State v. Rene M. Rodriguez (081046) (Camden County and Statewide) (A-80-17

State v. Rene M. Rodriguez (081046) (Camden County and Statewide) (A-80-17; 081046)

An individual sentenced to a fixed minimum term of parole ineligibility under N.J.S.A. 2C:40-26(c) may not serve his or her sentence intermittently at night or on weekends pursuant to N.J.S.A. 2C:43-2(b)(7).

State v. Noel E. Ferguson and Anthony M. Potts; State v. Shameik Byrd (081423) (Passaic County and Statewide) (A-8/9-18

State v. Noel E. Ferguson and Anthony M. Potts; State v. Shameik Byrd (081423) (Passaic County and Statewide) (A-8/9-18; 081423)

New Jersey does not have territorial jurisdiction to prosecute Ferguson, Potts, or Byrd for the drug-induced death of Cabral in New York.

STEPHEN D. PERRY VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) (A-1338-17T4)

STEPHEN D. PERRY VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) (A-1338-17T4)

Appellant was serving a life sentence imposed in 1979 for murder, and a consecutive four-year term of incarceration imposed in 2003, for a 2001 drug offense committed during his incarceration. When appellant became parole eligible, the Parole Board aggregated his sentences pursuant to N.J.S.A. 30:4-123.51(h), denied appellant parole, and imposed a 240-month future eligibility term (FET).

The Legislature amended N.J.S.A. 30:4-123.53, promulgating a new standard for parole eligibility for offenses committed after August 18, 1997. Prior to the amendment, the Board could deny parole release if it appeared from a preponderance of the evidence that there is a substantial likelihood the inmate will commit a crime under the laws of this State if released on parole at such time. Following the amendment, the parole eligibility standard changed and now states the Board may deny parole where it appears by a preponderance of the evidence the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation the inmate will violate conditions of parole if released on parole at that time

The question on appeal is what standard for parole eligibility should apply where a parole eligible inmate is serving sentences for offenses committed before and after the effective date of the statute promulgating the new standard. The court holds the new standard does not apply to parole determinations for inmates eligible for parole who are serving sentences entered prior to August 18, 1997. The Board must determine parole eligibility for such inmates by considering the pre-amendment standard.

The court remanded the matter to the Board to reconsider its decision applying the proper standard. The court also directed the Board to correlate its findings with the length of the FET imposed, considering the sentence for the 2001 offense, which drew the lengthy FET, was just four years.

STATE OF NEW JERSEY VS. DEANDRE PARKER

STATE OF NEW JERSEY VS. DEANDRE PARKER (16-04-1096 AND 16-04-1097, ESSEX COUNTY AND STATEWIDE) (A-2026-17T2)

Defendant is charged with second degree unlawful possession of a handgun and related charges. The trial court granted defendant's motion to suppress the physical evidence without conducting an evidentiary hearing or considering oral argument from counsel. This court granted the State's motion for leave to appeal and now reverses the trial court's ruling. Pursuant to Rule 3:5-7(c), "[i]f material facts are disputed, testimony thereon shall be taken in open court." When the material facts are contested, the parties must be given the opportunity to probe the veracity of the State's witnesses.

State in the Interest of D.M., a Juvenile

State in the Interest of D.M., a Juvenile (079999) (Union County and Statewide) (A-30-17; 079999)

Although the Legislature may decide that N.J.S.A. 2C:24-4(a)(1) should not apply in juvenile proceedings based on conduct such as that at issue here, nothing in the current text of that statute precludes the adjudication in this case. The Court declines to rewrite the statute’s plain language in this appeal. However, the Family Part court’s adjudication must be reversed because the court’s disavowal, at the disposition hearing, of critical aspects of its previously-stated factual findings undermined its determination as to both offenses. In this extraordinary setting, it is unclear whether the State met its burden to prove beyond a reasonable doubt that D.M. violated N.J.S.A. 2C:24-4(a)(1). Accordingly, the Court affirms on other grounds the panel’s judgment.

State v. Shaw

State v.   Shaw (A-33/34-16) (078247) Argued January 28, 2019 -- Decided May 13, 2019 

TIMPONE, J., writing for the Court. 

In this case, the Court considers whether evidence found in a motel room and vehicle and defendant Nathan Shaw’s statement to police should have been suppressed. 

Jasmine Hanson was staying at the Crystal Inn motel in Neptune City. She called the front desk to complain she had been bitten by bed bugs. The motel owner inspected Hanson’s room using his pass key. He saw a plastic bag containing what he suspected were narcotics and called the police. Officer Jason Rademacher had the motel owner lead him to Hanson’s room where, again using his pass key, the motel owner unlocked the door for the officer to enter. Inside, Rademacher saw what appeared to be drugs, as well as a measuring cup and scale. A criminal history check on Hanson revealed an outstanding traffic warrant and a recently issued traffic summons on a 2012 black Chevrolet Tahoe, and its plate number. 

Rademacher transported the evidence to the station and returned in an unmarked vehicle to wait for Hanson’s arrival. Shortly thereafter, the black Tahoe pulled into a parking space. The front passenger was Keon Bolden, Hanson was in the driver’s seat, and in the back seat were Shakera Dickerson and Shaw. Rademacher arrested Hanson. The officer asked to search the Tahoe; Hanson refused consent. A drug-detection canine was brought to perform an exterior sniff of the vehicle. The officers conducted warrant checks on the remaining passengers. Only Dickerson’s came back positive. She was arrested and placed in a second patrol car. Shaw and Bolden were patted down and seated in separate patrol cars, uncuffed. Hanson again refused to consent to a search of the vehicle. 

