the interference or tampering with the airport, landing field, landing strip, heliport, helistop or other aviation facility recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.
(6)Criminal mischief is a crime of the third degree if the actor tampers with a grave, crypt, mausoleum or other site where human remains are stored or interred, with the purpose to desecrate, destroy or steal such human remains or any part thereof.
c. A person convicted of an offense of criminal mischief that involves an act of graffiti may, in addition to any other penalty imposed by the court, be required to pay to the owner of the damaged property monetary restitution in the amount of the pecuniary damage caused by the act of graffiti and to perform community service, which shall include removing the graffiti from the property, if appropriate. If community service is ordered, it shall be for either not less than 20 days or not less than the number of days necessary to remove the graffiti from the property.
d. As used in this section:
(1)"Act of graffiti" means the drawing, painting or making of any mark or inscription on public or private real or personal property without the permission of the owner.
(2)"Spray paint" means any paint or pigmented substance that is in an aerosol or similar spray container.
Amended 1979, c.178, s.30; 1981, c.290, s.17; 1991, c.336, s.1, 1995, c.20, s.2; 1995, c.251, s.1; 1998, c.54, s.1; 1999, c.95, s.1.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.
The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.
Tracey Lewis
Assistant Editor
Criminal Attempt
Middlesex County Bar Municipal Court Attorney of the Year
2C:5-1 Criminal attempt
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
2C:5-1. Criminal attempt a. Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;
(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
b. Conduct which may be held substantial step under subsection a. (3). Conduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose.
c. Conduct designed to aid another in commission of a crime. A person who engages in conduct designed to aid another to commit a crime which would establish his complicity under section 2C:2-6 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.
d. Renunciation of criminal purpose. When the actor's conduct would otherwise constitute an attempt under subsection a. (2) or (3) of this section, it is an affirmative defense which he must prove by a preponderance of the evidence that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.
Within the meaning of this chapter, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. Renunciation is also not complete if mere abandonment is insufficient to accomplish avoidance of the offense in which case the defendant must have taken further and affirmative steps that prevented the commission thereof.
L.1978, c. 95, s. 2C:5-1, eff. Sept. 1, 1979.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.
The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.
Tracey Lewis
Assistant Editor
2C:5-1 Criminal attempt
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
2C:5-1. Criminal attempt a. Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;
(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
b. Conduct which may be held substantial step under subsection a. (3). Conduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose.
c. Conduct designed to aid another in commission of a crime. A person who engages in conduct designed to aid another to commit a crime which would establish his complicity under section 2C:2-6 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.
d. Renunciation of criminal purpose. When the actor's conduct would otherwise constitute an attempt under subsection a. (2) or (3) of this section, it is an affirmative defense which he must prove by a preponderance of the evidence that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.
Within the meaning of this chapter, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. Renunciation is also not complete if mere abandonment is insufficient to accomplish avoidance of the offense in which case the defendant must have taken further and affirmative steps that prevented the commission thereof.
L.1978, c. 95, s. 2C:5-1, eff. Sept. 1, 1979.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.
The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.
Tracey Lewis
Assistant Editor
Contempt 2C:29-9
Kenneth Vercammen is the Middlesex County Bar Municipal Court Attorney of the Year
2C:29-9. Contempt
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
Criminal charges can cost you. If convicted, you can face prison, fines, jail, Probation over 18 months and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal violations. Our website www.njlaws.com provides information on criminal offenses we can be retained to represent people.
2C:29-9. Contempt. a. A person is guilty of a crime of the fourth degree if he purposely or knowingly disobeys a judicial order or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a court, administrative body or investigative entity.
b. Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1991," P.L. 1991, c.261 (C. 2C:25-17 et al.) when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense. In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act. Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L. 1991, c.261 (C. 2C:25-29) shall be excluded from the provisions of this subsection.
CONCLUSION
If charged with any criminal offense, immediately schedule an appointment with a criminal trial attorney. Don't rely on a real estate attorney, public defender or a family member who took a law class in school. When your life and job is on the line, hire the best attorney available.
KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 TRIAL AND LITIGATION EXPERIENCE In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He appears in Courts throughout New Jersey several times each week on many personal injury matters, Criminal and Municipal/ traffic Court trials, Probate hearings, and contested administrative law hearings.
Mr. Vercammen served as the Prosecutor for the Township of Cranbury, Middlesex County and was involved in trials on a weekly basis. He also argued all pre-trial motions and post-trial applications on behalf of the State of New Jersey. He has also served as a Special Acting Prosecutor in Woodbridge, Perth Amboy, Hightstown, Carteret, East Brunswick, Jamesburg, South Brunswick, South River and South Plainfield for conflict cases. Since 1989, he has personally handled hundreds of criminal and motor vehicle matters as a Prosecutor and now as defense counsel and has had substantial success. Previously, Mr. Vercammen was Public Defender for the Township of Edison and Borough of Metuchen and a Designated Counsel for the Middlesex County Public Defender's Office. He represented indigent individuals facing consequences of magnitude. He was in Court trying cases and making motions in difficult criminal and DWI matters. Every case he personally handled and prepared. His resume sets forth the numerous bar associations and activities which demonstrate his commitment to the legal profession and providing quality representation to clients. Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court) with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Department as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.
The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.
Tracey Lewis
Assistant Editor
2C:29-9. Contempt
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
Criminal charges can cost you. If convicted, you can face prison, fines, jail, Probation over 18 months and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal violations. Our website www.njlaws.com provides information on criminal offenses we can be retained to represent people.
2C:29-9. Contempt. a. A person is guilty of a crime of the fourth degree if he purposely or knowingly disobeys a judicial order or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a court, administrative body or investigative entity.
b. Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1991," P.L. 1991, c.261 (C. 2C:25-17 et al.) when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense. In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act. Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L. 1991, c.261 (C. 2C:25-29) shall be excluded from the provisions of this subsection.
CONCLUSION
If charged with any criminal offense, immediately schedule an appointment with a criminal trial attorney. Don't rely on a real estate attorney, public defender or a family member who took a law class in school. When your life and job is on the line, hire the best attorney available.
KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 TRIAL AND LITIGATION EXPERIENCE In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He appears in Courts throughout New Jersey several times each week on many personal injury matters, Criminal and Municipal/ traffic Court trials, Probate hearings, and contested administrative law hearings.
Mr. Vercammen served as the Prosecutor for the Township of Cranbury, Middlesex County and was involved in trials on a weekly basis. He also argued all pre-trial motions and post-trial applications on behalf of the State of New Jersey. He has also served as a Special Acting Prosecutor in Woodbridge, Perth Amboy, Hightstown, Carteret, East Brunswick, Jamesburg, South Brunswick, South River and South Plainfield for conflict cases. Since 1989, he has personally handled hundreds of criminal and motor vehicle matters as a Prosecutor and now as defense counsel and has had substantial success. Previously, Mr. Vercammen was Public Defender for the Township of Edison and Borough of Metuchen and a Designated Counsel for the Middlesex County Public Defender's Office. He represented indigent individuals facing consequences of magnitude. He was in Court trying cases and making motions in difficult criminal and DWI matters. Every case he personally handled and prepared. His resume sets forth the numerous bar associations and activities which demonstrate his commitment to the legal profession and providing quality representation to clients. Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court) with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Department as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500
Receive free NJ Laws Email newsletter with current laws and cases
Telephone Consultation Program
New Article of the Week
Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.
