NJSBA Annual Meeting- Borgata Resort, Atlantic City
Thursday, May 17 10:30 a.m. - noon
Discussion of new DWI law with .08 BAC; the new 7110 breathalyzer testing machine; recent cases involving DWI or drugs; the refusal law and pending legislation; court rules to limit plea bargaining; blood test admissibility in a DWI or drug case suppression and other pre-trial motions.
Speakers:
Richard M. Keil, Esq.
Oakhurst
John Menzel, Esq.
Point Pleasant Beach
Kenneth A. Vercammen, Esq.
Kenneth Vercammen & Associates, Edison
Hon. Marilyn E. Williams
Newark Municipal Court
Sponsors: Municipal Court Practice Section
Criminal Law Section
General Practice Section
Young Lawyers Division
ICLE
Certified Trial Attorneys: 1.5 criminal credits pending
PA CLE: 1.5 substantive credits pending
NY CLE (Transitional/Non-transitional): 1.5 professional practice credits
One speaker will also provide updated information on the 7100 Alcotest Mark III MK breath test machine that will replace the
Breathalyzer Model 900 and 900A, used in New Jersey for the past thirty years. He will also discuss the science and operation of this new breath test machine, and consider its impact on breath testing in New Jersey. This information is critical for attorneys who represent plaintiffs or defendants in DWI matters.
Materials Provided to all Attendees:
Call NJSBA at 732-249-5000 for meeting registration details
For Sub-Lease: Office Space - 2053 Woodbridge Ave, Edison, NJ
Ideal for satellite office in fast growing Edison area, or for an Attorney, Financial Planner, Accountant, Insurance Agent, and other Business Professional.
The offices are located on the 1st floor of the building.
Front window office 12.1 x 7.5 - 90 square feet
connecting office 12.4 x 9.4 - 116 square feet
plus client use of joint reception room 16.6 x 7.2
$600 per month
Owner of building is local attorney, Kenneth Vercammen who handles Personal Injury, Elder Law, and Criminal Law.
The following is included with rental:
1. Lighting/ Utilities
2. Bathroom Supplies
3. Landscaping / Snow Removal
4. Cleaning of Common Area
5. cold water, hot water, municipal water/sewer charges
6. Use of conference table for meetings or depositions
7. Permit you to put a sign in the front window
8. Use of our audio tape and video library.
9. Use of the front room reception area
10. Use of 2nd floor conference room by appointment
We also have available additional approximately 700 square feet of office space for $1,000.00 per month
Call Kenneth Vercammen Law Office at 732-572-0500 to schedule an appointment.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Thursday, May 17, 2007
Alibi Rule Infringes on Defendant's Rights. State v. Bradshaw ___ NJ Super. ___ (App. Div. Decided April 2, 2007) A-4731-02T4.
The court held that the application of the notice of alibi rule, R. 3:12-2, to bar a defendant's own testimony as to his whereabouts at the time of a crime, because of his failure to comply with the rule, unconstitutionally infringes on defendant's state and federal right to testify, a right emanating from the due process and compulsory process guarantees. The court disagreed with contrary rulings in State v. Francis, 128 NJ Super. 346 (App. Div. 1974), and State v. Gonzalez, 223 NJ Super. 377 (App. Div.), certif. denied, 111 NJ 589 (1988). Combined with a highly objectionable summation by
the prosecutor, the error was not harmless. A new trial is required.
the prosecutor, the error was not harmless. A new trial is required.
Defendant Can Contest Lab Reports As Hearsay. State v. Kent 391 N.J. Super. 352 (App. Div. Decided March 22, 2007) A-3137-05T1.
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 reaffirms 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.
However 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.
Defendant's DWI conviction is affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.
The court reaffirms 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.
However 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.
Defendant's DWI conviction is affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.
Fireman & Police Now Have Right to Bring Claim if Injured Due to Negligence. Ruiz v. Mero 189 NJ 525 (2007).
N.J.S.A. 2A:62A-21 abolished the firefighter’s rule. First responders may recover damages from a property owner for any injury sustained when answering an emergency.
Fire Investigators Can Remain on Scene and Seize Items in Plain View. State v. Amodio 390 NJ Super 313 (App. Div. 2007).
In this matter, defendant was convicted of passion/provocation manslaughter, felony murder, arson and other offenses arising from the death of his girlfriend and her son in a fire at defendant's home. The court held that: 1) evidence obtained by the police and other officials in the fire-damaged home was properly seized without a warrant because the evidence was found during an investigation into the cause and origin of the fire, which was conducted within a reasonable time after the fire had been extinguished; and 2) the warrantless seizure of defendant's clothes was permissible because those garments had been removed from defendant in order to provide emergency medical assistance.
Receipt of Nine Checks Not a Criminal Enterprise to Deny PTI. State v. Watkins 390 NJ Super. 302 (App. Div. 2007).
In this appeal from a denial of defendant's appeal of his rejection from pre-trial intervention (PTI), The court addressed the meaning of PTI Guideline 3(i)(2), which directs consideration of whether the crime was "part of a continuing criminal business or enterprise". Reviewing the prior cases that have addressed this Guideline, The court concludes that the Prosecutor and the reviewing judge erroneously applied Guideline 3(i)(2) to the facts of this case which involved improper receipt of unemployment checks over a four-month period. Defendant's conduct did not possess the characteristics of a "business" or "enterprise" nor did it persist for a long enough period to be deemed "continuing," as that phrase has been applied in earlier cases. As a result, The court remanded to the Prosecutor for reconsideration of defendant's application without consideration of Guideline 3(i)(2).
DNA Testing of Juvenile Criminals Constitutional. A.A. v. Attorney General of New Jersey 189 NJ 129 (2007).
DNA test results lawfully obtained pursuant to the New Jersey DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17- 20.28, as amended, may be used to solve crimes committed prior to the taking of the DNA test.
DNA Testing of Criminals Does Not Violate Constitution. State v. O’Hagen 189 NJ 140 (2007).
The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1- 20.17-20.28, as amended, does not violate the rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Paragraphs 1 and 7 of the New Jersey Constitution.
If Billing Dispute, Customer Not Guilty of Shoplifting. State v. Goodmann 390 NJ Super. 259 (App. Div. 2007).
The court held that a customer who, following a billing dispute with Walgreens regarding the cost of photo processing, takes the finished photographs without paying for them, but gives his name and address to the store manager, cannot be found guilty of shoplifting. Photo processing constitutes a service, and therefore, Walgreens was not acting as a "merchant" when it contracted to develop the customer's film. Further, the photographs that Walgreens produced were not "merchandise," because they lacked value to anyone other the customer and were not salable.
