1. DWI Refusal notice withstands challenge
State v Quintero __ NJ Super __(App. Div.
2016)
The court affirms defendant's de novo conviction for
refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant argues that
the Attorney General's current standard statement under N.J.S.A. 39:4-50.2(e)
is fundamentally deficient for not specifying the mandatory minimum penalties
for refusal. In State v. O'Driscoll, 215 N.J. 461, 479-480 (2013), the Supreme
Court noted, but declined to address, the sufficiency of the standard
statement.
The court hold that the current standard statement
satisfies the statutory mandate — that is, informing motorists and impelling
compliance — by adequately informing drivers of the maximum potential license
revocation and fine, and the possibility of ignition interlock, that they face
for refusal. In so ruling, The court note that adding other details, including
the differing mandatory minimum and maximum penalties for first offenders, second
offenders, and certain third offenders, may run the risk of submerging the most
significant penalties in those details.
2. Sup Mt denied where police looking in house for missing dementia
patient found pot plants State v Mordente __ NJ Super.__ (App. Div.
2016) A-5838-13T1
The court affirmed the denial
of a motion to suppress the evidence of marijuana plants found in the basement
of a home searched as part of the police protocol for locating missing persons.
The sixty-five year old missing woman in this case suffered from dementia, and
was reported by her son as having left the home at some point during the night
prior to the search.
In his dissent, Judge
Fuentes opines that the police emergency aid doctrine does not justify this
search under the guidelines set forth in State v. Vargas, 213 N.J. 301 (2013),
and prior case law.
3. PTI can be reinstated State v AS-M
__ NJ Super __(App. Div. 2016)
The court held
that a defendant terminated from the pre-trial intervention (PTI) program may
be reinstated upon reconsideration. Such a reconsideration, which is not
expressly precluded by N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of Rule 3:28,
is especially permissible when circumstances show the initial order terminating
a defendant from PTI failed to adhere to the requirements of N.J.S.A.
2C:43-13(e), including the obligation to undertake a "conscientious
judgment" to (1) adequately consider whether the participant willfully
violated the PTI conditions; and (2) determine whether the defendant remains a
viable candidate for PTI under the original or modified PTI terms.
4. Double jeopardy bars crime
prosecution if a plea in municipal court
State v
Miles __NJ Super __
(App. Div. 2015) A-2692-12T1
The defendant was arrested during an undercover drug
operation. Defendant was charged on a warrant with possession of a CDS with
intent to distribute on or near school property. Defendant was also charged on
a summons with a disorderly persons offense of possession of marijuana.
After defendant was indicted, he appeared pro se in
municipal court via videoconference after being incarcerated for a family
matter. The disorderly persons drug offense, which was not joined with the
indictable offense, was pending. Without the presence or participation of the
State, but in accord with the existing "practice," the judge amended
the offense to loitering and then took a plea from defendant. Predicated upon
his plea, defendant sought to bar the prosecution of the indictable charge.
The court held that the subsequent prosecution and
conviction on the indictable charge was barred under the "same
evidence" test, which is still recognized under state constitutional
principles. The court reasoned that the "fundamental fairness"
doctrine did not apply, notwithstanding the State's failure to join the
disorderly offense with the indictable charges and defendant's reasonable
expectation that his plea to the disorderly offense charge resolved all
charges, which arose out of his arrest.
5. Rule on recording Custodial interrogations
reviewed
State v Anthony __ NJ Super __ (App. Div.
2016)
Rule 3:17(a)
provides that, "[unless one of the exceptions set forth in paragraph (b)
are present, all custodial interrogations conducted in a place of detention
must be electronically recorded when the person being interrogated is charged
with" certain listed crimes, including murder. However, subsection (b)(vi)
excepts from the recordation requirement "a statement . . . given at a
time when the accused is not a suspect for the crime to which that statement
relates while the accused is being interrogated for a different crime that does
not require recordation[.]"
In this case,
defendant was arrested on an open motor vehicle warrant and interrogated
regarding a homicide. The preliminary interrogation was not recorded, but, at
some point, after concluding based on defendant's statements that he was a
suspect in the homicide, investigators recorded his statement on video. The
trial judge denied defendant's motion to suppress the statement and concluded
there was no obligation to record the initial portion of the interrogation.
The court construed the somewhat ambiguous provisions
of the Rule and conclude that an interrogation must be recorded if, taking into
account the totality of the circumstances then known to the interrogator, a
reasonable police officer would have a reasonable basis to believe defendant
was a "suspect" in the crime about which he was being questioned. In
this case, the court concluded that the trial judge properly determined that
the investigators reasonably concluded that defendant was not a suspect when
the interrogation began.
6. Expert can only testify upon his own
observations and not just read someone else’s report.
State v. Bass __ NJ ___
(2016) (A-118-13)
The limitation on
defendant’s cross-examination of Sinclair constituted reversible error.
Defendant is entitled to a new trial on the charges of murder, attempted murder
and the possession of a weapon for an unlawful purpose. In addition, the
substitute expert read portions of the deceased medical examiner’s autopsy
report to the jury, rather than testifying based on his own observations and
conclusions, which violated defendant’s confrontation rights. On retrial, any
expert testimony by a substitute medical examiner should conform to State v.
Michaels, 219 N.J. 1, cert. denied, 135 S. Ct. 761, (2014), and State v.
Roach, 219 N.J. 58 (2014), cert. denied, 135 S. Ct. 2348 (2015). Defendant
was not entitled to an instruction on the use of force against an intruder
because he voluntarily admitted the victims to his room.