The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.
Tracey Lewis
Assistant Editor
Saturday, March 01, 2008
Middlesex County Bar Association 3rd Annual Awards Dinner
Middlesex County Bar Association 3rd Annual Awards Dinner
On March 19, 2008, the Middlesex County Bar Association will hold its third annual awards dinner at Sunny Palace Restaurant on Route 18 South in East Brunswick. Awards will be given to bar members in the following areas: Pro Bono; Non-Litigation; Civil Trial Practice; Criminal Trial Practice; and Municipal Court Practice.
The guest speaker will be Hon. Travis L. Francis, AJSC.
The MCBA will pay tribute to these bar members for their significant contributions to their respective practice areas.
The following awards will be given:
-Pro Bono Attorney-of-the Year Henry Gurshman
-Civil Trial Practitioner-of-the-Year John Gorman
-Criminal Trial Attorney-of-the-Year Jim Nolan & Nicole Albert
-Municipal Court Practitioner-of-the-Year Kenneth Vercammen
-Young Lawyer of the Year Kimberly Yonta Aronow
-Transactional Attorney of the Year Michael Schaff
The purpose of the Awards is to recognize attorneys practicing in Middlesex County and adjacent municipalities who devote a significant portion of their law practice to their respective practice areas and exhibit one or more of the following:
- Leadership in the potential candidate’s field of practice;
- Significant, tangible contributions to the Bar, such as participation in educational panels, Bar committees, etc, pertaining to non-litigation issues;
- Contributions to the community and/or charitable endeavors;
- A record promoting participation and involvement in the MCBA and collegiality within the Association; and
- A reputation for personal and professional integrity.
The evening will commence with a cocktail hour (cash bar) at 6:00 p.m. and dinner will be served at 7:00 p.m. The cost to attend is $35 for MCBA Young Lawyers, $40 for MCBA Members and $45 for all others, in advance.
For additional information, contact the Bar Office at (732) 828-3433, ext. 102.
More details at http://www.mcbalaw.com/cde.cfm?event=186648
Sunny Palace
1069 Route 18 South
East Brunswick, NJ 08816
On March 19, 2008, the Middlesex County Bar Association will hold its third annual awards dinner at Sunny Palace Restaurant on Route 18 South in East Brunswick. Awards will be given to bar members in the following areas: Pro Bono; Non-Litigation; Civil Trial Practice; Criminal Trial Practice; and Municipal Court Practice.
The guest speaker will be Hon. Travis L. Francis, AJSC.
The MCBA will pay tribute to these bar members for their significant contributions to their respective practice areas.
The following awards will be given:
-Pro Bono Attorney-of-the Year Henry Gurshman
-Civil Trial Practitioner-of-the-Year John Gorman
-Criminal Trial Attorney-of-the-Year Jim Nolan & Nicole Albert
-Municipal Court Practitioner-of-the-Year Kenneth Vercammen
-Young Lawyer of the Year Kimberly Yonta Aronow
-Transactional Attorney of the Year Michael Schaff
The purpose of the Awards is to recognize attorneys practicing in Middlesex County and adjacent municipalities who devote a significant portion of their law practice to their respective practice areas and exhibit one or more of the following:
- Leadership in the potential candidate’s field of practice;
- Significant, tangible contributions to the Bar, such as participation in educational panels, Bar committees, etc, pertaining to non-litigation issues;
- Contributions to the community and/or charitable endeavors;
- A record promoting participation and involvement in the MCBA and collegiality within the Association; and
- A reputation for personal and professional integrity.
The evening will commence with a cocktail hour (cash bar) at 6:00 p.m. and dinner will be served at 7:00 p.m. The cost to attend is $35 for MCBA Young Lawyers, $40 for MCBA Members and $45 for all others, in advance.
For additional information, contact the Bar Office at (732) 828-3433, ext. 102.
More details at http://www.mcbalaw.com/cde.cfm?event=186648
Sunny Palace
1069 Route 18 South
East Brunswick, NJ 08816
Wednesday, February 20, 2008
Marijuana 2C:35-10
The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses:
NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish;
NJSA 2C:35-10(b), using or being under the influence of CDS;
NJSA 2C:35-10(c), failure to deliver CDS to police;
NJSA 2C:36-2, possession of drug paraphernalia
Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed.
Moreover, the court must suspend the defendant's driver's license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.
If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge.
CONDITIONAL DISCHARGE
New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted "supervisory treatment" under 24:21-27, 2C:43-12 or 2C: 36A-l may apply for a conditional discharge. The court upon notice to the prosecutor and subject to 2C: 36A-l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).
Since the granting of a conditional discharge is optional to the court, you should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community.
You should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendant's driver's license between six months and two years.
The conditional discharge period is also between six months and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.
SUPPRESSION MOTION
A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5-7. The court rules have been amended to provide the Suppression Motion can be held directly in the Municipal Court. Your attorney can subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is very important.
PRE-TRIAL
The Municipal Court prosecutor is responsible for providing discovery. Rules 3:13-3, 7:4-2, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990). The State must prove the substance seized was a controlled dangerous substance (CDS).
To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35-19. If the State intends to introduce the lab certificate at the trial, a notice of an intent to proffer that certificate and all reports relating to the analysis of the CDS shall be served on defense counsel at least 20 days before the proceeding begins. This includes an actual copy of the lab certificate.
Within 10 days of receipt, the Defense counsel must notify the Prosecutor in writing. This will not only alert the Prosecutor to the Defendant's objections concerning the admission of the lab certificate into evidence, but also set forth grounds for the objection, 2C:35-19c. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence.
THE TRIAL
The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). The State must prove knowledge or purpose on the part of the defendant.
Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Purpose means it was defendant's conscious intention to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990).
If actual possession cannot be demonstrated, defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975).
In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held that there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS secretly contained in envelopes in a vinyl bag resting on the back seat next to another passenger in the car.
In addition to establishing if the item seized is a CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutor's witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug.
If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence.
CONCLUSION
Drug related offenses carry substantial penalties which will effect a person for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances. Do not permit drug use and you will not have to worry about the substantial penalties.
New Drug Possession Law:
2C:35-10 Possession, use or being under the influence, or failure to make lawful disposition
2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.
a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:
(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $35,000.00 may be imposed;
(2) Any controlled dangerous substance, or its analog, classified in Schedule V, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $15,000.00 may be imposed;
(3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish is guilty of a crime of the fourth degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or
(4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person.
Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.
b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.
In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.
c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.
Amended 1988, c.44, s.5; 1997, c.181, s.6.
2C:35-10.2 Possession, etc. of gamma hydroxybutyrate; penalties 4. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, gamma hydroxybutyrate unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).
b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.
L.1997,c. 194, s.4.
2C:35-10.3 Possession, etc. of flunitrazepam; penalties 6. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, flunitrazepam, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).
b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.
L.1997,c. 194, s.6.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment
NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish;
NJSA 2C:35-10(b), using or being under the influence of CDS;
NJSA 2C:35-10(c), failure to deliver CDS to police;
NJSA 2C:36-2, possession of drug paraphernalia
Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed.
Moreover, the court must suspend the defendant's driver's license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.
If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge.
CONDITIONAL DISCHARGE
New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted "supervisory treatment" under 24:21-27, 2C:43-12 or 2C: 36A-l may apply for a conditional discharge. The court upon notice to the prosecutor and subject to 2C: 36A-l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).
