General Practice, Solo and Small Firm Division:
March 2007
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Brian T Hermanson Ponca City, OK Chair (580) 762-0020
Kenneth Vercammen, Esq. Editor & Deputy Chair
In this Issue:
1. Sample CONFIDENTIAL CRIMINAL INTERVIEW FORM
2 Sample DWI Cross Examination Questions
3 WE PUBLISH YOUR ARTICLES AND FORMS
1. CONFIDENTIAL CRIMINAL INTERVIEW FORM
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 WOODBRIDGE AVENUE
EDISON, NJ 08817
732-572-0500
PLEASE PRINT
NAME ____________________________________________________
ADDRESS _________________________________________________
CITY _______________________ STATE ____ ZIP ______________
CELL #(_____)_________________ PHONE-DAY(____)________________
NIGHT (______)_________________
TODAY'S DATE ____/_____/_____ E-MAIL ________________________
Referred By: __________________________________
If referred by a person, is this a client or attorney?
CHARGES/TICKETS ISSUED [provide tickets, hearing notice and other important papers to front desk to be copied]
1. ____________________________________________________
2. ____________________________________________________
3. ____________________________________________________
4. ____________________________________________________
IMPORTANT INFORMATION
Date of Offense: __________________ Time: _____ (A.M./P.M.) Your Age _____
Town: ___________________________ (street/location)?____________________
What Happened: _________________________________________________
________________________________________________________________________________________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Write additional details on the back of this page. YOU MUST FILL OUT BOTH
PAGES PRIOR TO SEEING THE ATTORNEY.
Kenneth Vercammen, Esq. Confidential interview form page 2
Other Persons Arrested or Witnesses:
______________________ ______________________ _________________
co-defendant/ Witness Name Their Address Phone No.
What did you tell the police? ________________________________________
______________________________________________________________________________________________________________________________
Occupation: _____________ Employer: _______________ Town: ________
[Attach your business card to clipboard.]
Do you need your drivers license for work? ____ Distance driven to work: ____
Prior criminal arrests or convictions, even if charges dismissed (include description of each charge, date of arrest, and town/county of arrest. -If none, write none):
_____________________________________________________________________________________________________________________________________________________________________________________________
Prior motor vehicle convictions, town and year (ex: drunk driving, driving while suspended, no insurance, etc. -If none, write none): _____________________
_____________________________________________________________________________________________________________________________________________________________________________________________Prior Traffic ticket downgrades to no point tickets since 1999 [39:4-97.2]:
1. Town _______________________ Year ___________ [if none, write none]
2. Town _______________________ Year ___________
[Please note the DMV/MVC only permits 2 "no point" downgrades in 5 years.]
If you are not a US Citizen, please check here: ______
What questions do you have/ how can we help you and anything else important:
____________________________________________________
All new clients are entitled to receive our Free Email Newsletter featuring updates in Traffic Law, Criminal and Personal Injury. Please help yourself to all brochures in the reception area. If you have a business card, please attach it to the clipboard. All paid clients receive a T-shirt upon request. This page must be filled out before meeting with the attorney. Thank you.
Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a municipal court matter.
1. Legal Services To Be Provided- Please read!
We will review and research necessary statutes and caselaw, speak with the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services and at all times will seek to achieve solutions which are just and reasonable for you.
1. Office consultation with client
2. Preparation of statement to provide legal services [ retainer agreement setting forth fees and work to be performed;
3. Offer sound legal advice to client;
4. Preparation of letter of representation to Municipal Court after fee paid;
5. Preparation of letter of representation to Municipal Court Prosecutor;
6. Review documents supplied by client and court;
7. Copies of all correspondence to Court and Prosecutor to client;
8. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure;
9. Review of necessary statutes and case law;
10. Follow up with Municipal Prosecutor for discovery if suspension or jail is likely;
11. Prepare defense and mitigating factors;
12. Miscellaneous correspondence, drafting of brief/ pleadings if needed;
13. Review Court hearing notice and send letter to client to remind them of hearing
14. Travel to Municipal Court;
15. Representation in Municipal Court.
16. Preparation of End of Case Letter and client questionnaire.
17. Free Brochures provided on other legal topics such as Personal Injury, Worker's Comp, Wills, Probate and other matter we help clients
18. Free subscription to monthly e-mail newsletter.
19. Answer specific questions after the case is over
20. Free T-shirts, Magnets, Can Koozie, Stadium Cup, Free USA Keychains, USA Flag Calendar for clients - Please ask.
Legal Fees.