The handler led the canine to the Tahoe. Shaw told an officer that he had a bag of marijuana in the car, and the canine alerted to the presence of narcotics. Shaw was arrested. An officer told Hanson that Shaw admitted he had marijuana in the vehicle and, at that point, she consented to the vehicle search. She signed a consent-to-search form, but did not initial the line attesting that she gave her consent free of coercion. 

The officers found drugs in the car and within a tote bag on the back seat of the car. All four passengers were charged with multiple counts of possession and possession with intent to distribute the drugs found in both the motel room and the tote bag. 

All defendants moved to suppress the drug evidence seized from the motel room and the Tahoe. The motion court denied their suppression motion. Shaw pleaded guilty to one count of third-degree possession of CDS with intent to distribute. 

The Appellate Division affirmed the denial of Shaw’s motion to suppress the contents of the tote bag, finding he lacked standing to challenge its search, but reversed the denial of his motion to suppress his statement made to police while in their custody. In response to an argument by a co-defendant, the panel also found that the warrantless search of the motel room was illegal. 

The Court granted Shaw’s petition for certification, 228 N.J. 506 (2017), and the State’s cross-petition, 228 N.J. 518 (2017). Following oral argument on November 8, 2017, the Court ordered this case remanded to the Law Division for the court “to address the application of the inevitable discovery doctrine and the independent source doctrine to the admissibility of the evidence seized in the motor vehicle.” 

On remand, the parties presented no further testimony. Relying on the record as it had been developed at the suppression hearing, the court determined the inevitable discovery and the independent source doctrines both applied and that the evidence was admissible. 

HELD:Defendant’s confession and the drug evidence must be suppressed. 

1. Under the third-party intervention doctrine, a person’s reasonable expectation of privacy is not violated by the actions or search of a private actor. See State v. Wright, 221 N.J. 456, 459 (2015). Fourth Amendment protections apply only to governmental action, and a subsequent search by law enforcement -- so long as it does not exceed the scope of the private search -- may not require a warrant if it does not infringe any constitutionally protected privacy interest that had not already been frustrated as a result of the private conduct. The doctrine traditionally applied to searches of objects either physically conveyed or reported to the police. See id. at 459, 468-69. In Wright, the Court held that the doctrine could not be applied to searches of private dwellings -- including rented apartments -- under our State Constitution. Id. at 476. Although Wright discussed apartments, its reasoning applies with equal force to motel rooms. Where a motel owner or employee finds contraband in a guest’s room, “the police can use that information to obtain a search warrant and then conduct a search.” Id. at 478-79. “In the time it takes to get the warrant, police officers can secure the [motel room] from the outside, for a reasonable period of time, if reasonably necessary to avoid any tampering with or destruction of evidence.” Id. at 478. Here, the motel search was unconstitutional and the illegal fruits of that search must be suppressed.   

2. Police must have particularized suspicion in order to conduct an investigatory stop, and the duration of an investigative stop must be limited in time and scope to the purpose that justified the stop in the first place. If the officer’s conduct is more intrusive than necessary, the investigative stop turns into a de facto arrest. Once it was determined that Shaw was 

unarmed and had no outstanding warrants, there was no particularized suspicion that Shaw was engaged in criminal activity that would justify Shaw’s further detention. Under the circumstances here, isolating Shaw in the back of a patrol car despite a negative warrant check was a de facto and an unlawful arrest.   

3. It was during that period of unlawful detention that Shaw stated there was marijuana in the bag. To decide whether to suppress a statement obtained after an unlawful arrest, courts consider three factors: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. Here, Shaw’s confession was a product of his unlawful de facto arrest and must be suppressed. Shaw’s confession occurred during his unlawful detention, and the Court is not persuaded that the presence of the drug-detection canine purged the taint of the illegal arrest. Shaw was never informed of his right to remain silent and was held without individualized suspicion. Although his confession was not made in response to an interrogation, the Court is not convinced it was a product of his own free will.   

4. The Court next addresses Shaw’s standing to challenge the search of the tote bag. Whenever a defendant is charged with committing a possessory drug offense -- as in this case -- standing is automatic, unless the State can show that the property was abandoned or the accused was a trespasser. The tote bag was found in the back seat of a car that had four occupants. They were ordered out of the car. The State simply has not established that the bag was abandoned property. The trespasser exception has even less relevancy. The record is devoid of any evidence that Shaw put the drugs in the tote bag without Dickerson’s knowledge. Shaw had automatic standing to challenge the search of the bag.   

5. The Court thus considers whether the search fell within the consent-search exception to the warrant requirement. An individual’s voluntary consent to search a constitutionally protected area eliminates the need for law enforcement to obtain a warrant. When Hanson consented to the search, she had already been arrested and handcuffed. The officers asked her multiple times for consent to search the vehicle. She relented only after an officer informed her of Shaw’s unlawfully obtained confession. The warrantless search of the Tahoe was unconstitutional and the evidence seized through that search is therefore subject to suppression. Nor can the evidence come in through Shaw’s confession.  

6. The State failed to make the necessary showing under either inevitable discovery or the independent source exceptions to the exclusionary rule. Accordingly, the unconstitutionally obtained evidence remains suppressed.   

The judgment of the Appellate Division is affirmed in part and reversed in part and the matter is remanded to the trial court. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’S opinion. 