Since the granting of a conditional discharge is optional to the court, you should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community.
You should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendant's driver's license between six months and two years.
The conditional discharge period is also between six months and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.
SUPPRESSION MOTION
A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5-7. The court rules have been amended to provide the Suppression Motion can be held directly in the Municipal Court. Your attorney can subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is very important.
PRE-TRIAL
The Municipal Court prosecutor is responsible for providing discovery. Rules 3:13-3, 7:4-2, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990). The State must prove the substance seized was a controlled dangerous substance (CDS).
To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35-19. If the State intends to introduce the lab certificate at the trial, a notice of an intent to proffer that certificate and all reports relating to the analysis of the CDS shall be served on defense counsel at least 20 days before the proceeding begins. This includes an actual copy of the lab certificate.
Within 10 days of receipt, the Defense counsel must notify the Prosecutor in writing. This will not only alert the Prosecutor to the Defendant's objections concerning the admission of the lab certificate into evidence, but also set forth grounds for the objection, 2C:35-19c. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence.
THE TRIAL
The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). The State must prove knowledge or purpose on the part of the defendant.
Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Purpose means it was defendant's conscious intention to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990).
If actual possession cannot be demonstrated, defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975).
In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held that there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS secretly contained in envelopes in a vinyl bag resting on the back seat next to another passenger in the car.
In addition to establishing if the item seized is a CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutor's witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug.
If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence.
CONCLUSION
Drug related offenses carry substantial penalties which will effect a person for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances. Do not permit drug use and you will not have to worry about the substantial penalties.
New Drug Possession Law:
2C:35-10 Possession, use or being under the influence, or failure to make lawful disposition
2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.
a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:
(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $35,000.00 may be imposed;
(2) Any controlled dangerous substance, or its analog, classified in Schedule V, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $15,000.00 may be imposed;
(3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish is guilty of a crime of the fourth degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or
(4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person.
Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.
b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.
In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.
c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.
Amended 1988, c.44, s.5; 1997, c.181, s.6.
2C:35-10.2 Possession, etc. of gamma hydroxybutyrate; penalties 4. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, gamma hydroxybutyrate unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).
b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.
L.1997,c. 194, s.4.
2C:35-10.3 Possession, etc. of flunitrazepam; penalties 6. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, flunitrazepam, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.).
b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section.
L.1997,c. 194, s.6.
Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.
Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.
When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment
Tuesday, February 05, 2008
State of New Jersey in the Interest of D.Y.
02-04-08 A-0490-07T4
The prosecutor filed a complaint in the Family Part
charging a juvenile with aggravated assault that led to the
victim's death. More than 30 days later, after further
investigation indicated that the juvenile had far greater
responsibility for the death, the prosecutor dismissed the first
complaint and filed a second complaint charging murder. Within
30 days of the second filing, the prosecutor moved for waiver of
the murder complaint to the Law Division, where the juvenile
would be tried as an adult. We reversed the denial of the
prosecutor's motion, holding: (1) the motion was timely because
the 30 time limit of N.J.S.A. 2A:4A-26(d) and Rule 5:22-2(a) did
not begin to run on the murder complaint until it was filed; (2)
the development of the additional incriminatory evidence after
the filing of the first complaint provided good cause for an
extension of the 30-day time limit even if that time began to
run from the filing of the first complaint.
The prosecutor filed a complaint in the Family Part
charging a juvenile with aggravated assault that led to the
victim's death. More than 30 days later, after further
investigation indicated that the juvenile had far greater
responsibility for the death, the prosecutor dismissed the first
complaint and filed a second complaint charging murder. Within
30 days of the second filing, the prosecutor moved for waiver of
the murder complaint to the Law Division, where the juvenile
would be tried as an adult. We reversed the denial of the
prosecutor's motion, holding: (1) the motion was timely because
the 30 time limit of N.J.S.A. 2A:4A-26(d) and Rule 5:22-2(a) did
not begin to run on the murder complaint until it was filed; (2)
the development of the additional incriminatory evidence after
the filing of the first complaint provided good cause for an
extension of the 30-day time limit even if that time began to
run from the filing of the first complaint.
State v. Quinn Marshall
01-29-08 A-3397-05T4
A judge issued a search warrant for an apartment in a
multiple unit structure but required that the police further
investigate which of two apartments was allegedly involved in
criminality; he did not require that the police return with this
additional, necessary information, but instead issued the
warrant on the condition that it not be executed until that
additional information was obtained. The court concluded that
this process violated the constitutional requirement that a
search warrant be issued by a "neutral and detached magistrate"
because the judge ceded his authority to the discretion of the
police.
The State also argued that the warrant was sufficient
insofar as it had authorized the police to search whichever
apartment was "controlled" or "possessed" by a particular
person. The court held that this loose description did not
conform to the constitutional requirement that the place to be
searched be "particularly describe[d]" in the warrant.
A judge issued a search warrant for an apartment in a
multiple unit structure but required that the police further
investigate which of two apartments was allegedly involved in
criminality; he did not require that the police return with this
additional, necessary information, but instead issued the
warrant on the condition that it not be executed until that
additional information was obtained. The court concluded that
this process violated the constitutional requirement that a
search warrant be issued by a "neutral and detached magistrate"
because the judge ceded his authority to the discretion of the
police.
The State also argued that the warrant was sufficient
insofar as it had authorized the police to search whichever
apartment was "controlled" or "possessed" by a particular
person. The court held that this loose description did not
conform to the constitutional requirement that the place to be
searched be "particularly describe[d]" in the warrant.
State v. Morgan C. Scott
01-28-08* A-5813-03T4
The primary issue in this case was whether defendant
actually or constructively possessed cocaine that was found in
the vehicle in which he was a passenger. With one judge
dissenting, we affirmed the trial court's decision to deny
defendant's motion for acquittal and his motion for a new trial.
But we remanded for a determination regarding the voluntariness
of statements attributed to defendant and for resentencing.
[*Approved for Publication date]
The primary issue in this case was whether defendant
actually or constructively possessed cocaine that was found in
the vehicle in which he was a passenger. With one judge
dissenting, we affirmed the trial court's decision to deny
defendant's motion for acquittal and his motion for a new trial.
But we remanded for a determination regarding the voluntariness
of statements attributed to defendant and for resentencing.
[*Approved for Publication date]
State v. Ernest J. Read, III
01-24-08 A-1751-03T4
In determining whether to waive a charge of a Chart 1
offense against a juvenile over the age of sixteen, the Family
Part is not required to consider the juvenile's alleged
psychological impairments. N.J.S.A. 2A:4A-26, which authorizes
the Family Part to waive jurisdiction to adult court based on
judicial fact-finding by a preponderance of the evidence, does
not violate a juvenile-defendant's jury trial rights under the
principles set forth in Apprendi and Blakely.
In determining whether to waive a charge of a Chart 1
offense against a juvenile over the age of sixteen, the Family
Part is not required to consider the juvenile's alleged
psychological impairments. N.J.S.A. 2A:4A-26, which authorizes
the Family Part to waive jurisdiction to adult court based on
judicial fact-finding by a preponderance of the evidence, does
not violate a juvenile-defendant's jury trial rights under the
principles set forth in Apprendi and Blakely.
Monday, February 04, 2008
State v. B.M.