Fees must be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen Law Office today. Fees are to be paid at initial consultation (today). Fees must be paid in full prior to a Letter of Representation being sent to the Court. Neither this office nor other area attorneys accept payment plans if the fees are less than $2,500. Fees are not reduced and not negotiable. We cannot send a letter of representation to the court until the Retainer is paid in full. This is a non-refundable retainer/representation fee, pursuant to Superior Court decisions and New Jersey RPC.
What you should do: After you have retained [paid] your attorney, call the court, plead not guilty and give the court the name of your attorney. In traffic tickets, the phone number is on the back of the ticket.
Write your notes on the back of this paper during your interview.
2- Sample DWI Cross Examination Questions
By Kenneth Vercammen, Esq.
Editor- NJ Municipal Court Law Review and lecturer on DWI for both the NJ State Bar Association and NJ Police Chiefs Association
Probable Cause for Stop
1. No accident?
2. No criminal violation?
3. Traffic light per ticket?
4. According to Report-Not close to hitting other car
5. According to Report not endangering any person/property?
6. No details in report of driving willful on went to disregard of rights of others?
7. No ticket for lane violation?
8. No ticket for careless?
9. No reason to believe weapons?
10. No tip by reliable informant?
11. Pulled over my client without a warrant?
12. No Radar?
13. No Pace?
14. Could not have issued ticket for speeding?
Cross of Police Regarding Field Sobriety
15. Do you have documents describing how, under what conditions and by whom each test was given? Are you aware the National Highway Traffic Safety Administration has advice and instructions on giving the Field Sobriety Test.
15A. Walk and Turn
Your report does not say that you:
• Always begin by having the subject assume the heel-toe stance
• Verify that the subject understands that the stance is to be maintained while the instructions are given.
• If the subject breaks away from the stance as the instructions are given, cease giving instructions until the stance is resumed
• Tell the subject that he or she will be required to take 9 heel-to-toe steps down the line, to turn, and to take 9 heel-to-toe steps up the line.
• Demonstrate several heel-to-toe steps
• Demonstrate the turn
• Tell the subject to keep the arms at the sides, to watch the feet, to count the steps aloud, and not to stop walking until the test is completed.
• Ask the subject whether he or she understands; it not, re-explain whatever the subject doesn’t understand
• Tell the subject to begin
• If the subject staggers or stops, allow him or her to resume from the point of interruption; do not require the subject to start over from the beginning
• Cannot keep balance while listening to instructions (i.e., breaks away from the
heel-to-toe stance)
• Starts before instructions are finished
• Keeps balance but does not remember instructions
• Stops while walking to steady self
• Does not touch heel-to-toe while walking (i.e., misses by at least one-half inch)
• Loses balance while walking (i.e., steps off line)
• Uses arms for balance (i.e., raises arms by six inches or more)
• Loses balance while turning
• Incorrect number of steps
Are you aware the NHTSA states that officers should note in their reports how many times each of the eight clues appears. However, isn't it true the NHTSA for purposes of applying the standardized criterion, a clue should be “counted” only once, even if it appears more than once.
15B. One Leg Stand
Your report does not say you would:
• Tell the subject to stand with heels together, and arms at sides
• Tell the subject not to start the test until you say to do so
• Ask the subject whether he or she understands
• Tell the subject he or she will have to stand on one foot, with the other foot about six inches off the ground
• Demonstrate the stance
• Tell the subject to count from 1 to 30, by thousands
• Demonstrate the count, for several seconds
• Ask the subject whether he or she understands; if not, re-explain whatever is not understood
• Tell the subject to begin
• If the subject stops or puts the foot down, allow him or her to resume at the point of interruption; do not require the count to begin again at “one thousand and one”
• Swaying while balancing
• Uses arms to balance (i.e., raises arms from side six inches or more)
• Slightly uneasy
• Quite unsteady
• Starts before instructions are finished
• Puts foot down
• Hops
Are you aware the NHTSA states that there are the only four validated clues of One Leg Stand.