Spring 2019 NJ Municipal Court Law Review

Spring 2019 NJ Municipal Court Law Review 

Index

1. Police can’t detain occupants on noise complaint State v Chisum  

2. Guilty finding vacated based on state failure to provide evidence State v. Brown

3. Refusal to let police into home is not criminal interference State v. Fede  

4 Miranda violated here where detectives failed to advise subject of charges State v. Vincenty

5. Chief Justice Orders Special Master in the DWI cases involving the trooper who did not conduct correct tests.State v. Cassidy

6. Company & lawyer can’t use criminal prosecution for civil benefit In the Matter of Helmer  

7. Drug court grads entitled to presumption of expungement IMO the Expungement of the Arrest/Charge Records of T.B 
8. Annual Jersey Shore Happy Hour & Networking Social
July 12, 2019

9. Photos Handling Drug, DWI and Serious Cases in Municipal Court Seminar 

10. Photo NJSBA President John Keefe Jr. and Ken V at NJ Bar meeting Rome 

11. Bob Carlson ABA president at ABA meeting Las Vegas 

12. Judy Perry Martinez ABA President Elect at ABA meeting Las Vegas 

13. Jack Canfield Best selling author Chicken Soup for Soul and Ken Vercammen ABA Author at Charleston Leadership conference 
14. Office Space Available

1. Police can’t detain occupants on noise complaint State v Chisum  

Once the renter of the motel room lowered the volume of the music and the police declined to issue summonses, the police no longer had any reasonable suspicion that would justify the continued detention of the room’s occupants. Once the noise was abated, the police no longer had an independent basis to detain the occupants, or a basis to run warrant checks on them. Such action was unlawful. And because the detention and warrant checks were unlawful, the subsequent pat down of Woodard was also improper. The judgment of the Appellate Division is therefore reversed, and the matter is remanded to the trial court for the withdrawal of defendants’ guilty pleas and further proceedings. (A-35-17/A-36-17; 079823/079835)

2. Guilty finding vacated based on state failure to provide evidence State v. Brown

The State’s failure to produce nineteen discovery items until one week after the beginning of defendants’ murder trial did violate defendants’ due process rights under Brady. The Court reaches this conclusion, in part, because the trial court abused its discretion by excluding admissible impeachment and exculpatory evidence withheld by the State. Though there is no evidence or allegation that the State acted in bad faith or intentionally in failing to timely produce the discoverable material, the Court nonetheless vacates defendants’ convictions and remands for a new trial because defendants were deprived of a fair trial. A-23-17/A-24-17; 079553/079556)

3. Refusal to let police into home is not criminal interference State v. Fede  

The Court stresses that the police officers had the right to enter defendant’s home under the emergency-aid doctrine, which permits warrantless entry under circumstances like those presented in this case. Because defendant’s refusal to remove the door chain did not constitute an affirmative interference for purposes of obstructing justice within the meaning of the obstruction statute, the Court reverses the judgment of the Appellate Division and vacates defendant’s conviction. (A-53-17)

4. Miranda violated here where detectives failed to advise subject of charges State v. Vincenty__ NJ __ (2019)

The record reveals that the detectives failed to inform Vincenty of the charges filed against him when they read him his rights and asked him to waive his right against self-incrimination. That failure deprived Vincenty of the ability to knowingly and intelligently waive his right against self-incrimination. Pursuant to A.G.D., Vincenty’s motion to suppress should have been granted. (A-40-17) 

5. Chief Justice Orders Special Master in the DWI cases involving the trooper who did not conduct correct tests.State v. Cassidy

  WHEREAS the Court in State v. Cassidy(A-58-16) issued a decision on November 13, 2018 holding that Alcotest results from machines calibrated without using a thermometer that produces NIST-traceable temperature readings in the calibration process are inadmissible as evidence; and

WHEREAS the Administrative Office of the Courts previously had been notified by the New Jersey Office of the Attorney General that evidential breath samples from defendants in 20,667 driving while intoxicated (DWI) cases were procured using Alcotest machines calibrated without using a NIST-traceable thermometer and over 1 3,000 of those cases involved findings of guilty, either by trial or by plea; 

……..IT IS ORDERED pursuant to N.J. Const. (1947) Art. 6, S 2, 3, that, effective immediately and until further order, Superior Court Judge Robert A. Fall, retired and serving on recall, in addition to any other judicial assignment on recall, is hereby designated as the special master with judicial authority on a statewide basis to make judicial and administrative decisions relating to adjudicated cases in which evidential breath samples were procured using Alcotest machines calibrated without using a NIST-traceable thermometer; and

…….. It is FURTHER ORDERED that this designation of Judge Fall as special master shall last until further order, with Judge Fall being asked to report to the Court as soon as practicable, and regularly thereafter, on the issue of whether statewide management of the subject issues remains beneficial and in the public interest or whether the cases would be better managed at the vicinage and/or municipal level.

6. Lawyer can’t use criminal prosecution for civil benefit In the Matter of Helmer 

RPC 3.4(g) provides that “a lawyer shall not present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.” The Complaint asserted multiple grounds for the charged violation including Helmer’s entering into a retainer arrangement in which his fee was partly contingent upon payment of restitution; his meeting with Branco, Walters, Matlock, and NFI’s general counsel to press for a criminal prosecution after a declination; Helmer’s participation in drafting the indictment; his testimony before the grand jury; and his influencing Branco and Walters to seek high bail, have the indictment sealed, and arrest Land and Pessiki during a civil mediation session. 