01-11-08 A-4075-06T5
We hold that a defendant's decision to introduce certain
evidence may trigger the right of the State to rebut any unfair
implication of that evidence. In this matter where sexual abuse
is alleged by a ten-year-old child, we affirm the trial court's
exercise of discretion to permit the defendant to elicit on
cross-examination that the child had also alleged separate
incidents of sexual abuse by three other persons. We remand,
however, for further consideration, in light of the doctrine of
"opening the door," as to whether the State may introduce
evidence of juvenile delinquency adjudications pursuant to
guilty pleas by the other three alleged abusers.
We hold that a defendant's decision to introduce certain
evidence may trigger the right of the State to rebut any unfair
implication of that evidence. In this matter where sexual abuse
is alleged by a ten-year-old child, we affirm the trial court's
exercise of discretion to permit the defendant to elicit on
cross-examination that the child had also alleged separate
incidents of sexual abuse by three other persons. We remand,
however, for further consideration, in light of the doctrine of
"opening the door," as to whether the State may introduce
evidence of juvenile delinquency adjudications pursuant to
guilty pleas by the other three alleged abusers.
State v. Thomas Conroy, Jr.
01-09-08 A-2384-06T5
The question presented is whether a defendant, who has had
three prior convictions for DWI, is entitled to the benefit of
the ten-year step-down provision of N.J.S.A. 39:4-50(a)(3) on a
fourth conviction, where the first conviction was entered by way
of an uncounseled plea. We answer the question in the
affirmative, determining that when defendant appeared before the
Law Division he stood as a third offender, not a fourth
offender, for the limited purpose of the trial court imposing a
jail sentence under the enhanced sentencing provision of the DWI
statute.
The question presented is whether a defendant, who has had
three prior convictions for DWI, is entitled to the benefit of
the ten-year step-down provision of N.J.S.A. 39:4-50(a)(3) on a
fourth conviction, where the first conviction was entered by way
of an uncounseled plea. We answer the question in the
affirmative, determining that when defendant appeared before the
Law Division he stood as a third offender, not a fourth
offender, for the limited purpose of the trial court imposing a
jail sentence under the enhanced sentencing provision of the DWI
statute.
State v. David L. Wilder
1-31-08 (A-87-06)
Based on the State’s evidence and giving the State the benefit
of all favorable inferences, a jury reasonably could have
convicted defendant of serious-bodily-injury murder; thus, the
trial court did not err by sending the murder charge to the
jury. The Court rejects continued use of the Christener rule;
overcharging errors must be reviewed under the “unjust result”
standard established in Rule 2:10-2.
Based on the State’s evidence and giving the State the benefit
of all favorable inferences, a jury reasonably could have
convicted defendant of serious-bodily-injury murder; thus, the
trial court did not err by sending the murder charge to the
jury. The Court rejects continued use of the Christener rule;
overcharging errors must be reviewed under the “unjust result”
standard established in Rule 2:10-2.
State v. William J. Allegro
1-29-08 (A-119-06)
Allegro’s ineffective assistance of counsel claims arising from
defense counsel’s failure to investigate potential witnesses and
to call those witnesses do not satisfy the two-pronged
Strickland/Fritz standard. His claims in respect of counsel’s
ineffectiveness in the plea discussions and negotiations
requires a remand for development of a more comprehensive record
and the PCR court’s conclusions based on that record.
State v. George Jenewicz
1-28-08 (A-78-06)
The cumulative impact of the trial court’s preclusion of
testimony from two defense witnesses and the prosecution’s
improper cross-examination of the defense expert and
disparagement of the defense expert during summation prejudiced
the fairness of defendant’s trial and cast doubt on the
propriety of the jury’s verdict, warranting a new trial.
The cumulative impact of the trial court’s preclusion of
testimony from two defense witnesses and the prosecution’s
improper cross-examination of the defense expert and
disparagement of the defense expert during summation prejudiced
the fairness of defendant’s trial and cast doubt on the
propriety of the jury’s verdict, warranting a new trial.
State v. Manuel B. Ortiz
1-17-08 (A-109-06)
Krol periodic review hearings must be held for those defendants
acquitted by reason of insanity who are committed under N.J.S.A.
2C:4-8(b)(3) as well as for those who are released subject to
supervision or conditions pursuant to N.J.S.A. 2C:4-8(b)(2), but
not for those who are released without supervision or conditions
as provided in N.J.S.A. 2C:4-8(b)(1).
Krol periodic review hearings must be held for those defendants
acquitted by reason of insanity who are committed under N.J.S.A.
2C:4-8(b)(3) as well as for those who are released subject to
supervision or conditions pursuant to N.J.S.A. 2C:4-8(b)(2), but
not for those who are released without supervision or conditions
as provided in N.J.S.A. 2C:4-8(b)(1).
State v. Frederick T. Hamilton
1-16-08 (A-57-06)
The trial court erred in concluding that it had no ability to
ameliorate the undue prejudice to defendant through sanitization
of his earlier conviction. This Court’s prior holding that
sanitization is mandatory in situations in which a prior
conviction is the same or similar to the present charge did not
foreclose from trial courts the discretion to consider
sanitization in other circumstances that pose a risk of undue
prejudice to a defendant.
The trial court erred in concluding that it had no ability to
ameliorate the undue prejudice to defendant through sanitization
of his earlier conviction. This Court’s prior holding that
sanitization is mandatory in situations in which a prior
conviction is the same or similar to the present charge did not
foreclose from trial courts the discretion to consider
sanitization in other circumstances that pose a risk of undue
prejudice to a defendant.
State v. Morgan Scott
1-10-08 (A-115-06)
The judgment of the Appellate Division is affirmed substantially
for the reasons expressed in the Appellate Division’s majority
opinion.
The judgment of the Appellate Division is affirmed substantially
for the reasons expressed in the Appellate Division’s majority
opinion.
Wednesday, January 09, 2008
State v. Larry R. Henderson
01-07-08 A-2921-04T4
In this appeal, the court reversed the denial of
defendant's motion to suppress an out-of-court identification
because the Attorney General's "Guidelines for Preparing and
Conducting Photo and Live Lineup Identification Procedures" were
materially breached by the investigating officers' intrusion
into an eyewitness's examination of a photographic array. The
court concluded that this breach of the guidelines gave rise to
a presumption of impermissible suggestiveness and required that
a new Wade hearing regarding the reliability of the
identification be conducted.
In this appeal, the court reversed the denial of
defendant's motion to suppress an out-of-court identification
because the Attorney General's "Guidelines for Preparing and
Conducting Photo and Live Lineup Identification Procedures" were
materially breached by the investigating officers' intrusion
into an eyewitness's examination of a photographic array. The
court concluded that this breach of the guidelines gave rise to
a presumption of impermissible suggestiveness and required that
a new Wade hearing regarding the reliability of the
identification be conducted.
State v. Kelvis Calcano
12-20-07 A-3579-06T1
In this bail forfeiture case, the trial court did not abuse
its discretion when it continued defendant's bail although
defendant had lost contact with the surety for a period of time
and thereafter faced a mandatory prison sentence after pleading
guilty. As a result, bail was properly forfeited when defendant
failed to appear at sentencing.
In this bail forfeiture case, the trial court did not abuse
its discretion when it continued defendant's bail although
defendant had lost contact with the surety for a period of time
and thereafter faced a mandatory prison sentence after pleading
guilty. As a result, bail was properly forfeited when defendant
failed to appear at sentencing.