The court also held that a customer, engaged in a billing dispute, who left contact information so that the dispute could be settled, cannot be found to have "purposely" taken possession of the "merchandise" with the intention of converting the same to his own use without "paying to the merchant the full retail value thereof."
The court also held that a customer, engaged in a billing dispute, who left contact information so that the dispute could be settled, cannot be found to have "purposely" taken possession of the "merchandise" with the intention of converting the same to his own use without "paying to the merchant the full retail value thereof."
1. Nurse Can Be Required to Testify in DWI Blood Case. State v. Renshaw 390 NJ Super. 456 (App. Div. 2007).
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.
Friday, April 27, 2007
Alibi Jury Charge
ALIBI1
The defendant as a part of (his/her) denial of guilt contends that (he/she) was not present
at the time and place that the crime was allegedly committed, but was somewhere else and
therefore could not possibly have committed or participated in the crime. Where a person must
be present at the scene of the crime to commit it, the burden of proving the defendant’s presence
beyond a reasonable doubt is upon the State. The defendant has neither the burden nor the duty
to show that (he/she) was elsewhere at the time and so could not have committed the offense.
You must determine, therefore, whether the State has proved each and every element of the
offense charged, including that of the defendant’s presence at the scene of the crime and (his/her)
participation in it.2
(CHARGE THE FOLLOWING PARAGRAPH ONLY WHERE APPROPRIATE:)
You have heard testimony about when (insert name of defendant or alibi witness) first
came forward with (his/her) account of what happened. I instruct you that (insert name of
defendant or alibi witness) had no obligation to provide an account at any time and there may be
many reasons for (his/her) not doing so.
[CHARGE THE FOLLOWING SENTENCE IF APPLICABLE:]
You will recall that the witness testified that ___________________________.
You may consider the evidence concerning when (he/she) came forward, and why (he/she) did
so at that time, only for the limited purpose of deciding whether it affects the credibility of
(his/her) account. You may not use the evidence to conclude that (insert name of defendant or
alibi witness) violated some obligation to come forward, because (he/she) had no duty to speak
on the subject with anyone.3
If, after a consideration of all of the evidence, including the evidence of the defendant’s
whereabouts at the time of the offense, you have a reasonable doubt as to whether (he/she)
1
Use of the pejorative word “alibi” should be avoided in the charge. See State v. Peetros, 45 N.J. 540, 553
(1965).
If the facts warrant it, defendant is entitled to the charge even in the absence of a request. State v. Searles,
82 N.J. Super. 210 (App. Div. 1964).
2
State v. Garvin, 44 N.J. 268, 272 (1965); State v. Ravenell, 43 N.J. 171, 187 (1964); State v. Driver, 38 N.J.
255, 290 (1962); State v. Mucci, 25 N.J. 423, 431 (1957).
3
State v. Silva, 131 N.J. 438, 451 (1993); State v. Brown, 118 N.J. 595, 616 & n.3 (1990).
ALIBI
PAGE 2 of 2
committed or participated in the crime, you must find the defendant not guilty. If, however, after
considering all of the evidence, you are convinced beyond a reasonable doubt of the defendant’s
presence at the scene of the crime and have concluded that the State has proved each and every
element of the offense charged in the indictment beyond a reasonable doubt, then you must find
the defendant guilty.
The defendant as a part of (his/her) denial of guilt contends that (he/she) was not present
at the time and place that the crime was allegedly committed, but was somewhere else and
therefore could not possibly have committed or participated in the crime. Where a person must
be present at the scene of the crime to commit it, the burden of proving the defendant’s presence
beyond a reasonable doubt is upon the State. The defendant has neither the burden nor the duty
to show that (he/she) was elsewhere at the time and so could not have committed the offense.
You must determine, therefore, whether the State has proved each and every element of the
offense charged, including that of the defendant’s presence at the scene of the crime and (his/her)
participation in it.2
(CHARGE THE FOLLOWING PARAGRAPH ONLY WHERE APPROPRIATE:)
You have heard testimony about when (insert name of defendant or alibi witness) first
came forward with (his/her) account of what happened. I instruct you that (insert name of
defendant or alibi witness) had no obligation to provide an account at any time and there may be
many reasons for (his/her) not doing so.
[CHARGE THE FOLLOWING SENTENCE IF APPLICABLE:]
You will recall that the witness testified that ___________________________.
You may consider the evidence concerning when (he/she) came forward, and why (he/she) did
so at that time, only for the limited purpose of deciding whether it affects the credibility of
(his/her) account. You may not use the evidence to conclude that (insert name of defendant or
alibi witness) violated some obligation to come forward, because (he/she) had no duty to speak
on the subject with anyone.3
If, after a consideration of all of the evidence, including the evidence of the defendant’s
whereabouts at the time of the offense, you have a reasonable doubt as to whether (he/she)
1
Use of the pejorative word “alibi” should be avoided in the charge. See State v. Peetros, 45 N.J. 540, 553
(1965).
If the facts warrant it, defendant is entitled to the charge even in the absence of a request. State v. Searles,
82 N.J. Super. 210 (App. Div. 1964).
2
State v. Garvin, 44 N.J. 268, 272 (1965); State v. Ravenell, 43 N.J. 171, 187 (1964); State v. Driver, 38 N.J.
255, 290 (1962); State v. Mucci, 25 N.J. 423, 431 (1957).
3
State v. Silva, 131 N.J. 438, 451 (1993); State v. Brown, 118 N.J. 595, 616 & n.3 (1990).
ALIBI
PAGE 2 of 2
committed or participated in the crime, you must find the defendant not guilty. If, however, after
considering all of the evidence, you are convinced beyond a reasonable doubt of the defendant’s
presence at the scene of the crime and have concluded that the State has proved each and every
element of the offense charged in the indictment beyond a reasonable doubt, then you must find
the defendant guilty.
ADDITION OR DISMISSAL OF CHARGES Jury charge
ADDITION OR DISMISSAL OF CHARGES1
When this trial began, I told you about the charges that were contained in the
indictment. I also explained that the indictment is not evidence but merely a written
document that brings the charges before a jury so that the jury can decide whether the
defendant has been proven guilty beyond a reasonable doubt.
As the judge of the law, it is my responsibility to review those charges with the
attorneys at the end of the case to decide which charges will be submitted to you for
deliberation. Sometimes, as a matter of law, I may determine that not every charge
within the indictment should be submitted to you; at other times, as a matter of law, I
may determine that certain charges not originally within the indictment should be
submitted to you for your deliberations.