15C. Horizontal Gaze Nystagmus Test
Your report does not say:
• Hold the stimulus 12-15 inches in front of the subject’s face
• Keep the tip of the stimulus slightly above the subject’s face
• Always move the stimulus smoothly
• Always check for all three clues in both eyes
• Lack of smooth pursuit
• Distinct jerking at maximum deviation
• Onset of jerking within 45 degrees
Are you aware that no other “clues” are recognized by NHTSA as valid indicators of horizontal gaze nystagmus. In particular, NHTSA does not support that allegation that onset angle can reliably be used to estimate BAC, and considers any such estimation to be misuse of the horizontal gaze nystagmus test.
16. Documents describing test results?
17. Documents describing "test" results?
18. What are procedures to permit defendant to obtain independent tests of blood, breath or?
According to your Alcohol influence rep?
19. Section 25 of Alcohol Influence report, Able to walk, talk?
not falling
-not on hands and knees
-not staggering
20. According to Section 26, Ability to stand?
-no swaying
-no leaning for balance
-feet not wide apart
21. According to Section 27, Speech-not slurred?
-not incoherent
-not slobbering
-could understand what she was saying
22. Demeanor-cooperative, polite, calm?
23. Eyes watery now?
24. When is allergy season?
DWI Questions Regarding Under Influence
25. Did prosecutor or state supply an experts report?
26. Not a medical doctor?
27. No test of Pharmacological effects of any medications?
28. No direct measurement of the quantity of any medications or drugs in defendants blood?
29. Gas Chromatography/ Mass spectrometry can provide direct measurement of quality?
30. You don't have any gas Chromatography results with your blood?
31. Not licensed to prescribe medications?
32. Have not attended Medical School?
33. Not Qualified to Render a Medical Opinion
34. Do not have a Ph.D..?
35. Do not have a Masters degree in Chemistry
36. Do not have a BS degree in Chemistry?
[saved 100 Cross Exam Q-DWI Brendan articles 4/3/03]
_____________________________________________
Send Us Your Marketing Tips
Send us your short tips on your great or new successful marketing techniques.
3. WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
You can become a published ABA author. Enjoy your many ABA benefits.
General Practice, Solo and Small Firm Division:
CRIMINAL LAW COMMITTEE
Brian T Hermanson Ponca City, OK
Chair (580) 762-0020
KENNETH VERCAMMEN Deputy Chair
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
kenv@njlaws.com
Sunday, March 18, 2007
Thursday, March 08, 2007
New criminal case: Two-stage interrogation not objectionable. State v. O'Neill 388 N.J. Super. 135 (App. Div. 2006)
The court reject defendant's claim that the two tape-recorded statements he made to the police should have been suppressed because they were the product of a two-stage interrogation technique (question-first, warn-later) found to be improper by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Monday, February 26, 2007
Police can ask for consent of home. State v. Domicz 188 N.J. 285 (2006)
The court held Under the circumstances, the warrantless thermal scan and seizure of electricity records did not constitute prior unlawful conduct that could tainted the later search. Grand jury subpoena procedures adequately protect any privacy interest in utility records. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds
Kenneth Vercammen's NJ Laws email newsletter E238
February 25, 2007
In this issue:
1. New law Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds where defendant is charged with crime with bail restrictions.
2- HELP WANTED HTML Clerk to set up webpages
3 Wills, The New Probate Law & Estate Administration Program- last chance to attend Monday, March 19, 2007 7 - 8:30 P.M.
1. Governor Jon S. Corzine also took action on the following legislation. NEW LAWS SIGNED:
A-2987/S-2012 (Watson Coleman, Steele, Johnson, Chivukula, Conaway/Turner, Girgenti) – Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds where defendant is charged with crime with bail restrictions.