State v. Brandon Krause
12-17-07 A-3737-06T5
Based on defendant's failure to meet his burden of proving
facts that would establish that the Hackettstown noise ordinance
was preempted by the Noise Control Act of 1971, N.J.S.A. 13:1G-1
to -23, the ordinance was held valid and the conviction
affirmed. However, the opinion noted that local noise
ordinances may require DEP approval to be enforceable at least
with respect to certain facilities, such as commercial and
industrial sites.
Based on defendant's failure to meet his burden of proving
facts that would establish that the Hackettstown noise ordinance
was preempted by the Noise Control Act of 1971, N.J.S.A. 13:1G-1
to -23, the ordinance was held valid and the conviction
affirmed. However, the opinion noted that local noise
ordinances may require DEP approval to be enforceable at least
with respect to certain facilities, such as commercial and
industrial sites.
State v. Lateef J. Colley
12-14-07 A-3347-06T5
A prior conviction in another state for conduct equivalent
to that proscribed by N.J.S.A. 39:4-50 subjects the defendant to
the enhanced penalty provision set by N.J.S.A. 39:3-40f(2) upon
a subsequent conviction in this state.
A prior conviction in another state for conduct equivalent
to that proscribed by N.J.S.A. 39:4-50 subjects the defendant to
the enhanced penalty provision set by N.J.S.A. 39:3-40f(2) upon
a subsequent conviction in this state.
State v. J.J.
12-11-07 A-2777-05T5
When, as part of a guilty plea, defendant is subject to
community supervision under Megan's Law, the court must ensure
that defendant understands the particular consequences of such
supervision. In this case, defendant was not informed that
Megan's Law would prevent him from living with his new wife and
her child. Therefore, defendant should have been allowed to
withdraw his guilty plea and proceed to trial on all the charges
contained in the indictments.
When, as part of a guilty plea, defendant is subject to
community supervision under Megan's Law, the court must ensure
that defendant understands the particular consequences of such
supervision. In this case, defendant was not informed that
Megan's Law would prevent him from living with his new wife and
her child. Therefore, defendant should have been allowed to
withdraw his guilty plea and proceed to trial on all the charges
contained in the indictments.
State v. Roger Emmons
12-07-07 A-5689-05T1
N.J.S.A. 2C:29-7, which proscribes a defendant's failure to
appear either in court or for service of a sentence, is
constitutional. Although a jury instruction in the language of
the second sentence of N.J.S.A. 2C:29-7 would impose an
unconstitutional burden upon a defendant to disprove the
"knowing" mental culpability element of the offense, this
constitutional defect can be avoided by a jury instruction that
omits any reference to a defendant having the burden to prove
that his failure to appear was "not knowingly."
N.J.S.A. 2C:29-7, which proscribes a defendant's failure to
appear either in court or for service of a sentence, is
constitutional. Although a jury instruction in the language of
the second sentence of N.J.S.A. 2C:29-7 would impose an
unconstitutional burden upon a defendant to disprove the
"knowing" mental culpability element of the offense, this
constitutional defect can be avoided by a jury instruction that
omits any reference to a defendant having the burden to prove
that his failure to appear was "not knowingly."
State v. Daniel Luna
12-19-07 (A-68-06)
It is not possible to infer that defendant knowingly waived his
right to be present at trial because the trial court did not
conduct an inquiry to determine whether defendant willingly
absented himself. For that reason, defendant’s convictions must
be reversed.
It is not possible to infer that defendant knowingly waived his
right to be present at trial because the trial court did not
conduct an inquiry to determine whether defendant willingly
absented himself. For that reason, defendant’s convictions must
be reversed.
State v. Stacey Froland-Kindt
12-12-07 (A-8-06)
A person who acts with the permission of a parent is not guilty
of non-consent kidnapping unless the person uses force, threat
or deception.
A person who acts with the permission of a parent is not guilty
of non-consent kidnapping unless the person uses force, threat
or deception.
State v. Ambrose Harris
12-4-07 (A-95-06)
Defendant Ambrose Harris is not entitled to any relief under
State v. DiFrisco. His petition for post-conviction relief is
denied. To the extent that Harris seeks an extension of
DiFrisco, the application also is denied.
Defendant Ambrose Harris is not entitled to any relief under
State v. DiFrisco. His petition for post-conviction relief is
denied. To the extent that Harris seeks an extension of
DiFrisco, the application also is denied.
Saturday, December 22, 2007
ABA CRIMINAL LAW COMMITTEE NEWSLETTER December 2007
ABA CRIMINAL LAW COMMITTEE NEWSLETTER December 2007
ABA General Practice, Solo and Small Firm Division American Bar Association
Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ
In this Issue:
1. U.S. Supreme Court, December 10, 2007 Gall v. US, No. 06-7949
2 Watson v. US, No. 06–571
3. Kimbrough v. US, No. 06-6330 U.S. Supreme Court, December 10, 2007
4. Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the dog.
5. More Criminal articles and forms added to website
http://benotguilty.com/
____________________________________________________
1. U.S. Supreme Court, December 10, 2007 Gall v. US, No. 06-7949
In reviewing the reasonableness of sentences imposed by district judges, while the extent of the difference between a particular sentence and the recommended Sentencing Guidelines range is relevant, courts of appeals must review all sentences whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion standard
SUPREME COURT OF THE UNITED STATES
GALL v. UNITED STATES
certiorari to the united states court of appeals for the eighth circuit
No. 06–7949. Argued October 2, 2007—Decided December 10, 2007
Petitioner Gall joined an ongoing enterprise distributing the controlled substance “ecstasy” while in college, but withdrew from the conspiracy after seven months, has sold no illegal drugs since, and has used no illegal drugs and worked steadily since graduation. Three and half years after withdrawing from the conspiracy, Gall pleaded guilty to his participation. A presentence report recommended a sentence of 30 to 37 months in prison, but the District Court sentenced Gall to 36 months’ probation, finding that probation reflected the seriousness of his offense and that imprisonment was unnecessary because his voluntary withdrawal from the conspiracy and post offense conduct showed that he would not return to criminal behavior and was not a danger to society. The Eighth Circuit reversed on the ground that a sentence outside the Federal Sentencing Guidelines range must be—and was not in this case—supported by extraordinary circumstances.
Held:
1. While the extent of the difference between a particular sentence and the recommended Guidelines range is relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard. Pp. 7–14.
(a) Because the Guidelines are now advisory, appellate review of sentencing decisions is limited to determining whether they are “reasonable,” United States v. Booker, 543 U. S. 220 , and an abuse-of-discretion standard applies to appellate review of sentencing decisions. A district judge must consider the extent of any departure from the Guidelines and must explain the appropriateness of an unusually lenient or harsh sentence with sufficient justifications. An appellate court may take the degree of variance into account and consider the extent of a deviation from the Guidelines, but it may not require “extraordinary” circumstances or employ a rigid mathematical formula using a departure’s percentage as the standard for determining the strength of the justification required for a specific sentence. Such approaches come too close to creating an impermissible unreasonableness presumption for sentences outside the Guidelines range. The mathematical approach also suffers from infirmities of application. And both approaches reflect a practice of applying a heightened standard of review to sentences outside the Guidelines range, which is inconsistent with the rule that the abuse-of-discretion standard applies to appellate review of all sentencing decisions—whether inside or outside that range. Pp. 7–10.