[CHARGE IF APPROPRIATE]
Here, I have ruled that the original charge[s] of
will not be submitted to you for consideration.2
[CHARGE IF APPROPRIATE]
Here, I have ruled that the charge[s] of should
be submitted to you for consideration. You are to deliberate on this charge as though it
were within the original indictment. I will explain the elements of this charge and the
charges originally contained in the indictment later in my instructions.
1
This instruction should be given after the charge conference but before summations so that the
jury may better understand closing arguments that mention added or dismissed offenses.
2
Although the law is not settled, it may be proper in some cases to grant a defendant’s request to
advise the jury that the Court has granted a Judgment of Acquittal on one or more offenses charged in the
indictment.
You should not consider my ruling as an opinion by the Court on the merits of
any of the charges that you must consider. My ruling on this charge [these charges] was
based on matters of law and should not influence your deliberations. You are not to
consider for any purpose in arriving at your verdict, the fact that the Court may have
[added] [deleted] charges for your deliberation. You must decide whether the State has
proven the guilt of the defendant on each charge submitted to you by the evidence, which
is relevant and material to that particular charge based on final instructions of the law that
I will give you after the attorneys have completed their summations.
I have told you about this ruling now, so that, if the attorneys refer to my ruling
during summations, you will understand the reference more clearly.
[PROCEED TO DEFENSE CASE OR SUMMATIONS]
When this trial began, I told you about the charges that were contained in the
indictment. I also explained that the indictment is not evidence but merely a written
document that brings the charges before a jury so that the jury can decide whether the
defendant has been proven guilty beyond a reasonable doubt.
As the judge of the law, it is my responsibility to review those charges with the
attorneys at the end of the case to decide which charges will be submitted to you for
deliberation. Sometimes, as a matter of law, I may determine that not every charge
within the indictment should be submitted to you; at other times, as a matter of law, I
may determine that certain charges not originally within the indictment should be
submitted to you for your deliberations.
[CHARGE IF APPROPRIATE]
Here, I have ruled that the original charge[s] of
will not be submitted to you for consideration.2
[CHARGE IF APPROPRIATE]
Here, I have ruled that the charge[s] of should
be submitted to you for consideration. You are to deliberate on this charge as though it
were within the original indictment. I will explain the elements of this charge and the
charges originally contained in the indictment later in my instructions.
1
This instruction should be given after the charge conference but before summations so that the
jury may better understand closing arguments that mention added or dismissed offenses.
2
Although the law is not settled, it may be proper in some cases to grant a defendant’s request to
advise the jury that the Court has granted a Judgment of Acquittal on one or more offenses charged in the
indictment.
You should not consider my ruling as an opinion by the Court on the merits of
any of the charges that you must consider. My ruling on this charge [these charges] was
based on matters of law and should not influence your deliberations. You are not to
consider for any purpose in arriving at your verdict, the fact that the Court may have
[added] [deleted] charges for your deliberation. You must decide whether the State has
proven the guilt of the defendant on each charge submitted to you by the evidence, which
is relevant and material to that particular charge based on final instructions of the law that
I will give you after the attorneys have completed their summations.
I have told you about this ruling now, so that, if the attorneys refer to my ruling
during summations, you will understand the reference more clearly.
[PROCEED TO DEFENSE CASE OR SUMMATIONS]
Circumstantial Evidence
CIRCUMSTANTIAL EVIDENCE - Jury Instruction
You, as jurors, should find your facts from the evidence adduced during the trial.
Evidence may be either direct or circumstantial. Direct evidence means evidence that directly
proves a fact, without an inference, and which in itself, if true, conclusively establishes that fact.
On the other hand, circumstantial evidence means evidence that proves a fact from which an
inference of the existence of another fact may be drawn.
An inference is a deduction of fact that may logically and reasonably be drawn from
another fact or group of facts established by the evidence.
It is not necessary that facts be proved by direct evidence. They may be proved by
circumstantial evidence or by a combination of direct and circumstantial evidence. Both direct
and circumstantial evidence are acceptable as a means of proof. Indeed, in many cases,
circumstantial evidence may be more certain, satisfying and persuasive than direct evidence.
In any event, both circumstantial and direct evidence should be scrutinized and evaluated
carefully. A conviction may be based on circumstantial evidence alone or in combination with
direct evidence, provided, of course, that it convinces you of a defendant's guilt beyond a
reasonable doubt.
Conversely, if circumstantial evidence gives rise to a reasonable doubt in your minds as
to the defendant's guilt then the defendant must be found not guilty.
A simple illustration may be helpful. The following is one set of possible illustrations:
Optional Illustrations:
The problem is proving that it snowed during the night:
a) Direct Evidence: Testimony indicating that the witness observed snow falling
during the night.
b) Circumstantial Evidence: Testimony indicating that there was no snow on the
ground before the witness went to sleep, and that when he arose in the morning, it
was not snowing, but the ground was snow-covered.
The former directly goes to prove that fact that snow fell during the night; while the latter
establishes facts from which the inference that it snowed during the night can be drawn.
NOTE: For cases dealing with circumstantial evidence, see: State v. Corby, 28 N.J. 106
(1958); State v. Fiorello, 36 N.J. 80, 87-88 (1961), cert. denied 368 U.S. 967 (1962); State v.
Ray, 43 N.J. 19, 30-31 (1964); State v. Mills, 51 N.J. 277, 287 (1968) cert. denied 393 U.S. 186
(1969); State v. Franklin, 52 N.J. 386, 406 (1968); State v. Mayberry, 52 N.J. 413, 436-437
(1968), cert. denied 393 U.S. 1043, (1969); State v. Graziani, 60 N.J. Super. 1, 13-14 (App. Div.
1959), aff'd o.b. 31 N.J. 538 (1960), cert. denied 363 U.S. 830 (1960); State v. Hubbs, 70 N.J.
Super. 322, 328-329 (App. Div. 1961); State v. Papitsas, 80 N.J. Super. 420, 424 (App. Div.
1963).
You, as jurors, should find your facts from the evidence adduced during the trial.
Evidence may be either direct or circumstantial. Direct evidence means evidence that directly
proves a fact, without an inference, and which in itself, if true, conclusively establishes that fact.
On the other hand, circumstantial evidence means evidence that proves a fact from which an
inference of the existence of another fact may be drawn.
An inference is a deduction of fact that may logically and reasonably be drawn from
another fact or group of facts established by the evidence.
It is not necessary that facts be proved by direct evidence. They may be proved by
circumstantial evidence or by a combination of direct and circumstantial evidence. Both direct
and circumstantial evidence are acceptable as a means of proof. Indeed, in many cases,
circumstantial evidence may be more certain, satisfying and persuasive than direct evidence.
