State v. Breane Starr Blakney

12-20-06 (A-117-05)

We agree with Judge Weissbard substantially for the reasons
expressed in his dissenting opinion. We therefore reverse
defendant’s murder conviction and remand for a new trial on that
charge. In addition, we underscore the importance of wellcrafted
limiting instructions when the State introduces othercrime
evidence pursuant to N.J.R.E. 404(b), and remind
prosecutors of their obligation to keep their summation remarks
within acceptable bounds of advocacy.

State v. Porfirio Jimenez (A-50-05)

10-24-06 (A-50-05)

The absence of mental retardation is not akin to a capital
trigger, and Jimenez has the burden to prove by a preponderance
of the evidence that he is retarded.

In the Matter of Registrant T.T.: Application for Judicial Review of Notification and Tier

10-3-06 (A-58-05)

T.T.’s lack of sexual motivation does not alter the fact that he
committed the predicate offense of aggravated sexual assault and
Megan’s Law therefore applies. The intra-familial nature of
T.T.’s offense, however, is a circumstance that warrants the
less stringent community notification of a Tier One
classification.

State v. Keith R. Domicz

9-20-06 (A-42-05)

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.

Major Changes in Municipal Court - Seminar :Recent DWI and Criminal Cases and the New Alcotest Breath Machine

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

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.

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.

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."

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.

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.

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]

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).

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.

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

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