(b) A district court should begin by correctly calculating the applicable Guidelines range. The Guidelines are the starting point and initial benchmark but are not the only consideration. After permitting both parties to argue for a particular sentence, the judge should consider all of 18 U. S. C. §3353(a)’s factors to determine whether they support either party’s proposal. He may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented. If he decides on an outside-the-Guidelines sentence, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variation. He must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. In reviewing the sentence, the appellate court must first ensure that the district court made no significant procedural errors and then consider the sentence’s substantive reasonableness under an abuse-of-discretion standard, taking into account the totality of the circumstances, including the extent of a variance from the Guidelines range, but must give due deference to the district court’s decision that the §3553(a) factors justify the variance. That the appellate court might have reasonably reached a different conclusion does not justify reversal. Pp. 11–14.
2. On abuse-of-discretion review, the Eighth Circuit failed to give due deference to the District Court’s reasoned and reasonable sentencing decision. Since the District Court committed no procedural error, the only question for the Circuit was whether the sentence was reasonable, i.e., whether the District Judge abused his discretion in determining that the §3553(a) factors supported the sentence and justified a substantial deviation from the Guidelines range. The Circuit gave virtually no deference to the District Court’s decision that the variance was justified. The Circuit clearly disagreed with the District Court’s decision, but it was not for the Circuit to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. Pp. 14–21.
2 Watson v. US, No. 06–571 U.S. Supreme Court, December 10, 2007
In the context of criminal sentencing, a person who trades his drugs for a gun does not "use" a firearm "during and in relation to . . . [a] drug trafficking crime" within the meaning of 18 U.S.C. section 924(c)(1)(A).
After trading a controlled substance for a pistol, petitioner Watson was indicted for, inter alia, violating 18 U. S. C. §924(c)(1)(A), which sets a mandatory minimum sentence, depending on the facts, for a defendant who, “during and in relation to any … drug trafficking crime[,] … uses … a firearm.” The statute does not define “uses,” but this Court has spoken to it twice. In holding that “a criminal who trades his firearm for drugs ‘uses’ it … within the meaning of §924(c)(1),” Smith v. United States, 508 U. S. 223 , the Court rested primarily on the “ordinary or natural meaning” of the verb in context, id., at 228, understanding its common range as going beyond employment as a weapon to trading a weapon for drugs, id., at 230. Later, in holding that merely possessing a firearm kept near the scene of drug trafficking is not “use” under §924(c)(1), the Court, in Bailey v. United States, 516 U. S. 137 , again looked to “ordinary or natural” meaning, id., at 145, deciding that “§924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense,” id., at 143. Watson pleaded guilty but reserved the right to challenge the factual basis for a §924(c)(1)(A) conviction and sentence. The Fifth Circuit affirmed on its precedent foreclosing any argument that Watson had not “used” a firearm.
Held: A person does not “use” a firearm under 18 U. S. C. §924(c)(1)(A) when he receives it in trade for drugs. Pp. 4–9.
(a) The Government’s position lacks authority in either precedent or regular English. Neither Smith, which addressed only the trader who swaps his gun for drugs, not the trading partner who ends up with the gun, nor Bailey, which ruled that a gun must be made use of actively to satisfy §924(c)(1)(A), decides this case. With no statutory definition, the meaning of “uses” has to turn on “everyday meaning” revealed in phraseology that strikes the ear as “both reasonable and normal.” Smith, supra, 228, 230. When Watson handed over the drugs for the pistol, the officer “used” the pistol to get the drugs, but regular speech would not say that Watson himself used the pistol in the trade. Pp. 4–5.
(b) The Government’s first effort to trump ordinary English is rejected. Noting that §924(d)(1) authorizes seizure and forfeiture of firearms “intended to be used in” certain crimes, the Government infers that since some of those offenses involve receipt of a firearm, “use” necessarily includes receipt of a gun even in a barter transaction. The Government’s reliance on Smith for the proposition that the term must be given the same meaning in both subsections overreads Smith. The common verb “use” is not at odds in the two subsections but speaks to different issues in different voices and at different levels of specificity. Section 924(d)(1) indicates that a gun can be “used” in a receipt crime, but does not say whether both parties to a transfer use the gun, or only one, or which one; however, §924(c)(1)(A) requires just such a specific identification. Pp. 5–7.
(c) Nor is the Government’s second effort to trump ordinary English persuasive. It claims that failing to treat receipt in trade as “use” would create unacceptable asymmetry with Smith; i.e., it would be strange to penalize one side of a gun-for-drugs exchange but not the other. The problem is not with Smith, however, but with the limited malleability of the language it construed, and policy-driven symmetry cannot turn “receipt-in-trade” into “use.” Whatever the tension between the prior result and the outcome here, law depends on respect for language and would be served better by statutory amendment than by racking statutory language to cover a policy it fails to reach. Pp. 8–9.
3. Kimbrough v. US, No. 06-6330 U.S. Supreme Court, December 10, 2007
Under United States v. Booker, 543 U. S. 220 , the cocaine Guidelines, like all other Guidelines, are advisory only, and the Fourth Circuit erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine that, in the particular case, a within-Guidelines sentence is “greater than necessary” to serve the objectives of sentencing, §3553(a). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder offenses
4. Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the dog.
See photo http://www.njlaws.com/vercammen_family_2007.htm
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In the true spirit of the season, may we all be thankful and share in the hope for peace on earth and goodwill toward our fellow man.
May the new year bring happiness and good health to you and those you love.
More Holiday cheer at this great site:
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5. More Criminal articles and forms added to website
http://benotguilty.com/
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Brian T Hermanson Ponca City, OK Chair
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www.BeNotGuilty.com
ABA General Practice, Solo and Small Firm Division American Bar Association
Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ
In this Issue:
1. U.S. Supreme Court, December 10, 2007 Gall v. US, No. 06-7949
2 Watson v. US, No. 06–571
3. Kimbrough v. US, No. 06-6330 U.S. Supreme Court, December 10, 2007
4. Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the dog.
5. More Criminal articles and forms added to website
http://benotguilty.com/
____________________________________________________
1. U.S. Supreme Court, December 10, 2007 Gall v. US, No. 06-7949
In reviewing the reasonableness of sentences imposed by district judges, while the extent of the difference between a particular sentence and the recommended Sentencing Guidelines range is relevant, courts of appeals must review all sentences whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion standard
SUPREME COURT OF THE UNITED STATES
GALL v. UNITED STATES
certiorari to the united states court of appeals for the eighth circuit
No. 06–7949. Argued October 2, 2007—Decided December 10, 2007
Petitioner Gall joined an ongoing enterprise distributing the controlled substance “ecstasy” while in college, but withdrew from the conspiracy after seven months, has sold no illegal drugs since, and has used no illegal drugs and worked steadily since graduation. Three and half years after withdrawing from the conspiracy, Gall pleaded guilty to his participation. A presentence report recommended a sentence of 30 to 37 months in prison, but the District Court sentenced Gall to 36 months’ probation, finding that probation reflected the seriousness of his offense and that imprisonment was unnecessary because his voluntary withdrawal from the conspiracy and post offense conduct showed that he would not return to criminal behavior and was not a danger to society. The Eighth Circuit reversed on the ground that a sentence outside the Federal Sentencing Guidelines range must be—and was not in this case—supported by extraordinary circumstances.