In any event, both circumstantial and direct evidence should be scrutinized and evaluated
carefully. A conviction may be based on circumstantial evidence alone or in combination with
direct evidence, provided, of course, that it convinces you of a defendant's guilt beyond a
reasonable doubt.
Conversely, if circumstantial evidence gives rise to a reasonable doubt in your minds as
to the defendant's guilt then the defendant must be found not guilty.
A simple illustration may be helpful. The following is one set of possible illustrations:
Optional Illustrations:
The problem is proving that it snowed during the night:
a) Direct Evidence: Testimony indicating that the witness observed snow falling
during the night.
b) Circumstantial Evidence: Testimony indicating that there was no snow on the
ground before the witness went to sleep, and that when he arose in the morning, it
was not snowing, but the ground was snow-covered.
The former directly goes to prove that fact that snow fell during the night; while the latter
establishes facts from which the inference that it snowed during the night can be drawn.
NOTE: For cases dealing with circumstantial evidence, see: State v. Corby, 28 N.J. 106
(1958); State v. Fiorello, 36 N.J. 80, 87-88 (1961), cert. denied 368 U.S. 967 (1962); State v.
Ray, 43 N.J. 19, 30-31 (1964); State v. Mills, 51 N.J. 277, 287 (1968) cert. denied 393 U.S. 186
(1969); State v. Franklin, 52 N.J. 386, 406 (1968); State v. Mayberry, 52 N.J. 413, 436-437
(1968), cert. denied 393 U.S. 1043, (1969); State v. Graziani, 60 N.J. Super. 1, 13-14 (App. Div.
1959), aff'd o.b. 31 N.J. 538 (1960), cert. denied 363 U.S. 830 (1960); State v. Hubbs, 70 N.J.
Super. 322, 328-329 (App. Div. 1961); State v. Papitsas, 80 N.J. Super. 420, 424 (App. Div.
1963).
PRESUMPTION OF INNOCENCE
Jury charge
This defendant(s), as are all defendants in criminal cases, is presumed to be innocent until
proven guilty beyond a reasonable doubt. That presumption continues throughout the whole trial
of the case and even during your deliberations unless and until you have determined that the
State has proven (his/her) guilt beyond a reasonable doubt.
This defendant(s), as are all defendants in criminal cases, is presumed to be innocent until
proven guilty beyond a reasonable doubt. That presumption continues throughout the whole trial
of the case and even during your deliberations unless and until you have determined that the
State has proven (his/her) guilt beyond a reasonable doubt.
Saturday, April 07, 2007
Customer not guilty of shoplifting if billing dispute
State of New Jersey v. Adam Goodmann A-1447-05T1
The court held that a customer who, following a billing dispute with Walgreens regarding the cost of photo processing, takes the finished photographs without paying for them, but gives his name and address to the store manager, cannot be found guilty of shoplifting. Photo processing constitutes a service, and therefore, Walgreens was not acting as a "merchant" when it contracted to develop the customer's film. Further, the photographs that Walgreens produced were not "merchandise," because they lacked value to anyone other the customer and were not salable.
The court also held that a customer, engaged in a billing dispute, who left contact information so that the dispute could be settled, cannot be found to have "purposely" taken possession of the "merchandise" with the intention of converting the same to his own use without "paying to the merchant the full retail value thereof."
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
The court held that a customer who, following a billing dispute with Walgreens regarding the cost of photo processing, takes the finished photographs without paying for them, but gives his name and address to the store manager, cannot be found guilty of shoplifting. Photo processing constitutes a service, and therefore, Walgreens was not acting as a "merchant" when it contracted to develop the customer's film. Further, the photographs that Walgreens produced were not "merchandise," because they lacked value to anyone other the customer and were not salable.
The court also held that a customer, engaged in a billing dispute, who left contact information so that the dispute could be settled, cannot be found to have "purposely" taken possession of the "merchandise" with the intention of converting the same to his own use without "paying to the merchant the full retail value thereof."
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Nurse may be required to testify in DWI
State of New Jersey v. Robert C. Renshaw A-0712-05T1
The Court 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.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
The Court 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.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Sunday, March 18, 2007
ABA CRIMINAL LAW COMMITTEE NEWSLETTER
General Practice, Solo and Small Firm Division:
March 2007
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.
Brian T Hermanson Ponca City, OK Chair (580) 762-0020
Kenneth Vercammen, Esq. Editor & Deputy Chair
In this Issue:
1. Sample CONFIDENTIAL CRIMINAL INTERVIEW FORM
2 Sample DWI Cross Examination Questions
3 WE PUBLISH YOUR ARTICLES AND FORMS
1. CONFIDENTIAL CRIMINAL INTERVIEW FORM
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 WOODBRIDGE AVENUE
EDISON, NJ 08817
732-572-0500
PLEASE PRINT
NAME ____________________________________________________
ADDRESS _________________________________________________
CITY _______________________ STATE ____ ZIP ______________
CELL #(_____)_________________ PHONE-DAY(____)________________
NIGHT (______)_________________
TODAY'S DATE ____/_____/_____ E-MAIL ________________________
Referred By: __________________________________
If referred by a person, is this a client or attorney?
CHARGES/TICKETS ISSUED [provide tickets, hearing notice and other important papers to front desk to be copied]
1. ____________________________________________________
2. ____________________________________________________
3. ____________________________________________________
4. ____________________________________________________
IMPORTANT INFORMATION
Date of Offense: __________________ Time: _____ (A.M./P.M.) Your Age _____
Town: ___________________________ (street/location)?____________________
What Happened: _________________________________________________
________________________________________________________________________________________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Write additional details on the back of this page. YOU MUST FILL OUT BOTH
PAGES PRIOR TO SEEING THE ATTORNEY.
Kenneth Vercammen, Esq. Confidential interview form page 2
Other Persons Arrested or Witnesses:
______________________ ______________________ _________________
co-defendant/ Witness Name Their Address Phone No.
What did you tell the police? ________________________________________
______________________________________________________________________________________________________________________________
Occupation: _____________ Employer: _______________ Town: ________
[Attach your business card to clipboard.]
Do you need your drivers license for work? ____ Distance driven to work: ____
Prior criminal arrests or convictions, even if charges dismissed (include description of each charge, date of arrest, and town/county of arrest. -If none, write none):
_____________________________________________________________________________________________________________________________________________________________________________________________
Prior motor vehicle convictions, town and year (ex: drunk driving, driving while suspended, no insurance, etc. -If none, write none): _____________________
_____________________________________________________________________________________________________________________________________________________________________________________________Prior Traffic ticket downgrades to no point tickets since 1999 [39:4-97.2]:
1. Town _______________________ Year ___________ [if none, write none]
2. Town _______________________ Year ___________
[Please note the DMV/MVC only permits 2 "no point" downgrades in 5 years.]