RPC 8.4(a) provides that “it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct.” RPC 8.4(d) states that “[i]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.” The Complaint asserted that Helmer’s “actions to collect money utilizing the criminal process on behalf of NFI . . . would have impacted the administration of justice in the criminal, civil and bankruptcy cases.” 

     Victims can pursue restitution in both the civil and criminal arenas. One challenge practitioners face is to refrain from presenting or threatening “to present criminal charges to obtain an improper advantage in a civil matter.” RPC 3.4(g). Heightened care is needed to navigate potential pitfalls in that area. In this case, though, the core issue is not whether private counsel could pursue restitution through the criminal process but rather the manner in which he sought to do so. Helmer’s conduct here pushed the envelope. Although he actively encouraged a criminal prosecution and advocated for restitution for his client, to place primary responsibility on Helmer for what occurred overlooks the role and decision-making authority of the prosecution team. 

The burden of proof in disciplinary matters is clear and convincing evidence. R. 2:15- 15(a). In addition, when a violation of RPC 8.4(d) is the sole basis for discipline, a particularly high level of proof is required. The proceedings in this matter did not follow best practices and were troubling in a number of respects. Nonetheless, the Court did not find clear and convincing evidence that Helmer’s conduct violated RPC 8.4(d).

7. Drug court grads entitled to presumption of expungement

IMO the Expungement of the Arrest/Charge Records of T.B 

The plain language of the 2016 drug court expungement statute requires judges to determine whether expungement would be consistent with the public interest. N.J.S.A. 2C:35-14(m)(2); id. § 52-2(c)(3). Successful graduates who have committed certain offenses and apply for expungement are entitled to a rebuttable presumption that expungement is consistent with the public interest. (A-18/19/) 

  8. Annual Jersey Shore Happy Hour & Networking Social

July 12, 2019

    Professionals, Attorneys, Law Enforcement invited to Happy Hour & Networking Social. Free for all

at Bar Anticipation  703 16th Ave. Lake Como/ Belmar, NJ 07719

         5:30-7:55PM Hot & Cold Buffet 

  The reduced price Happy Hour is 6-7PM is $2.00 House Drinks, House Wine Bud/BudLt draft.  Co-sponsored by NJ State Bar Association Municipal Court Section, Retired Police Middlesex Monmouth Local 9 & several other organizations

      Outdoor & Indoor music, prize giveaways. Bring your friends. Pass this along. Please bring a canned food donation for a community food bank, continuing to provide food and help to individuals in need.

      Email Ken Vercammen's Law Office so we can put your name on the VIP list for wristbands.     VercammenLaw@Njlaws.com

If your group, non-profit or organization wishes to co-sponsor the networking happy hour, please contact  KENNETH VERCAMMEN, Esq.

   Free Office Space for Transitional or New Attorney and work with Metuchen Public Defender and go to Court & Mentor program- Edison, NJ 

                 The Metuchen Public Defender Kenneth Vercammen has a space sharing opportunity for new lawyer or recent Transitional attorney to get experience and go to court and learn NJ Law office procedures and handle some Municipal court cases. This is a mentoring experience where you can learn NJ Law Office Procedure. 

           Help handle Wednesday night 5:15 -7:55pm Metuchen Municipal Court matters and two Friday mornings per month.

                 Attorney will be provided with use of desk, plus if needed additional private office space in furnished basement to start their practice, rent-free. They can see clients in first floor office rooms. In return they will handle municipal court appearances, Telephone communications with courts, prosecutors, clients, etc, Will signings and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week.

-Call Courts to follow up on Letter of Representation and scheduling of hearings & call Police Departments to follow up on discovery

- Prepare timesheets on Fatal Accident cases

-Call clients and remind them of hearing dates and what to do

- Update Criminal and Civil blogs with recent cases

-Assist at Senior citizen Will Seminars and Municipal Court programs

                  Go to court and get court experience. Excellent opportunity to jump-start your career. You will get to represent people in Municipal Courts in Middlesex, Union and Monmouth County and meet the top Prosecutors and Judges. Must be admitted in NJ and have a car.

https://www.njlaws.com/office_space.html

                  Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans and public defender clients. Follow up contact calls with clients, courts, prosecutors and bar associations.

             Excellent mentoring position for the right attorney. Are you hardworking and aggressive?  Visit our website: www.njlaws.com to learn about our office. More details at www.njlaws.com/lease.htm

    If interested, fax, mail , fax or email a resume and cover letter.

KENNETH VERCAMMEN, Esq. Metuchen Public Defender

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

(Fax) 732-572-0030   vercammenlaw@njlaws.com

__________________________________________

   The following is included with office use:

Desk space 

Reception room for clients and use as Bona Fide Office

You can copy and use our Complaints, Motions, Form Letters and Pleadings.

 Use our marketing books, marketing CDs, Criminal, Municipal Court and Elder law audiotapes and video library now located in basement

 Use of our computer forms Motions, Complaints, and Form letters 

Ability to use a file cabinet in basement to store your old files 

Lighting/ Utilities

Bathroom Supplies

Landscaping / Snow Removal

Valuable advice

Hot water, municipal water/sewer charge paid

        Other Duties/ Services to Clients

-      Help add our 900+ criminal articles and statutes to our new criminal articles blog [We will teach you how to add articles to Blogs]

-Prepare Police Chief letters

- Whatever else needed to assist clients [ex Motions, ]

N.J. Municipal Court - Law Review SUBSCRIPTION INFO

      Please forward a check or voucher for $20.00 to receive the NJ Municipal Court Law Review.  This quarterly newsletter reports changes in New Jersey Court decisions, selected revised motor vehicle and criminal laws, cases, seminars, and information on Municipal Court practice.