Held:
1. While the extent of the difference between a particular sentence and the recommended Guidelines range is relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard. Pp. 7–14.
(a) Because the Guidelines are now advisory, appellate review of sentencing decisions is limited to determining whether they are “reasonable,” United States v. Booker, 543 U. S. 220 , and an abuse-of-discretion standard applies to appellate review of sentencing decisions. A district judge must consider the extent of any departure from the Guidelines and must explain the appropriateness of an unusually lenient or harsh sentence with sufficient justifications. An appellate court may take the degree of variance into account and consider the extent of a deviation from the Guidelines, but it may not require “extraordinary” circumstances or employ a rigid mathematical formula using a departure’s percentage as the standard for determining the strength of the justification required for a specific sentence. Such approaches come too close to creating an impermissible unreasonableness presumption for sentences outside the Guidelines range. The mathematical approach also suffers from infirmities of application. And both approaches reflect a practice of applying a heightened standard of review to sentences outside the Guidelines range, which is inconsistent with the rule that the abuse-of-discretion standard applies to appellate review of all sentencing decisions—whether inside or outside that range. Pp. 7–10.
(b) A district court should begin by correctly calculating the applicable Guidelines range. The Guidelines are the starting point and initial benchmark but are not the only consideration. After permitting both parties to argue for a particular sentence, the judge should consider all of 18 U. S. C. §3353(a)’s factors to determine whether they support either party’s proposal. He may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented. If he decides on an outside-the-Guidelines sentence, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variation. He must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. In reviewing the sentence, the appellate court must first ensure that the district court made no significant procedural errors and then consider the sentence’s substantive reasonableness under an abuse-of-discretion standard, taking into account the totality of the circumstances, including the extent of a variance from the Guidelines range, but must give due deference to the district court’s decision that the §3553(a) factors justify the variance. That the appellate court might have reasonably reached a different conclusion does not justify reversal. Pp. 11–14.
2. On abuse-of-discretion review, the Eighth Circuit failed to give due deference to the District Court’s reasoned and reasonable sentencing decision. Since the District Court committed no procedural error, the only question for the Circuit was whether the sentence was reasonable, i.e., whether the District Judge abused his discretion in determining that the §3553(a) factors supported the sentence and justified a substantial deviation from the Guidelines range. The Circuit gave virtually no deference to the District Court’s decision that the variance was justified. The Circuit clearly disagreed with the District Court’s decision, but it was not for the Circuit to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. Pp. 14–21.
2 Watson v. US, No. 06–571 U.S. Supreme Court, December 10, 2007
In the context of criminal sentencing, a person who trades his drugs for a gun does not "use" a firearm "during and in relation to . . . [a] drug trafficking crime" within the meaning of 18 U.S.C. section 924(c)(1)(A).
After trading a controlled substance for a pistol, petitioner Watson was indicted for, inter alia, violating 18 U. S. C. §924(c)(1)(A), which sets a mandatory minimum sentence, depending on the facts, for a defendant who, “during and in relation to any … drug trafficking crime[,] … uses … a firearm.” The statute does not define “uses,” but this Court has spoken to it twice. In holding that “a criminal who trades his firearm for drugs ‘uses’ it … within the meaning of §924(c)(1),” Smith v. United States, 508 U. S. 223 , the Court rested primarily on the “ordinary or natural meaning” of the verb in context, id., at 228, understanding its common range as going beyond employment as a weapon to trading a weapon for drugs, id., at 230. Later, in holding that merely possessing a firearm kept near the scene of drug trafficking is not “use” under §924(c)(1), the Court, in Bailey v. United States, 516 U. S. 137 , again looked to “ordinary or natural” meaning, id., at 145, deciding that “§924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense,” id., at 143. Watson pleaded guilty but reserved the right to challenge the factual basis for a §924(c)(1)(A) conviction and sentence. The Fifth Circuit affirmed on its precedent foreclosing any argument that Watson had not “used” a firearm.
Held: A person does not “use” a firearm under 18 U. S. C. §924(c)(1)(A) when he receives it in trade for drugs. Pp. 4–9.
(a) The Government’s position lacks authority in either precedent or regular English. Neither Smith, which addressed only the trader who swaps his gun for drugs, not the trading partner who ends up with the gun, nor Bailey, which ruled that a gun must be made use of actively to satisfy §924(c)(1)(A), decides this case. With no statutory definition, the meaning of “uses” has to turn on “everyday meaning” revealed in phraseology that strikes the ear as “both reasonable and normal.” Smith, supra, 228, 230. When Watson handed over the drugs for the pistol, the officer “used” the pistol to get the drugs, but regular speech would not say that Watson himself used the pistol in the trade. Pp. 4–5.
(b) The Government’s first effort to trump ordinary English is rejected. Noting that §924(d)(1) authorizes seizure and forfeiture of firearms “intended to be used in” certain crimes, the Government infers that since some of those offenses involve receipt of a firearm, “use” necessarily includes receipt of a gun even in a barter transaction. The Government’s reliance on Smith for the proposition that the term must be given the same meaning in both subsections overreads Smith. The common verb “use” is not at odds in the two subsections but speaks to different issues in different voices and at different levels of specificity. Section 924(d)(1) indicates that a gun can be “used” in a receipt crime, but does not say whether both parties to a transfer use the gun, or only one, or which one; however, §924(c)(1)(A) requires just such a specific identification. Pp. 5–7.
(c) Nor is the Government’s second effort to trump ordinary English persuasive. It claims that failing to treat receipt in trade as “use” would create unacceptable asymmetry with Smith; i.e., it would be strange to penalize one side of a gun-for-drugs exchange but not the other. The problem is not with Smith, however, but with the limited malleability of the language it construed, and policy-driven symmetry cannot turn “receipt-in-trade” into “use.” Whatever the tension between the prior result and the outcome here, law depends on respect for language and would be served better by statutory amendment than by racking statutory language to cover a policy it fails to reach. Pp. 8–9.
3. Kimbrough v. US, No. 06-6330 U.S. Supreme Court, December 10, 2007
Under United States v. Booker, 543 U. S. 220 , the cocaine Guidelines, like all other Guidelines, are advisory only, and the Fourth Circuit erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine that, in the particular case, a within-Guidelines sentence is “greater than necessary” to serve the objectives of sentencing, §3553(a). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder offenses
4. Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the dog.
See photo http://www.njlaws.com/vercammen_family_2007.htm
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In the true spirit of the season, may we all be thankful and share in the hope for peace on earth and goodwill toward our fellow man.
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5. More Criminal articles and forms added to website
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The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Articles needed for American Bar Association Criminal Law Committee. Criminal Forms and articles sought plus tips on marketing and improving service to clients. Kenneth Vercammen of Edison serves as the Editor. Please email articles, suggestions or ideas you wish to share with others in the Criminal Law Committee. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. The ABA is increasing the frequency of publication of their email newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
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Edison, NJ 08817
(Phone) 732-572-0500
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Kenv@njlaws.com
www.BeNotGuilty.com
Sunday, December 02, 2007
State v. Thomas Lykes
11-5-07 (A-80-06)
Because Lykes placed his knowledge as to the contents of the
four vials directly at issue, N.J.R.E. 404(b) does not bar the
limited impeachment use of Lykes’ admission of having earlier
held cocaine vials and the questions allowed in this area were
proper. Furthermore, taken as a whole, the trial court’s
response to the jury’s question in respect of Lykes’ knowledge
as to the contents of the vials fairly and adequately instructed
the jury and, therefore, was improper.