If you are not a US Citizen, please check here: ______
What questions do you have/ how can we help you and anything else important:
____________________________________________________
All new clients are entitled to receive our Free Email Newsletter featuring updates in Traffic Law, Criminal and Personal Injury. Please help yourself to all brochures in the reception area. If you have a business card, please attach it to the clipboard. All paid clients receive a T-shirt upon request. This page must be filled out before meeting with the attorney. Thank you.
Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a municipal court matter.
1. Legal Services To Be Provided- Please read!
We will review and research necessary statutes and caselaw, speak with the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services and at all times will seek to achieve solutions which are just and reasonable for you.
1. Office consultation with client
2. Preparation of statement to provide legal services [ retainer agreement setting forth fees and work to be performed;
3. Offer sound legal advice to client;
4. Preparation of letter of representation to Municipal Court after fee paid;
5. Preparation of letter of representation to Municipal Court Prosecutor;
6. Review documents supplied by client and court;
7. Copies of all correspondence to Court and Prosecutor to client;
8. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure;
9. Review of necessary statutes and case law;
10. Follow up with Municipal Prosecutor for discovery if suspension or jail is likely;
11. Prepare defense and mitigating factors;
12. Miscellaneous correspondence, drafting of brief/ pleadings if needed;
13. Review Court hearing notice and send letter to client to remind them of hearing
14. Travel to Municipal Court;
15. Representation in Municipal Court.
16. Preparation of End of Case Letter and client questionnaire.
17. Free Brochures provided on other legal topics such as Personal Injury, Worker's Comp, Wills, Probate and other matter we help clients
18. Free subscription to monthly e-mail newsletter.
19. Answer specific questions after the case is over
20. Free T-shirts, Magnets, Can Koozie, Stadium Cup, Free USA Keychains, USA Flag Calendar for clients - Please ask.
Legal Fees.
Fees must be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen Law Office today. Fees are to be paid at initial consultation (today). Fees must be paid in full prior to a Letter of Representation being sent to the Court. Neither this office nor other area attorneys accept payment plans if the fees are less than $2,500. Fees are not reduced and not negotiable. We cannot send a letter of representation to the court until the Retainer is paid in full. This is a non-refundable retainer/representation fee, pursuant to Superior Court decisions and New Jersey RPC.
What you should do: After you have retained [paid] your attorney, call the court, plead not guilty and give the court the name of your attorney. In traffic tickets, the phone number is on the back of the ticket.
Write your notes on the back of this paper during your interview.
2- Sample DWI Cross Examination Questions
By Kenneth Vercammen, Esq.
Editor- NJ Municipal Court Law Review and lecturer on DWI for both the NJ State Bar Association and NJ Police Chiefs Association
Probable Cause for Stop
1. No accident?
2. No criminal violation?
3. Traffic light per ticket?
4. According to Report-Not close to hitting other car
5. According to Report not endangering any person/property?
6. No details in report of driving willful on went to disregard of rights of others?
7. No ticket for lane violation?
8. No ticket for careless?
9. No reason to believe weapons?
10. No tip by reliable informant?
11. Pulled over my client without a warrant?
12. No Radar?
13. No Pace?
14. Could not have issued ticket for speeding?
Cross of Police Regarding Field Sobriety
15. Do you have documents describing how, under what conditions and by whom each test was given? Are you aware the National Highway Traffic Safety Administration has advice and instructions on giving the Field Sobriety Test.
15A. Walk and Turn
Your report does not say that you:
• Always begin by having the subject assume the heel-toe stance
• Verify that the subject understands that the stance is to be maintained while the instructions are given.
• If the subject breaks away from the stance as the instructions are given, cease giving instructions until the stance is resumed
• Tell the subject that he or she will be required to take 9 heel-to-toe steps down the line, to turn, and to take 9 heel-to-toe steps up the line.
• Demonstrate several heel-to-toe steps
• Demonstrate the turn
• Tell the subject to keep the arms at the sides, to watch the feet, to count the steps aloud, and not to stop walking until the test is completed.
• Ask the subject whether he or she understands; it not, re-explain whatever the subject doesn’t understand
• Tell the subject to begin
• If the subject staggers or stops, allow him or her to resume from the point of interruption; do not require the subject to start over from the beginning
• Cannot keep balance while listening to instructions (i.e., breaks away from the
heel-to-toe stance)
• Starts before instructions are finished
• Keeps balance but does not remember instructions
• Stops while walking to steady self
• Does not touch heel-to-toe while walking (i.e., misses by at least one-half inch)
• Loses balance while walking (i.e., steps off line)
• Uses arms for balance (i.e., raises arms by six inches or more)
• Loses balance while turning
• Incorrect number of steps
Are you aware the NHTSA states that officers should note in their reports how many times each of the eight clues appears. However, isn't it true the NHTSA for purposes of applying the standardized criterion, a clue should be “counted” only once, even if it appears more than once.
15B. One Leg Stand
Your report does not say you would:
• Tell the subject to stand with heels together, and arms at sides
• Tell the subject not to start the test until you say to do so
• Ask the subject whether he or she understands
• Tell the subject he or she will have to stand on one foot, with the other foot about six inches off the ground
• Demonstrate the stance
• Tell the subject to count from 1 to 30, by thousands
• Demonstrate the count, for several seconds
• Ask the subject whether he or she understands; if not, re-explain whatever is not understood
• Tell the subject to begin
• If the subject stops or puts the foot down, allow him or her to resume at the point of interruption; do not require the count to begin again at “one thousand and one”
• Swaying while balancing
• Uses arms to balance (i.e., raises arms from side six inches or more)
• Slightly uneasy
• Quite unsteady
• Starts before instructions are finished
• Puts foot down
• Hops
Are you aware the NHTSA states that there are the only four validated clues of One Leg Stand.
15C. Horizontal Gaze Nystagmus Test
Your report does not say:
• Hold the stimulus 12-15 inches in front of the subject’s face
• Keep the tip of the stimulus slightly above the subject’s face
• Always move the stimulus smoothly
• Always check for all three clues in both eyes
• Lack of smooth pursuit
• Distinct jerking at maximum deviation
• Onset of jerking within 45 degrees
Are you aware that no other “clues” are recognized by NHTSA as valid indicators of horizontal gaze nystagmus. In particular, NHTSA does not support that allegation that onset angle can reliably be used to estimate BAC, and considers any such estimation to be misuse of the horizontal gaze nystagmus test.