      Vouchers accepted. Please send a stamped, self-addressed envelope for their return.  Multiple subscriptions encouraged.

      Please must send a $20.00 check payable to Vercammen & Associates, PC. 

Name:     ______________________________________

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Return to:  

Kenneth A. Vercammen, Esq.,    

                   Editor- NJ Municipal Court Law Review    

                   2053 Woodbridge Ave.

                   Edison, NJ 08817

                   732-572-0500

                  Tax ID # available

.  Municipal Court and criminal law attorneys may also be interested in the ABA’s CRIMINAL LAW FORMSbook

Award winning book from the American Bar Association

Solo & Small Firm DivisionAuthor: Kenneth Vercammen 

 Use Criminal Law Formsto help represent persons charged with criminal and traffic offenses. Detailed instruction and valuable insight is offered beginning with the initial contact with the client, to walking into the courthouse, and managing the steps that follow. Two hundred and ten modifiable forms help make criminal lawyers more efficient and productive, while also reducing the chance for mistakes. Criminal Law Formshelps lawyers face the challenges of:

•      Criminal defense

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 Kenneth Vercammenis an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's award winning book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association.  As the Past Chair of  the Municipal Court Section he has served on its board for 10 years.  

Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.

Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine. He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review. 

        For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years. 

His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings.  Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.

        Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4^thdegree black belt. 

KENNETH VERCAMMEN

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

State v. Dwight M. Nelson a/k/a Nelson Dwig

State v. Dwight M. Nelson a/k/a Nelson Dwight (080612)(Union County and Statewide) (A-60-17; 080612)

Nelson’s traffic stop was prolonged as he waited for the arrival of the canine unit, but the officers had developed the reasonable and articulable suspicion necessary to prolong the stop under State v.Dunbar, 229 N.J. 521, 540 (2017). The Court therefore affirms as modified the Appellate Division’s determination that the evidence seized during the car’s subsequent search should not be suppressed.

State v. Isiah T. McNeal (08111

State v. Isiah T. McNeal (081112) (Cape May County and Statewide) (A-14-18; 081112)

Defendant was repeatedly and explicitly warned that the estimated 2438 days of jail credit may not affect his period of parole ineligibility and that he should not enter the plea agreement expecting as much. Defendant cannot now credibly argue that he relied on a belief that all 2438 days would be applied to his term of parole ineligibility

STATE OF NEW JERSEY VS. JUAN RODRIGUEZ (18-04-0195, SOMERSET COUNTY AND STATEWIDE) (A-0180-18T4)

STATE OF NEW JERSEY VS. JUAN RODRIGUEZ (18-04-0195, SOMERSET COUNTY AND STATEWIDE) (A-0180-18T4)

In State v. Witt, 223 N.J. 409, 415 (2015), the Supreme Court revised the standards under New Jersey law governing police searches of motor vehicles that have been lawfully stopped at the roadside. The Court held such roadside searches may be conducted without a warrant if: (1) the police have probable cause to believe the vehicle contains evidence of criminal activity; and (2) the situation arose from unforeseeable and spontaneous circumstances. Id. at 446-48.

The appellate court declines to engraft upon Witt a limitation that would disallow such otherwise-permissible roadside searches in situations where the police have a basis to tow away and impound the vehicle. Consequently, the trial court's suppression order that was founded upon such a rationale is reversed. Moreover, there was no unreasonable delay in this case by the officers in making their decision to proceed with the search at the scene based on probable cause.

State v. Isiah T. McNeal (081112) (Cape May County and Statewide) (A-14-18; 081112)

State v. Isiah T. McNeal (081112) (Cape May County and Statewide) (A-14-18; 081112)

Defendant was repeatedly and explicitly warned that the estimated 2438 days of jail credit may not affect his period of parole ineligibility and that he should not enter the plea agreement expecting as much. Defendant cannot now credibly argue that he relied on a belief that all 2438 days would be applied to his term of parole ineligibility

Jail credit in Municipal Court

Jail credit in Municipal Court

      Rule 3:21-8 states that “[the defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence.” These credits for pre-sentence custody are referred to as “jail credits.” State v. Rawls, 219 N.J. 185, 192 (2014). “When the Rule preconditions for the application of jail credits are satisfied, the award of such credits is mandatory, not discretionary.” State v. Hernandez, 208 N.J. 24 (2011)

, 208 N.J. at 37.

InHernandezthe Court departed from the traditional attribution analysis for determining the correct application of jail credit. The court clarified that defendants are entitled to precisely what the Rule provides: credits against all sentences for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence on each case. Hernandez, supra, 208 N.J. at 28 (quoting R. 3:21-8).

The court applied credits to the Hernandez defendants in a manner that maximized the effect of the credits on their aggregate imprisonment terms and parole ineligibility periods. Id. at 46-49.2 [As interpreted by Hernandez, Rule 3:21-8 requires that a defendant receive jail credit even though the charges are not directly responsible for his or her incarceration. Rawls, supra, 219 N.J. at 194. The court reasoned that such an application of jail credit best comports with the policy goals of facilitating fundamental fairness, discouraging gamesmanship by prosecutors and defendants, and promoting uniformity in sentencing. Hernandez, supra, 208 N.J. at 46-49.