Because Lykes placed his knowledge as to the contents of the
four vials directly at issue, N.J.R.E. 404(b) does not bar the
limited impeachment use of Lykes’ admission of having earlier
held cocaine vials and the questions allowed in this area were
proper. Furthermore, taken as a whole, the trial court’s
response to the jury’s question in respect of Lykes’ knowledge
as to the contents of the vials fairly and adequately instructed
the jury and, therefore, was improper.
State v. Howard Parks
10-25-07 (A-39-06)
The amended Three Strikes Law applies to defendant’s sentencing.
Because defendant “committed” only one predicate offense prior
to the subject offense, he did not qualify for enhanced
sentencing under the Three Strikes Law.
The amended Three Strikes Law applies to defendant’s sentencing.
Because defendant “committed” only one predicate offense prior
to the subject offense, he did not qualify for enhanced
sentencing under the Three Strikes Law.
State v. A.O.
11-27-07 A-5388-04T4
Defendant was convicted of aggravated sexual assault based
on the uncorroborated testimony of a child witness who had
recanted her accusation and then withdrawn the recantation.
Prior to his arrest, defendant entered into a polygraph
stipulation without advice of counsel. He failed the test, and
the test result was admitted at his trial. We reversed his
conviction, holding that inducing an uncounseled defendant to
sign a stipulation agreeing that polygraph results will be
admissible at trial, violates the defendant's Sixth Amendment
right to trial counsel. We also held that the trial court
should have held a State v. Guenther hearing before barring
defendant from introducing evidence that a few months after
accusing defendant, the victim-witness accused another man of
molesting her and then recanted her accusation. We concluded
Guenther applies to later, as well as prior, recanted
accusations. Judge Weissbard filed a concurring opinion.
Defendant was convicted of aggravated sexual assault based
on the uncorroborated testimony of a child witness who had
recanted her accusation and then withdrawn the recantation.
Prior to his arrest, defendant entered into a polygraph
stipulation without advice of counsel. He failed the test, and
the test result was admitted at his trial. We reversed his
conviction, holding that inducing an uncounseled defendant to
sign a stipulation agreeing that polygraph results will be
admissible at trial, violates the defendant's Sixth Amendment
right to trial counsel. We also held that the trial court
should have held a State v. Guenther hearing before barring
defendant from introducing evidence that a few months after
accusing defendant, the victim-witness accused another man of
molesting her and then recanted her accusation. We concluded
Guenther applies to later, as well as prior, recanted
accusations. Judge Weissbard filed a concurring opinion.
State of New Jersey v. Gary Gaither, a/k/a Gary W. Gaither
11-16-07 A-3063-05T4
Defendant appealed an order denying his petition for postconviction
relief (PCR) alleging ineffective assistance of
appellate counsel. Defendant argued that his appellate
counsel's failure to communicate with him regarding his appeal
constituted ineffective assistance of counsel per se. Secondly,
defendant sought to extend the holding in State v. Rue, 175 N.J.
1 (2002), to appellate counsel. In Rue, the Supreme Court held
that an attorney representing a defendant in a PCR petition is
required to communicate with his client, investigate the
client's claim, and advance all arguments requested by the
client.
We held that the two-prong Strickland analysis is to be
used in such cases and, therefore, that the failure to
communicate is not per se ineffective assistance of counsel. We
also declined to apply Rue to appellate counsel, finding it was
inappropriate and unnecessary.
Defendant appealed an order denying his petition for postconviction
relief (PCR) alleging ineffective assistance of
appellate counsel. Defendant argued that his appellate
counsel's failure to communicate with him regarding his appeal
constituted ineffective assistance of counsel per se. Secondly,
defendant sought to extend the holding in State v. Rue, 175 N.J.
1 (2002), to appellate counsel. In Rue, the Supreme Court held
that an attorney representing a defendant in a PCR petition is
required to communicate with his client, investigate the
client's claim, and advance all arguments requested by the
client.
We held that the two-prong Strickland analysis is to be
used in such cases and, therefore, that the failure to
communicate is not per se ineffective assistance of counsel. We
also declined to apply Rue to appellate counsel, finding it was
inappropriate and unnecessary.
State v. Marcus Cassady
10-26-07 A-6057-05T4
A jury found defendant guilty of robbery. Rejecting
defense counsel's claim that the jury could conclude that
defendant did not have the requisite purpose to put the bank
teller in fear of immediate bodily injury, the trial court
denied defendant's request for a jury instruction on theft.
Although the evidence was adequate to support defendant's
conviction for robbery, it also provided a rational basis for an
acquittal on that charge and conviction of theft. Accordingly,
we reverse.
Judge Fuentes is filing a dissent.
A jury found defendant guilty of robbery. Rejecting
defense counsel's claim that the jury could conclude that
defendant did not have the requisite purpose to put the bank
teller in fear of immediate bodily injury, the trial court
denied defendant's request for a jury instruction on theft.
Although the evidence was adequate to support defendant's
conviction for robbery, it also provided a rational basis for an
acquittal on that charge and conviction of theft. Accordingly,
we reverse.
Judge Fuentes is filing a dissent.
State v. Michele Dixon
10-24-07 A-2419-04T4
For purposes of the bias intimidation statute, N.J.S.A.
2C:16-1, the term "handicap" should be defined with reference to
the Law Against Discrimination, N.J.S.A. 10:5-5q, rather than by
using a dictionary definition of the term.
For purposes of the bias intimidation statute, N.J.S.A.
2C:16-1, the term "handicap" should be defined with reference to
the Law Against Discrimination, N.J.S.A. 10:5-5q, rather than by
using a dictionary definition of the term.
ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA General Practice, Solo and Small Firm Division American Bar Association
Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ
In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
____________________________________________________
1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.
Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.
The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.
In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]
The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)
In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).
Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.
In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.
Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.
The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test. Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.
The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.
Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.
The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.
However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.
In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).
The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.
Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has
appeared in Courts throughout New Jersey several times each week on personal injury matters, Municipal Court trials, and contested Probate hearings.
2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
WE PUBLISH YOUR FORMS AND ARTICLES
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Articles needed for American Bar Association Criminal Law Committee. Criminal Forms and articles sought plus tips on marketing and improving service to clients. Kenneth Vercammen of Edison serves as the Editor. Please email articles, suggestions or ideas you wish to share with others in the Criminal Law Committee. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. The ABA is increasing the frequency of publication of their email newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com
ABA General Practice, Solo and Small Firm Division American Bar Association
Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ
In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
____________________________________________________
1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.
Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.
The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.
In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]
The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)
In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).
Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.
In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.
Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.
The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test. Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.
The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.
Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.
The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.
However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.
In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).
The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.
Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has
appeared in Courts throughout New Jersey several times each week on personal injury matters, Municipal Court trials, and contested Probate hearings.
2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
WE PUBLISH YOUR FORMS AND ARTICLES
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Articles needed for American Bar Association Criminal Law Committee. Criminal Forms and articles sought plus tips on marketing and improving service to clients. Kenneth Vercammen of Edison serves as the Editor. Please email articles, suggestions or ideas you wish to share with others in the Criminal Law Committee. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. The ABA is increasing the frequency of publication of their email newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com
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