2- HELP WANTED HTML Clerk to set up webpages
Law Office Edison
Growing Law Office needs Clerk to update website and help with law office. We sponsor a state wide website with information on litigation, personal injury, criminal and probate matters. Clerk/ programmer needed to update website. Applicants must have familiarity with HTML programming, web page design/ maintenance and Internet technology. If you can update a website, this is the job for you. Please indicate so in the first paragraph of your cover letter. $10.00 an hour start. Work 20 hours per week Monday- Thursday. You select the hours. Fax resume & cover letter to the Law Office of Kenneth Fax 732-572-0030
Great opportunity to obtain legal experience.
GENERAL DUTIES [Not included in Crit advertisement]
-General Office duties in Law Office
-Update mailing/ client lists and learn marketing
-Prepare correspondence to Law Journals and New Jersey Media with
Revised .-Provide copies of published articles to Judges, Prosecutors and other
New Jersey professionals.
-Ideal for person interested in the legal field, law enforcement or public relations/ media
-Occasional Telephone Answering
Must be dependable and committed to perfection for clients
Kenneth A. Vercammen, Esq.
3. Wills, The New Probate Law, Estate Administration & Elder Law
New Probate Law Effective 2006!
WHERE: Edison High School Community Adult Education
WHEN: Monday, March 19, 2007 7 - 8:30 P.M.
Please note, the Edison Board of Education is discontinuing its Community Adult Education program. This is your last opportunity to attend.
SPEAKER: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
- So you don't have a Will. You won't live forever and you can't take it with you. What should you do?
Main Topics:
1. Wills and the 2006 changes to the NJ Probate Law
2. Power of Attorney
3. Living Will
4. Administering the Estate/ Probate/Surrogate
5. Estate Planning
6. Revocable Trusts/ Irrevocable Trusts
7. Federal HIPAA Regulations on release of medical info
8. Federal Estate Tax
9. Question and Answer
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.njlaws.com.
EDISON COMMUNITY ADULT SCHOOL.
EDISON HIGH SCHOOL, Room 193, 50 Blvd. of Eagles, Edison, NJ
732-452-4574 John Russell, Director
-Free for Edison Seniors who pre register
$25 registration fee required by adult school for all others. Call the Adult Education Office for registration information 732-452-4574
Upcoming charity races:
3/18/2007 St. Paddy's 10 Mile Race & Leprechuan 5k 10 mile 10am, 5k, 10:15am Freehold NJ 732-431-2627 Free beer, Free food, long sleeve shirt USATF Sponsored by Freehold Area Running Club FARC www.farcnj.com
3/24/2007 CASC 5K 9:30 Hightstown NJ 732-742-6868
For more events visit www.metrorace.com
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
February 25, 2007
In this issue:
1. New law Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds where defendant is charged with crime with bail restrictions.
2- HELP WANTED HTML Clerk to set up webpages
3 Wills, The New Probate Law & Estate Administration Program- last chance to attend Monday, March 19, 2007 7 - 8:30 P.M.
1. Governor Jon S. Corzine also took action on the following legislation. NEW LAWS SIGNED:
A-2987/S-2012 (Watson Coleman, Steele, Johnson, Chivukula, Conaway/Turner, Girgenti) – Requires court to conduct inquiry at prosecutor’s request concerning source of bail funds where defendant is charged with crime with bail restrictions.
2- HELP WANTED HTML Clerk to set up webpages
Law Office Edison
Growing Law Office needs Clerk to update website and help with law office. We sponsor a state wide website with information on litigation, personal injury, criminal and probate matters. Clerk/ programmer needed to update website. Applicants must have familiarity with HTML programming, web page design/ maintenance and Internet technology. If you can update a website, this is the job for you. Please indicate so in the first paragraph of your cover letter. $10.00 an hour start. Work 20 hours per week Monday- Thursday. You select the hours. Fax resume & cover letter to the Law Office of Kenneth Fax 732-572-0030
Great opportunity to obtain legal experience.
GENERAL DUTIES [Not included in Crit advertisement]
-General Office duties in Law Office
-Update mailing/ client lists and learn marketing
-Prepare correspondence to Law Journals and New Jersey Media with
Revised .-Provide copies of published articles to Judges, Prosecutors and other
New Jersey professionals.
-Ideal for person interested in the legal field, law enforcement or public relations/ media
-Occasional Telephone Answering
Must be dependable and committed to perfection for clients
Kenneth A. Vercammen, Esq.