InHernandez,the court also discussed the previous holdings in Black and Carreker. Id. at 42-45. The court held that the facts of those cases were distinguishable because they concerned matters in which the defendants were seeking jail credit while already serving custodial sentences. Id. at 45.  

 “Jail credits are ‘day-for-day credits.’ ” Ibid. (quoting Buncie v. Dep't of Corr., 382 N.J. Super. 214, 217 (App. Div. 2005), certif. denied, 186 N.J. 606 (2006)). Jail credits apply to the “ ‘front end’ of a defendant's sentence.

The NJ Supreme Court recognizes that jail credits “serve important policy goals.” Rawls, supra, 219 N.J. at 193. Specifically, jail credits further equal protection and fundamental fairness considerations by preventing the “double punishment” of defendants who spend time in custody prior to sentencing. Ibid. (quoting Hernandez, supra, 208 N.J. at 36). Jail credits thereby prevent indigent defendants who cannot afford to post bail from serving greater time in custody than wealthier defendants. Ibid. In addition, jail credits discourage prosecutors from manipulating trial dates and promote uniformity in sentencing. Hernandez, supra, 208 N.J. at 48-49.

 In Hernandez, supra, the Court held that, under Rule 3:21-8, defendants are entitled to jail credit “against all sentences ‘for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence’ on each case.” Id. at 28 (emphasis added) (quoting R. 3:21-8). “Therefore, as interpreted by Hernandez, Rule 3:21-8 requires that a defendant receive jail credit even though the charges are not directly responsible for his or her incarceration.” Rawls, supra, 219 N.J. at 194.

STATE OF NEW JERSEY VS. ZARIK ROSE (06-04-0377, GLOUCESTER COUNTY AND STATEWIDE) (A-4915-16T2)

STATE OF NEW JERSEY VS. ZARIK ROSE (06-04-0377, GLOUCESTER COUNTY AND STATEWIDE) (A-4915-16T2)

In this post-conviction relief appeal, defendant asserts he was denied his right to represent himself under Faretta v. California, 422 U.S. 806 (1975). Defendant timely, clearly, and unequivocally asserted his right to represent himself, orally and in writing, but the court failed to rule on it. Defendant claims he believed his request was denied, and proceeded to trial with counsel. The PCR court denied relief, concluding defendant waived his right to represent himself. On appeal, the court holds that a defendant may, by conduct, waive a previously asserted right to represent himself, but the evidence must clearly demonstrate that the defendant intentionally relinquished the known right of self-representation. Proof that defendant went to trial with counsel is, on its own, insufficient proof of waiver. The court remands for an evidentiary hearing on whether defendant waived his right to represent himself

STATE OF NEW JERSEY VS. ANTOINE MCCRAY STATE OF NEW JERSEY VS. SAHAILE GABOUREL (17-11-134

STATE OF NEW JERSEY VS. ANTOINE MCCRAY STATE OF NEW JERSEY VS. SAHAILE GABOUREL (17-11-1346, MIDDLESEX COUNTY AND STATEWIDE; W-2018-3276-0906, HUDSON COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED) (A-3745-17T6/A-0358-18T6)

A defendant who violates a condition in a pretrial release order entered pursuant to the Criminal Justice Reform Act (CJRA or the Act), N.J.S.A. 2A:162-15 to -26, may be charged with contempt of court under N.J.S.A. 2C:29-9(a). Moreover, double jeopardy principles do not preclude the State from charging the defendant with contempt based on his or her failure to comply with the "no-new offense" condition of the release order, and also charging the defendant with commission of that new offense.

STATE OF NEW JERSEY VS. G.E.P.

STATE OF NEW JERSEY VS. G.E.P. STATE OF NEW JERSEY VS. R.P. STATE OF NEW JERSEY VS. C.P. STATE OF NEW JERSEY VS. C.K. (11-02-0138, MORRIS COUNTY, 07-11-1924, BERGEN COUNTY, 13-08-0761, GLOUCESTER COUNTY, AND 15-09-2680, CAMDEN COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED) (A-2065-15T2/A-0556-16T1/A-1455-16T3/A-3280-16T1)

The court consolidates these four appeals for the purpose of writing a single opinion because they all present the issue of whether State v. J.L.G., 234 N.J. 265, 272 (2018), should be applied retroactively to reverse defendants' convictions of child sexual assault where an expert in "Child Sexual Assault Accommodation Syndrome" (CSAAS) was permitted to testify at trial. We accord J.L.G. pipeline retroactivity and reverse, because, given the State's reliance on the credibility of the victims and the paucity of other supporting evidence, the admission of CSAAS expert testimony in these four cases calls into question the validity of the guilty verdicts.

State v. A.M. (080744)

State v. A.M. (080744) (Bergen County and Statewide) (A-76-17; 080744)

Although the better practice would have been to read aloud the form’s waiver portion to defendant, the Court relies on the trial court’s well-supported observations and factual findings and reverses the Appellate Division’s judgment.