16. Documents describing test results?
17. Documents describing "test" results?
18. What are procedures to permit defendant to obtain independent tests of blood, breath or?
According to your Alcohol influence rep?
19. Section 25 of Alcohol Influence report, Able to walk, talk?
not falling
-not on hands and knees
-not staggering
20. According to Section 26, Ability to stand?
-no swaying
-no leaning for balance
-feet not wide apart
21. According to Section 27, Speech-not slurred?
-not incoherent
-not slobbering
-could understand what she was saying
22. Demeanor-cooperative, polite, calm?
23. Eyes watery now?
24. When is allergy season?
DWI Questions Regarding Under Influence
25. Did prosecutor or state supply an experts report?
26. Not a medical doctor?
27. No test of Pharmacological effects of any medications?
28. No direct measurement of the quantity of any medications or drugs in defendants blood?
29. Gas Chromatography/ Mass spectrometry can provide direct measurement of quality?
30. You don't have any gas Chromatography results with your blood?
31. Not licensed to prescribe medications?
32. Have not attended Medical School?
33. Not Qualified to Render a Medical Opinion
34. Do not have a Ph.D..?
35. Do not have a Masters degree in Chemistry
36. Do not have a BS degree in Chemistry?
[saved 100 Cross Exam Q-DWI Brendan articles 4/3/03]
_____________________________________________
Send Us Your Marketing Tips
Send us your short tips on your great or new successful marketing techniques.
3. WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
You can become a published ABA author. Enjoy your many ABA benefits.
General Practice, Solo and Small Firm Division:
CRIMINAL LAW COMMITTEE
Brian T Hermanson Ponca City, OK
Chair (580) 762-0020
KENNETH VERCAMMEN Deputy Chair
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
kenv@njlaws.com
March 2007
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.
Brian T Hermanson Ponca City, OK Chair (580) 762-0020
Kenneth Vercammen, Esq. Editor & Deputy Chair
In this Issue:
1. Sample CONFIDENTIAL CRIMINAL INTERVIEW FORM
2 Sample DWI Cross Examination Questions
3 WE PUBLISH YOUR ARTICLES AND FORMS
1. CONFIDENTIAL CRIMINAL INTERVIEW FORM
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 WOODBRIDGE AVENUE
EDISON, NJ 08817
732-572-0500
PLEASE PRINT
NAME ____________________________________________________
ADDRESS _________________________________________________
CITY _______________________ STATE ____ ZIP ______________
CELL #(_____)_________________ PHONE-DAY(____)________________
NIGHT (______)_________________
TODAY'S DATE ____/_____/_____ E-MAIL ________________________
Referred By: __________________________________
If referred by a person, is this a client or attorney?
CHARGES/TICKETS ISSUED [provide tickets, hearing notice and other important papers to front desk to be copied]
1. ____________________________________________________
2. ____________________________________________________
3. ____________________________________________________
4. ____________________________________________________
IMPORTANT INFORMATION
Date of Offense: __________________ Time: _____ (A.M./P.M.) Your Age _____
Town: ___________________________ (street/location)?____________________
What Happened: _________________________________________________
________________________________________________________________________________________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Write additional details on the back of this page. YOU MUST FILL OUT BOTH
PAGES PRIOR TO SEEING THE ATTORNEY.
Kenneth Vercammen, Esq. Confidential interview form page 2
Other Persons Arrested or Witnesses:
______________________ ______________________ _________________
co-defendant/ Witness Name Their Address Phone No.
What did you tell the police? ________________________________________
______________________________________________________________________________________________________________________________
Occupation: _____________ Employer: _______________ Town: ________
[Attach your business card to clipboard.]
Do you need your drivers license for work? ____ Distance driven to work: ____
Prior criminal arrests or convictions, even if charges dismissed (include description of each charge, date of arrest, and town/county of arrest. -If none, write none):
_____________________________________________________________________________________________________________________________________________________________________________________________
Prior motor vehicle convictions, town and year (ex: drunk driving, driving while suspended, no insurance, etc. -If none, write none): _____________________
_____________________________________________________________________________________________________________________________________________________________________________________________Prior Traffic ticket downgrades to no point tickets since 1999 [39:4-97.2]:
1. Town _______________________ Year ___________ [if none, write none]
2. Town _______________________ Year ___________
[Please note the DMV/MVC only permits 2 "no point" downgrades in 5 years.]
If you are not a US Citizen, please check here: ______
What questions do you have/ how can we help you and anything else important:
____________________________________________________
All new clients are entitled to receive our Free Email Newsletter featuring updates in Traffic Law, Criminal and Personal Injury. Please help yourself to all brochures in the reception area. If you have a business card, please attach it to the clipboard. All paid clients receive a T-shirt upon request. This page must be filled out before meeting with the attorney. Thank you.
Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a municipal court matter.
1. Legal Services To Be Provided- Please read!
We will review and research necessary statutes and caselaw, speak with the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services and at all times will seek to achieve solutions which are just and reasonable for you.
1. Office consultation with client
2. Preparation of statement to provide legal services [ retainer agreement setting forth fees and work to be performed;
3. Offer sound legal advice to client;
4. Preparation of letter of representation to Municipal Court after fee paid;
5. Preparation of letter of representation to Municipal Court Prosecutor;
6. Review documents supplied by client and court;
7. Copies of all correspondence to Court and Prosecutor to client;
8. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure;
9. Review of necessary statutes and case law;
10. Follow up with Municipal Prosecutor for discovery if suspension or jail is likely;
11. Prepare defense and mitigating factors;
12. Miscellaneous correspondence, drafting of brief/ pleadings if needed;
13. Review Court hearing notice and send letter to client to remind them of hearing
14. Travel to Municipal Court;
15. Representation in Municipal Court.
16. Preparation of End of Case Letter and client questionnaire.
17. Free Brochures provided on other legal topics such as Personal Injury, Worker's Comp, Wills, Probate and other matter we help clients
18. Free subscription to monthly e-mail newsletter.
19. Answer specific questions after the case is over
20. Free T-shirts, Magnets, Can Koozie, Stadium Cup, Free USA Keychains, USA Flag Calendar for clients - Please ask.
Legal Fees.
Fees must be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen Law Office today. Fees are to be paid at initial consultation (today). Fees must be paid in full prior to a Letter of Representation being sent to the Court. Neither this office nor other area attorneys accept payment plans if the fees are less than $2,500. Fees are not reduced and not negotiable. We cannot send a letter of representation to the court until the Retainer is paid in full. This is a non-refundable retainer/representation fee, pursuant to Superior Court decisions and New Jersey RPC.