3. Wills, The New Probate Law, Estate Administration & Elder Law
New Probate Law Effective 2006!
WHERE: Edison High School Community Adult Education
WHEN: Monday, March 19, 2007 7 - 8:30 P.M.
Please note, the Edison Board of Education is discontinuing its Community Adult Education program. This is your last opportunity to attend.
SPEAKER: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
- So you don't have a Will. You won't live forever and you can't take it with you. What should you do?
Main Topics:
1. Wills and the 2006 changes to the NJ Probate Law
2. Power of Attorney
3. Living Will
4. Administering the Estate/ Probate/Surrogate
5. Estate Planning
6. Revocable Trusts/ Irrevocable Trusts
7. Federal HIPAA Regulations on release of medical info
8. Federal Estate Tax
9. Question and Answer
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.njlaws.com.
EDISON COMMUNITY ADULT SCHOOL.
EDISON HIGH SCHOOL, Room 193, 50 Blvd. of Eagles, Edison, NJ
732-452-4574 John Russell, Director
-Free for Edison Seniors who pre register
$25 registration fee required by adult school for all others. Call the Adult Education Office for registration information 732-452-4574
Upcoming charity races:
3/18/2007 St. Paddy's 10 Mile Race & Leprechuan 5k 10 mile 10am, 5k, 10:15am Freehold NJ 732-431-2627 Free beer, Free food, long sleeve shirt USATF Sponsored by Freehold Area Running Club FARC www.farcnj.com
3/24/2007 CASC 5K 9:30 Hightstown NJ 732-742-6868
For more events visit www.metrorace.com
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Erase old criminal arrests and guilty pleas- New legal service available
ERASE/EXPUNGEMENT OF OLD ARRESTS TODAY TO AVOID EMBARRASSMENT AND DISCLOSURE
by KENNETH A. VERCAMMEN, ESQ.
Thousands of citizens in New Jersey over the past 20 years have been arrested for criminal, disorderly, and municipal ordinance offenses. They may include your neighbors, friends and loyal church worshipers. The courts and police must keep a record of all arrests and convictions, even if 20 years old. These "secrets of the past" could be open to anyone in New Jersey including credit agencies. Under one proposal, for a $15.00 fee, someone could ask the state police for a person's criminal record, even arrests with not guilty findings. Allowing access to a person's old criminal conviction or arrest record could open the door for discrimination against someone who now is a productive, respected, and law abiding citizen. Many employers often do a criminal background check on new and promoted employees.
Fortunately, if you are a law abiding citizen, you can now have old arrests or convictions erased from public records and police folders. Under NJSA 2C:52-1 et seq. past criminal convictions can be expunged/ erased under certain instances.
If someone has been arrested or even had a private criminal complaint signed against them in the Municipal Court, they have a criminal record, even if the charges were dismissed.
Under NJSA 2C:52-1 et seq. past criminal arrests and convictions can be expunged/ erased under certain instances. We always recommend individuals hire an attorney to obtain an expungement. The process for all expungements are held in the Superior Court. It takes a minimum of three months for the court to grant the expungement. The requirements are very formal. There can be a waiting period between 6 months up to 10 years after the criminal cases is finished.
When retaining the attorney, obtain a "certified disposition" of the court's decision, from the Court itself. Court costs and Legal fees for expungement range from $1,500- $2,500.
Upcoming Community Events
Feb. 10 ABA Elder Law meeting, Miami
Feb. 11 Cynthia's birthday
Feb. 10 JSRC Party
March 4 Belmar Parade
March 9 Friendly Sons Friday This year's dinner will be at the DoubleTree Hotel in Somerset, NJ The recipient of "Irishman of the Year" will be Assemblyman Patrick Deignan. The dinner will be a black tie, men only. Tickets will be $100.00 and made payable to Friendly Sons of St. Patrick. Call Kenneth Vercammen if interested. We are trying to set up a table.
March 11 St Patrick Parade - Woodbridge
March 19 Edison Will / Probate
March 21 Middlesex Bar Awards Dinner - Law Center
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
by KENNETH A. VERCAMMEN, ESQ.