PTI requires individual assessment State v COREY O. REAVES,

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
COREY O. REAVES,
Defendant-Appellant. _____________________________

Submitted November 29, 2018 – Decided March 4, 2019Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16-04-1253. this opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Tiffany M. Russo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-0196-17T2

Defendant, Corey O. Reaves, appeals from an April 28, 2017 judgment of conviction after pleading guilty to one count of third-degree conspiracy to commit assault, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:12-1(b)(7), and receiving one year of probation. On appeal, defendant challenges the December 13, 2016 order denying his appeal of the State's rejection of his Pretrial Intervention program (PTI) application. We reverse the order denying defendant's PTI appeal and remand to the trial court and instruct the prosecutor to consider defendant's PTI application anew.
We discern the following facts from the record. On September 9, 2015, two cab drivers were parked in a parking lot when four high-school-aged males and three females approached their cabs. One male began writing on the window of one of the cabs with black marker. When the cab driver stepped out of his cab to stop the male, another male punched him in the face with brass knuckles. The second cab driver exited his cab to assist but was met by a punch to the head from another male. During the struggle, the second cab driver was able to grab onto and remove an assailant's backpack. The first cab driver suffered a fractured eye socket and jaw, which required facial reconstruction surgery. The second cab driver went to a police station and provided a physical description of the assailants. The only description the first cab driver could provide was

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that one assailant was wearing brass knuckles. No brass knuckles were ever found.
Police searched the backpack and found the name "N. Benjamin" written on notebooks and files. Police identified N. Benjamin but he fled the country before charges were filed. Security footage showed the group entering and exiting the parking lot but does not show the assault. Based on the physical description of the assailants and the video, police focused on defendant and N.M., a juvenile, as suspects. Police showed the video to defendant's mother, who identified her son in the group. Based on this evidence, the prosecutor believed defendant was the assailant with the brass knuckles who struck the first cab driver.
Defendant turned himself in after learning he was a suspect. He was later charged with one count of second-degree aggravated assault, N.J.S.A. 2C:5- 2(a)(1), one count of second-degree conspiracy to commit assault, N.J.S.A. 2C:12-1(b)(1), one count of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), and one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).

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Defendant applied to the PTI program. Pursuant to Rule 3:28, defendants charged with violent crimes are presumptively ineligible for PTI.1 For this reason, and the fact defendant had two juvenile charges, one of which was dismissed, the program manager denied defendant's application. The prosecutor agreed and, pursuant to N.J.S.A. 2C:43-12(e), found factors one, two, four, seven, nine, ten, fourteen, and seventeen to be relevant. The prosecutor described defendant as the primary assailant, saying "Defendant wrote graffiti, on . . . the rear of the victim's taxi cab," and "defendant viciously attacked the innocent and defenseless victim with a pair of brass knuckles." Defendant, the prosecutor explained, presented a substantial danger to the public because he is "exceedingly violent" and, considering his juvenile adjudication, this was the second time he was charged with a violent offense within two years.
Alternatively, the prosecutor considered mitigating factors three, eight, thirteen, and sixteen to be relevant. The prosecutor mentioned defendant's age,
1

Effective July 1, 2018, the former Rule 3:28, which contained several guidelines for PTI assessments, was revised and replaced by Rules 3:28-1 to - 10. The new rules more closely track the statutory factors and case law. However, because defendant's PTI assessment was made on September 29, 2016, the former version of the rules apply. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 473 n.4 (2018) (applying "version of Rule 3:28 and the accompanying Guidelines and Comments that governed when [the defendant] was admitted to PTI").

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that he does not pay child support, the fact he did not graduate from high school or obtain a GED, his admission he smoked marijuana daily, and his "sporadic and limited" employment history as mitigating factors. Additionally, the fact defendant completed probation for his juvenile offense but still committed the assault shows he was not deterred by such punishment.
Defendant appealed to the trial court and admitted he had been present and assisted the group flee from the scene. The prosecutor reiterated many of the same arguments of why the denial was justified. However, the prosecutor abandoned the contention defendant was the assailant with the brass knuckles. Rather, the prosecutor relied on the fact defendant admitted he was present for the assaults as justification for denial of his PTI application. The trial court declined to overturn the prosecutor's decision, citing the substantial deference afforded to prosecutors' disposition of PTI applications.
Defendant pled guilty to one count of conspiracy to commit assault. At defendant's sentencing, the judge explained defendant pled guilty to "basically an aiding and abetting" charge and not "an accomplice or accessory theory" because "[t]here's no indication nor acknowledgment that Mr. Reaves actually physically hit anybody." Defendant was sentenced to one year of probation and

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his judgment of conviction was modified to reflect he spent 140 days in jail. This appeal followed.
On appeal defendant argues the following: Point I
THE TRIAL COURT ERRED IN FINDING THAT THE STATE'S DENIAL OF DEFENDANT'S APPLICATION FOR PRE-TRIAL INTERVENTION WAS NOT A PATENT AND GROSS ABUSE OF DISCRETION.

1. Considered Factors
   Factors One, Two, Nine, and Ten Factors Seven, Fourteen, and Seventeen
2. Applicable, But Ignored Factors Factors Five, Six, and Eleven
3. Improperly Considered Factors

Having reviewed the record, we agree with defendant and reverse and
remand to the prosecutor for reconsideration of defendant's PTI application. Both the statute governing admission into PTI and case law afford substantial deference to the prosecutor's disposition of a PTI application. The prosecutor is often in the best position to decide whether a defendant is an appropriate candidate for PTI; however, this authority is not unassailable. We are obliged

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to identify when a prosecutor presents arbitrary justifications or relies on impermissible factors to deny a PTI application. This check is necessary to ensure applicants to the PTI program receive an honest and individualized assessment of their amenability to rehabilitation.
We note defendant was eighteen when first arrested and on track to obtain a high school diploma. However, because he could not make bail, he could not complete his senior year. Defendant was nineteen when released from jail but was unable to re-enroll in his former high school because he was too old. In his letter to the prosecutor, he indicated a willingness to complete a GED.
This was defendant's first adult offense. In 2012, when he was a juvenile, an obstruction of the administration of justice charge against him was dropped. In 2014, defendant was adjudicated delinquent after committing a robbery and was sentenced to one year of probation.
Defendant has one child and was never ordered to pay child support. Defendant was raised by and lived with his mother. He moved frequently and attended five schools after eighth grade. At age fifteen, defendant resumed a relationship with his father upon his father's release from prison.
Prior to his arrest, defendant worked at a grocery store and with his father in a landscaping and lumber business. Defendant lost his job at the grocery store