What you should do: After you have retained [paid] your attorney, call the court, plead not guilty and give the court the name of your attorney. In traffic tickets, the phone number is on the back of the ticket.
Write your notes on the back of this paper during your interview.
2- Sample DWI Cross Examination Questions
By Kenneth Vercammen, Esq.
Editor- NJ Municipal Court Law Review and lecturer on DWI for both the NJ State Bar Association and NJ Police Chiefs Association
Probable Cause for Stop
1. No accident?
2. No criminal violation?
3. Traffic light per ticket?
4. According to Report-Not close to hitting other car
5. According to Report not endangering any person/property?
6. No details in report of driving willful on went to disregard of rights of others?
7. No ticket for lane violation?
8. No ticket for careless?
9. No reason to believe weapons?
10. No tip by reliable informant?
11. Pulled over my client without a warrant?
12. No Radar?
13. No Pace?
14. Could not have issued ticket for speeding?
Cross of Police Regarding Field Sobriety
15. Do you have documents describing how, under what conditions and by whom each test was given? Are you aware the National Highway Traffic Safety Administration has advice and instructions on giving the Field Sobriety Test.
15A. Walk and Turn
Your report does not say that you:
• Always begin by having the subject assume the heel-toe stance
• Verify that the subject understands that the stance is to be maintained while the instructions are given.
• If the subject breaks away from the stance as the instructions are given, cease giving instructions until the stance is resumed
• Tell the subject that he or she will be required to take 9 heel-to-toe steps down the line, to turn, and to take 9 heel-to-toe steps up the line.
• Demonstrate several heel-to-toe steps
• Demonstrate the turn
• Tell the subject to keep the arms at the sides, to watch the feet, to count the steps aloud, and not to stop walking until the test is completed.
• Ask the subject whether he or she understands; it not, re-explain whatever the subject doesn’t understand
• Tell the subject to begin
• If the subject staggers or stops, allow him or her to resume from the point of interruption; do not require the subject to start over from the beginning
• Cannot keep balance while listening to instructions (i.e., breaks away from the
heel-to-toe stance)
• Starts before instructions are finished
• Keeps balance but does not remember instructions
• Stops while walking to steady self
• Does not touch heel-to-toe while walking (i.e., misses by at least one-half inch)
• Loses balance while walking (i.e., steps off line)
• Uses arms for balance (i.e., raises arms by six inches or more)
• Loses balance while turning
• Incorrect number of steps
Are you aware the NHTSA states that officers should note in their reports how many times each of the eight clues appears. However, isn't it true the NHTSA for purposes of applying the standardized criterion, a clue should be “counted” only once, even if it appears more than once.
15B. One Leg Stand
Your report does not say you would:
• Tell the subject to stand with heels together, and arms at sides
• Tell the subject not to start the test until you say to do so
• Ask the subject whether he or she understands
• Tell the subject he or she will have to stand on one foot, with the other foot about six inches off the ground
• Demonstrate the stance
• Tell the subject to count from 1 to 30, by thousands
• Demonstrate the count, for several seconds
• Ask the subject whether he or she understands; if not, re-explain whatever is not understood
• Tell the subject to begin
• If the subject stops or puts the foot down, allow him or her to resume at the point of interruption; do not require the count to begin again at “one thousand and one”
• Swaying while balancing
• Uses arms to balance (i.e., raises arms from side six inches or more)
• Slightly uneasy
• Quite unsteady
• Starts before instructions are finished
• Puts foot down
• Hops
Are you aware the NHTSA states that there are the only four validated clues of One Leg Stand.
15C. Horizontal Gaze Nystagmus Test
Your report does not say:
• Hold the stimulus 12-15 inches in front of the subject’s face
• Keep the tip of the stimulus slightly above the subject’s face
• Always move the stimulus smoothly
• Always check for all three clues in both eyes
• Lack of smooth pursuit
• Distinct jerking at maximum deviation
• Onset of jerking within 45 degrees
Are you aware that no other “clues” are recognized by NHTSA as valid indicators of horizontal gaze nystagmus. In particular, NHTSA does not support that allegation that onset angle can reliably be used to estimate BAC, and considers any such estimation to be misuse of the horizontal gaze nystagmus test.
16. Documents describing test results?
17. Documents describing "test" results?
18. What are procedures to permit defendant to obtain independent tests of blood, breath or?
According to your Alcohol influence rep?
19. Section 25 of Alcohol Influence report, Able to walk, talk?
not falling
-not on hands and knees
-not staggering
20. According to Section 26, Ability to stand?
-no swaying
-no leaning for balance
-feet not wide apart
21. According to Section 27, Speech-not slurred?
-not incoherent
-not slobbering
-could understand what she was saying
22. Demeanor-cooperative, polite, calm?
23. Eyes watery now?
24. When is allergy season?
DWI Questions Regarding Under Influence
25. Did prosecutor or state supply an experts report?
26. Not a medical doctor?
27. No test of Pharmacological effects of any medications?
28. No direct measurement of the quantity of any medications or drugs in defendants blood?
29. Gas Chromatography/ Mass spectrometry can provide direct measurement of quality?
30. You don't have any gas Chromatography results with your blood?
31. Not licensed to prescribe medications?
32. Have not attended Medical School?
33. Not Qualified to Render a Medical Opinion
34. Do not have a Ph.D..?
35. Do not have a Masters degree in Chemistry
36. Do not have a BS degree in Chemistry?
[saved 100 Cross Exam Q-DWI Brendan articles 4/3/03]
_____________________________________________
Send Us Your Marketing Tips
Send us your short tips on your great or new successful marketing techniques.
3. WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
You can become a published ABA author. Enjoy your many ABA benefits.
General Practice, Solo and Small Firm Division:
CRIMINAL LAW COMMITTEE
Brian T Hermanson Ponca City, OK
Chair (580) 762-0020
KENNETH VERCAMMEN Deputy Chair
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
kenv@njlaws.com
Thursday, March 08, 2007
New criminal case: Two-stage interrogation not objectionable. State v. O'Neill 388 N.J. Super. 135 (App. Div. 2006)
The court reject defendant's claim that the two tape-recorded statements he made to the police should have been suppressed because they were the product of a two-stage interrogation technique (question-first, warn-later) found to be improper by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Monday, February 26, 2007
Police can ask for consent of home. State v. Domicz 188 N.J. 285 (2006)
The court held Under the circumstances, the warrantless thermal scan and seizure of electricity records did not constitute prior unlawful conduct that could tainted the later search. Grand jury subpoena procedures adequately protect any privacy interest in utility records. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds
Kenneth Vercammen's NJ Laws email newsletter E238
February 25, 2007
In this issue:
1. New law Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds where defendant is charged with crime with bail restrictions.