Thousands of citizens in New Jersey over the past 20 years have been arrested for criminal, disorderly, and municipal ordinance offenses. They may include your neighbors, friends and loyal church worshipers. The courts and police must keep a record of all arrests and convictions, even if 20 years old. These "secrets of the past" could be open to anyone in New Jersey including credit agencies. Under one proposal, for a $15.00 fee, someone could ask the state police for a person's criminal record, even arrests with not guilty findings. Allowing access to a person's old criminal conviction or arrest record could open the door for discrimination against someone who now is a productive, respected, and law abiding citizen. Many employers often do a criminal background check on new and promoted employees.
Fortunately, if you are a law abiding citizen, you can now have old arrests or convictions erased from public records and police folders. Under NJSA 2C:52-1 et seq. past criminal convictions can be expunged/ erased under certain instances.
If someone has been arrested or even had a private criminal complaint signed against them in the Municipal Court, they have a criminal record, even if the charges were dismissed.
Under NJSA 2C:52-1 et seq. past criminal arrests and convictions can be expunged/ erased under certain instances. We always recommend individuals hire an attorney to obtain an expungement. The process for all expungements are held in the Superior Court. It takes a minimum of three months for the court to grant the expungement. The requirements are very formal. There can be a waiting period between 6 months up to 10 years after the criminal cases is finished.
When retaining the attorney, obtain a "certified disposition" of the court's decision, from the Court itself. Court costs and Legal fees for expungement range from $1,500- $2,500.
Upcoming Community Events
Feb. 10 ABA Elder Law meeting, Miami
Feb. 11 Cynthia's birthday
Feb. 10 JSRC Party
March 4 Belmar Parade
March 9 Friendly Sons Friday This year's dinner will be at the DoubleTree Hotel in Somerset, NJ The recipient of "Irishman of the Year" will be Assemblyman Patrick Deignan. The dinner will be a black tie, men only. Tickets will be $100.00 and made payable to Friendly Sons of St. Patrick. Call Kenneth Vercammen if interested. We are trying to set up a table.
March 11 St Patrick Parade - Woodbridge
March 19 Edison Will / Probate
March 21 Middlesex Bar Awards Dinner - Law Center
_____________________________
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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
New statute Imposes criminal penalties for certain actions concerning disposition of decedent's body parts
2. New statute Imposes criminal penalties for certain actions concerning disposition of decedent's body parts. S-2032/A-3016 (Buono, Vitale/Vainieri Huttle, Conaway, Bodine, Quigley, Greenstein) -
As amended by the committee, this bill imposes criminal penalties for certain actions concerning the disposition of a human decedent's body parts. Specifically:
A person who knowingly, for valuable consideration, purchases or sells a human body part for transplantation or therapy that was intended by the decedent to be donated after death, is guilty of a crime of the third degree (punishable by a fine of up to $50,000, three to five years imprisonment, or both).
This bill does not preclude a person from charging a reasonable amount for removing, processing, disposing, preserving, maintaining quality control, storing, transporting, or implanting a human body part.
A person who intentionally falsifies, forges, conceals, defaces, or obliterates a document by which a gift of all or part of a human body may be made pursuant to the "Uniform Anatomical Gift Act" (N.J.S.A. 26:6-57 et seq.), amends or revokes such a document, or any death record or document of medical or social history pertaining to the body or part of the donor, or a refuses to make a gift, in order to obtain a financial benefit or gain, is guilty of a crime of the second degree (punishable by a fine of up to $50,000, imprisonment for five to 10 years, or both).
· The bill also amends N.J.S.A. 2C:20-2 to make it a crime of the first degree (punishable by a fine of up to $200,000, imprisonment for 10 to 20 years, or both) to steal human remains by deception or falsification of a document by which a gift of all or part of a human body may be made pursuant to the "Uniform Anatomical Gift Act."
http://www.njleg.state.nj.us/2006/Bills/S2500/2032_S1.HTM
3 Recent cases: Confession made after arrest warrant admissible. State v. Bell 388 N.J. Super. 629 (App. Div. 2006)
Where police arrested defendant pursuant to an arrest warrant but without a search warrant for the third party's residence in which they found him, his confession, made later at the police station, need not be suppressed. Source: NJ Law Journal November 27, 2006
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
As amended by the committee, this bill imposes criminal penalties for certain actions concerning the disposition of a human decedent's body parts. Specifically:
A person who knowingly, for valuable consideration, purchases or sells a human body part for transplantation or therapy that was intended by the decedent to be donated after death, is guilty of a crime of the third degree (punishable by a fine of up to $50,000, three to five years imprisonment, or both).