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due to tardiness. After his release from jail, he obtained employment providing transportation assistance to disabled persons. Defendant admitted he smoked marijuana.
Admission into PTI requires recommendation by the program manager and acceptance by the prosecutor. N.J.S.A. 2C:43-12(e). Both the program manager and prosecutor "shall consider" the following factors in rendering an admission decision:

(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
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(7) The needs and interests of the victim and society;
(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti- social behavior;
(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;
(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;
(12) The history of the use of physical violence towards others;
(13) Any involvement of the applicant with organized crime;
(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;
(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;
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(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; and
(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.
[Ibid.]
Guideline 3(i)(2) provides defendants accused of violent crimes are presumptively ineligible for PTI. R. 3:28. Defendants can overcome this presumption by showing "something extraordinary or unusual, something 'idiosyncratic,' in his or her background." State v. Nwobu, 139 N.J. 236, 252 (1995) (quoting State v. Jabbour, 118 N.J. 1, 7 (1990)).
A PTI determination requires an "individualized assessment of the defendant considering his or her 'amenability to correction' and potential 'responsiveness to rehabilitation.'" State v. Roseman, 221 N.J. 611, 621-22 (2015) (quoting State v. Watkins, 193 N.J. 507, 520 (2008)). A defendant denied access to PTI can appeal the decision to the trial judge, but the prosecutor's decision "is entitled to a great deal of deference." Id. at 624. Our scope of review is "severely limited" and "designed to address 'only the most egregious examples of injustice and unfairness.'" State v. Denman, 449 N.J. Super. 369, 376 (App. Div. 2017) (quoting State v. Negran, 178 N.J. 73, 82 (2003)).

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"Although we rarely overturn the rejection of a PTI application, the prosecutor's discretion is not unlimited." Ibid.
Our Supreme Court has said prior dismissed charges unsupported by undisputed facts in the record should not factor into the PTI decision. State v. K.S., 220 N.J. 190, 199 (2015). Here, both the program manager and prosecutor specifically mentioned defendant's dismissed juvenile charge as indicative of his lack of amenability to rehabilitation. The State argues the prosecutor did not rely upon the dismissed charges to render a decision. However, the prosecutor's recitation of defendant's criminal record states, "[t]he current offense constitutes the defendant's third interaction with the criminal justice [sic]." Pursuant to K.S., consideration of a prior dismissed charge "for any purpose" without substantiation is improper. Ibid. ("[W]e hold that when no such undisputed facts exist or findings are made, prior dismissed charges may not be considered for any purpose.").
Our review of the reasons underlying the prosecutor's initial decision and subsequent justifications leave us convinced the prosecutor described defendant's character in a way to fit the crimes charged, rather than consider whether he was amenable to rehabilitation. Thus, for the reasons that follow,

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defendant was deprived of an individualistic assessment amounting in an abuse of discretion.
The prosecutor used factors one, two, seven, nine, and ten to describe defendant as the principal assailant with the brass knuckles. But, upon appeal to the trial court, the prosecutor described defendant as merely present and complicit in the assaults. Of course, "[a] prosecutor is certainly free to disbelieve statements presented by defense witnesses and to instead credit the anticipated contrary testimony of the State's witnesses." State v. Lee, 437 N.J. Super. 555, 568 (App. Div. 2014). "Moreover, the prosecutor's decision to deny PTIcannotbeinvalidatedbysubsequentevents[suchasaguiltyplea]...." Id. at 569. However, a prosecutor is not entitled to base a PTI decision on disputed facts. See, e.g., State v. Ridgway, 208 N.J. Super. 118, 127 (Super. Ct. Law Div. 1985) (trial court overturned a prosecutor's denial of PTI in part because the prosecutor treated a police investigation as conclusive and unilaterally resolved factual disputes). Here, the State changed the theory of its case, particularly because the State's first recitation of its alleged facts depicted defendant as a violent criminal and served as the basis to deny PTI. This shows the prosecutor considered defendant ineligible for PTI no matter his role in the assault. Treating defendants as per se ineligible based on the crime charged,

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without consideration of individual circumstances, is improper. See, e.g., State v. Baynes, 148 N.J. 434, 445 (1997). Rather, every defendant is eligible for PTI and is entitled to an individualized assessment of their application.
The State argues it considered factors three, eight, thirteen, and sixteen as mitigating ones, but it is difficult to discern how application of those factors actually worked in favor of defendant's admission. The State describes defendant as a violent offender who never finished high school or obtained a GED, does not have custody of his child, fails to pay child support, cannot hold a steady job, and smokes marijuana every day. But, described in accordance with the facts, defendant could not finish high school because he spent his senior year in jail unable to make bail, enrolled in a GED program, shared custody with his child's mother, was never ordered to pay child support, held various jobs as a teenager, and could have benefited from drug counseling.
Accordingly, the order rejecting defendant's PTI appeal is reversed, and the matter is remanded for further proceedings. The prosecutor must consider defendant's PTI application ab initio.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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