2- HELP WANTED HTML Clerk to set up webpages
3 Wills, The New Probate Law & Estate Administration Program- last chance to attend Monday, March 19, 2007 7 - 8:30 P.M.
1. Governor Jon S. Corzine also took action on the following legislation. NEW LAWS SIGNED:
A-2987/S-2012 (Watson Coleman, Steele, Johnson, Chivukula, Conaway/Turner, Girgenti) – Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds where defendant is charged with crime with bail restrictions.
2- HELP WANTED HTML Clerk to set up webpages
Law Office Edison
Growing Law Office needs Clerk to update website and help with law office. We sponsor a state wide website with information on litigation, personal injury, criminal and probate matters. Clerk/ programmer needed to update website. Applicants must have familiarity with HTML programming, web page design/ maintenance and Internet technology. If you can update a website, this is the job for you. Please indicate so in the first paragraph of your cover letter. $10.00 an hour start. Work 20 hours per week Monday- Thursday. You select the hours. Fax resume & cover letter to the Law Office of Kenneth Fax 732-572-0030
Great opportunity to obtain legal experience.
GENERAL DUTIES [Not included in Crit advertisement]
-General Office duties in Law Office
-Update mailing/ client lists and learn marketing
-Prepare correspondence to Law Journals and New Jersey Media with
Revised .-Provide copies of published articles to Judges, Prosecutors and other
New Jersey professionals.
-Ideal for person interested in the legal field, law enforcement or public relations/ media
-Occasional Telephone Answering
Must be dependable and committed to perfection for clients
Kenneth A. Vercammen, Esq.
3. Wills, The New Probate Law, Estate Administration & Elder Law
New Probate Law Effective 2006!
WHERE: Edison High School Community Adult Education
WHEN: Monday, March 19, 2007 7 - 8:30 P.M.
Please note, the Edison Board of Education is discontinuing its Community Adult Education program. This is your last opportunity to attend.
SPEAKER: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
- So you don't have a Will. You won't live forever and you can't take it with you. What should you do?
Main Topics:
1. Wills and the 2006 changes to the NJ Probate Law
2. Power of Attorney
3. Living Will
4. Administering the Estate/ Probate/Surrogate
5. Estate Planning
6. Revocable Trusts/ Irrevocable Trusts
7. Federal HIPAA Regulations on release of medical info
8. Federal Estate Tax
9. Question and Answer
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.njlaws.com.
EDISON COMMUNITY ADULT SCHOOL.
EDISON HIGH SCHOOL, Room 193, 50 Blvd. of Eagles, Edison, NJ
732-452-4574 John Russell, Director
-Free for Edison Seniors who pre register
$25 registration fee required by adult school for all others. Call the Adult Education Office for registration information 732-452-4574
Upcoming charity races:
3/18/2007 St. Paddy's 10 Mile Race & Leprechuan 5k 10 mile 10am, 5k, 10:15am Freehold NJ 732-431-2627 Free beer, Free food, long sleeve shirt USATF Sponsored by Freehold Area Running Club FARC www.farcnj.com
3/24/2007 CASC 5K 9:30 Hightstown NJ 732-742-6868
For more events visit www.metrorace.com
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
February 25, 2007
In this issue:
1. New law Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds where defendant is charged with crime with bail restrictions.
2- HELP WANTED HTML Clerk to set up webpages
3 Wills, The New Probate Law & Estate Administration Program- last chance to attend Monday, March 19, 2007 7 - 8:30 P.M.
1. Governor Jon S. Corzine also took action on the following legislation. NEW LAWS SIGNED:
A-2987/S-2012 (Watson Coleman, Steele, Johnson, Chivukula, Conaway/Turner, Girgenti) – Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds where defendant is charged with crime with bail restrictions.
2- HELP WANTED HTML Clerk to set up webpages
Law Office Edison
Growing Law Office needs Clerk to update website and help with law office. We sponsor a state wide website with information on litigation, personal injury, criminal and probate matters. Clerk/ programmer needed to update website. Applicants must have familiarity with HTML programming, web page design/ maintenance and Internet technology. If you can update a website, this is the job for you. Please indicate so in the first paragraph of your cover letter. $10.00 an hour start. Work 20 hours per week Monday- Thursday. You select the hours. Fax resume & cover letter to the Law Office of Kenneth Fax 732-572-0030
Great opportunity to obtain legal experience.
GENERAL DUTIES [Not included in Crit advertisement]
-General Office duties in Law Office
-Update mailing/ client lists and learn marketing
-Prepare correspondence to Law Journals and New Jersey Media with
Revised .-Provide copies of published articles to Judges, Prosecutors and other
New Jersey professionals.
-Ideal for person interested in the legal field, law enforcement or public relations/ media
-Occasional Telephone Answering
Must be dependable and committed to perfection for clients
Kenneth A. Vercammen, Esq.
3. Wills, The New Probate Law, Estate Administration & Elder Law
New Probate Law Effective 2006!
WHERE: Edison High School Community Adult Education
WHEN: Monday, March 19, 2007 7 - 8:30 P.M.
Please note, the Edison Board of Education is discontinuing its Community Adult Education program. This is your last opportunity to attend.
SPEAKER: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
- So you don't have a Will. You won't live forever and you can't take it with you. What should you do?
Main Topics:
1. Wills and the 2006 changes to the NJ Probate Law
2. Power of Attorney
3. Living Will
4. Administering the Estate/ Probate/Surrogate
5. Estate Planning
6. Revocable Trusts/ Irrevocable Trusts
7. Federal HIPAA Regulations on release of medical info
8. Federal Estate Tax
9. Question and Answer
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.njlaws.com.
EDISON COMMUNITY ADULT SCHOOL.
EDISON HIGH SCHOOL, Room 193, 50 Blvd. of Eagles, Edison, NJ
732-452-4574 John Russell, Director
-Free for Edison Seniors who pre register
$25 registration fee required by adult school for all others. Call the Adult Education Office for registration information 732-452-4574
Upcoming charity races:
3/18/2007 St. Paddy's 10 Mile Race & Leprechuan 5k 10 mile 10am, 5k, 10:15am Freehold NJ 732-431-2627 Free beer, Free food, long sleeve shirt USATF Sponsored by Freehold Area Running Club FARC www.farcnj.com
3/24/2007 CASC 5K 9:30 Hightstown NJ 732-742-6868
For more events visit www.metrorace.com
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
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