This bill does not preclude a person from charging a reasonable amount for removing, processing, disposing, preserving, maintaining quality control, storing, transporting, or implanting a human body part.
A person who intentionally falsifies, forges, conceals, defaces, or obliterates a document by which a gift of all or part of a human body may be made pursuant to the "Uniform Anatomical Gift Act" (N.J.S.A. 26:6-57 et seq.), amends or revokes such a document, or any death record or document of medical or social history pertaining to the body or part of the donor, or a refuses to make a gift, in order to obtain a financial benefit or gain, is guilty of a crime of the second degree (punishable by a fine of up to $50,000, imprisonment for five to 10 years, or both).
· The bill also amends N.J.S.A. 2C:20-2 to make it a crime of the first degree (punishable by a fine of up to $200,000, imprisonment for 10 to 20 years, or both) to steal human remains by deception or falsification of a document by which a gift of all or part of a human body may be made pursuant to the "Uniform Anatomical Gift Act."
http://www.njleg.state.nj.us/2006/Bills/S2500/2032_S1.HTM
3 Recent cases: Confession made after arrest warrant admissible. State v. Bell 388 N.J. Super. 629 (App. Div. 2006)
Where police arrested defendant pursuant to an arrest warrant but without a search warrant for the third party's residence in which they found him, his confession, made later at the police station, need not be suppressed. Source: NJ Law Journal November 27, 2006
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
Broadens definition of "toxic chemical" in the drug statutes to include nitrous oxide
1. New statute Broadens definition of "toxic chemical" in the drug statutes to include nitrous oxide and other substances.
Governor Jon S. Corzine today took action on the following legislation. S-1280/A-3083 (Bryant/Fisher, Burzichelli) - This bill strengthens the prohibition on inhalation abuse, known as "huffing," by broadening the definition of "toxic chemical" in N.J.S.A. 2C:35-10.4.
Under current law, it is a disorderly persons offense to inhale the fumes of any toxic chemical for the purpose of causing a condition of intoxication or to possess any toxic chemical for the purpose of causing a condition of intoxication. A disorderly persons offense is punishable by a term of imprisonment of up to six months or a fine of up to $1,000 or both.
The bill defines "toxic chemical" as "any chemical or substance having the property of releasing toxic fumes," and provides that the term "toxic chemical" includes but is not limited to nitrous oxide, and any glue, cement, adhesive, paint remover or other substance containing a chemical capable of releasing vapors or fumes causing a condition of intoxication, inebriation, excitement, stupefaction, or dulling of the brain or nervous system.
The bill specifically provides that it does not apply to the lawful possession and use of nitrous oxide for the purpose of medical, surgical, or dental care by a person duly licensed to administer nitrous oxide, or to the lawful sale of nitrous oxide for non medical use.
The bill amends N.J.S.A. 2C:36-1 through N.J.S.A. 2C:36-3, the drug paraphernalia statutes, to include objects commonly associated with inhalation abuse, such as the following: compressed gas containers, such as tanks, cartridges or canisters, that contain food grade or pharmaceutical grade nitrous oxide as a principal ingredient; chargers or charging bottles, meaning metal, ceramic or plastic devices that contain an interior pin that may be used to expel compressed gas from a cartridge or canister; and tubes, balloons, bags, fabrics, bottles or other containers used to concentrate or hold in suspension a toxic chemical or the fumes of a toxic chemical. Use or possession of a toxic chemical under N.J.S. 2C:36-2 would be a disorderly persons offense. Distributing, dispensing or possessing with intent to distribute or manufacture a toxic chemical under N.J.S. 2C:36-3 would be a crime of the fourth degree punishable by a term of imprisonment not to exceed 18 months, a fine of up to $10,000 or both.
http://www.njleg.state.nj.us/2006/Bills/A3500/3083_S1.HTM
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
Governor Jon S. Corzine today took action on the following legislation. S-1280/A-3083 (Bryant/Fisher, Burzichelli) - This bill strengthens the prohibition on inhalation abuse, known as "huffing," by broadening the definition of "toxic chemical" in N.J.S.A. 2C:35-10.4.