7 Defense to refusal where person medically unable
to provide breath samples State v. Monaco __ NJ Super __ (App. Div. 2016)
In
affirming defendant's conviction of driving under the influence and refusal to
submit to a chemical breath test, the court address two points related to the
refusal conviction. First, applying State v. O'Driscoll, 215 N.J. 461 (2013),
the court holds that defendant failed to present evidence that her refusal was
materially affected by the failure to inform her that she would be required to
install an ignition interlock if convicted. Second, the court holds that a
defendant bears the burden to prove that he or she lacked the physical capacity
to perform the chemical breath test. In this case, defendant maintained her
asthma rendered her incapable of providing the minimum air volume. Although
defendant's treating physician testified about her pulmonary function, the Law
Division judge found the proofs were insufficient to establish defendant was
incapable of providing the requisite air volume.
8. Stop of car and search improper based on strange
pause
State v. V.A.-M. App. Div. unreported
14-2-8638
After his motion to suppress
was denied in municipal court, 18-year-old defendant V.A.-M. pleaded guilty to
loitering to obtain a controlled dangerous substance and was sentenced to a
fine of $350, plus court costs and fees. Defendant appealed, and the Law
Division affirmed the municipal court's denial of defendant's motion to
suppress and imposed the sentence. Defendant then challenged the stop of the
motor vehicle in which he was a passenger and the subsequent warrantless search
and seizure of a pipe from his pants pocket that was alleged to be drug
paraphernalia.
Because the police stop could
not be justified either as an investigatory stop or under the
community-caretaking doctrine, the appellate panel reversed. The
community-caretaking doctrine did not justify the stop of the vehicle and
warrantless search of defendant, as the officers did not have an objectively
reasonable basis to believe that an emergency required immediate action to
protect life or prevent serious injury. The police officer did not indicate
that he stopped the vehicle because of the manner in which it was driving. As
such, the Law Division's reliance on the "strange pause" of the
vehicle and its attempt to continue driving was misplaced. Moreover, the
officer testified that once he spotted the vehicle and realized that it matched
the description he had received from dispatch, he intended to stop it based on
the anonymous citizen’s report alone.
The panel found that the
anonymous call to police reporting benign and non-criminal activity was
insufficient to justify an investigative stop. The call reported a parked car,
with a white male running up and down a hill. While a concerned citizen was
apparently sufficiently troubled to call police, the reported activity was more
in the nature of innocent frolicking than criminal activity. A parked car and a
male running up and down a hill on a winter evening did not rise to the level
of reasonable articulable suspicion of criminal activity necessary to justify
an investigatory stop. Because the stop was constitutionally defective, the
subsequent statements by, and search of, defendant the court suppressed. Source
Daily Briefing - 12/14/2015
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Index
1. DWI Refusal notice withstands challenge
State v Quintero
2. Sup Mt denied where
police looking in house for missing dementia patient found pot plants State
v Mordente
3. PTI can be reinstated State v AS-M
4. Double jeopardy bars crime
prosecution if a plea in municipal court
State v
Miles
5. Rule on recording Custodial interrogations
reviewed
State v Anthony
6. Expert can only testify upon his own
observations and not just read someone else’s report.
State v.
Bass
7 Defense to refusal where person medically unable
to provide breath samples
8 Stop of car and search improper based on strange
pause
State v. V.A.-M.
9. Summer Happy Hour July
15.
Photo Mun Ct College: PAGE 1
Photo Municipal Court College
Josh Reinitz,
Esq, John Menzel Esq, Norma Murgado Elizabeth & Woodbridge
Prosecutor, Kenneth Vercammen
Also
participating Tara Auciello Edison Prosecutor
300-page
seminar book available from NJ ICLE 732-214-8511
Attorneys, Professionals, 5k runners, Friends, Law
Enforcement invited to Summer Blast Happy Hour & Networking Social
July 15, 2016 Friday
at Bar Anticipation
703 16th Avenue Lake Como/ Belmar, NJ 07719
Free !
5:30-7:55PM Hot & Cold Buffet
The reduced price Happy Hour is 6-7PM with $1.50 House Drink, Bud/BudLt
draft & House Wine Special
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
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If your group, non-profit or
organization wishes to co-sponsor the next networking happy hour, please
contact
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2053 Woodbridge Ave. Edison, NJ 08817
May 18th Wednesday
from 1:00-2:40 “Ethical Marketing” Seminar
Making Money in Municipal Court the Ethical Way
Borgata Atlantic City
NJSBA Annual Meeting
Speakers: Kenneth Vercammen, Esq, Past
Municipal Court Attorney of the Year
Hon. Catlado Fazio, J.M.C. Hoboken
Jason T. Komninos, Esq.
Law Office of Jason t. Komninos, Hackensack
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Chance & McCann, LLC, Bridgeton
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Law Office of Karen A. Ostberg, Brielle
Learn how to make more money by ethically marketing your practice...
and staying ethically compliant!
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NJICLE
Kenneth
Vercammen is an Edison, Middlesex County, NJ trial attorney
where he handles Criminal,
Municipal Court, Probate, Civil Litigation and Estate Administration matters.
Ken is author of the American Bar Association's 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 4th degree black belt.
KENNETH VERCAMMEN
ATTORNEY AT
LAW
2053 Woodbridge
Ave.
Edison, NJ 08817
(Phone)
732-572-0500