Under current law, it is a disorderly persons offense to inhale the fumes of any toxic chemical for the purpose of causing a condition of intoxication or to possess any toxic chemical for the purpose of causing a condition of intoxication. A disorderly persons offense is punishable by a term of imprisonment of up to six months or a fine of up to $1,000 or both.
The bill defines "toxic chemical" as "any chemical or substance having the property of releasing toxic fumes," and provides that the term "toxic chemical" includes but is not limited to nitrous oxide, and any glue, cement, adhesive, paint remover or other substance containing a chemical capable of releasing vapors or fumes causing a condition of intoxication, inebriation, excitement, stupefaction, or dulling of the brain or nervous system.
The bill specifically provides that it does not apply to the lawful possession and use of nitrous oxide for the purpose of medical, surgical, or dental care by a person duly licensed to administer nitrous oxide, or to the lawful sale of nitrous oxide for non medical use.
The bill amends N.J.S.A. 2C:36-1 through N.J.S.A. 2C:36-3, the drug paraphernalia statutes, to include objects commonly associated with inhalation abuse, such as the following: compressed gas containers, such as tanks, cartridges or canisters, that contain food grade or pharmaceutical grade nitrous oxide as a principal ingredient; chargers or charging bottles, meaning metal, ceramic or plastic devices that contain an interior pin that may be used to expel compressed gas from a cartridge or canister; and tubes, balloons, bags, fabrics, bottles or other containers used to concentrate or hold in suspension a toxic chemical or the fumes of a toxic chemical. Use or possession of a toxic chemical under N.J.S. 2C:36-2 would be a disorderly persons offense. Distributing, dispensing or possessing with intent to distribute or manufacture a toxic chemical under N.J.S. 2C:36-3 would be a crime of the fourth degree punishable by a term of imprisonment not to exceed 18 months, a fine of up to $10,000 or both.
http://www.njleg.state.nj.us/2006/Bills/A3500/3083_S1.HTM
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
Thursday, February 15, 2007
Judge releases findings regarding Alcotest DWI machine
Judge releases findings regarding Alcotest DWI machine
After months of testimony and hearing, Court Special master Michael Patrick King rederered Findings and Conclusions Submitted to
Supreme Court on February 13, 2007 regarding the DWI Alcotest machine.
I. PROCEDURAL HISTORY
The case arises from quasi-criminal actions involving
twenty defendants who were arrested in Middlesex County for
driving while under the influence of alcohol in violation of
N.J.S.A. 39:4-50. Defendants challenged the admissibility and
reliability of breath test results obtained from the Alcotest
7110 MKIII-C, firmware version NJ 3.11 (Alcotest 7110).
On October 14, 2005 the Law Division granted the State's
motion to consolidate the cases pending as of May 23, 2005 in
several Middlesex County municipal courts. Among other things,
Judge Cantor denied the State's motion to take judicial notice
of the opinion in State v. Foley, 370 N.J. Super. 341, 359 (Law
Div. 2003), which ruled that the Alcotest 7110 MKIII-C was
scientifically accurate and reliable and that its reported
readings would be admitted into evidence without the need for
expert testimony. At the time of Foley, New Jersey was using
firmware version 3.8.
In her written statement of November 10, 2005 Judge Cantor
explained that the Alcotest 7110 MKIII-C was a new instrument
adopted throughout New Jersey on a county-by-county basis on a
sequential timetable. She emphasized that only the Camden
County, Law Division in Foley had found it scientifically
reliable and that Judge Orlando, in dictum, had concluded that
New Jersey should make certain changes in the instrument's
firmware and the instructions given to its users. Ibid.
Because the Alcotest 7110 MKIII-C was a novel scientific
instrument which had never been vetted by an appellate court or
our Supreme Court, Judge Cantor concluded that its scientific
reliability remained a justiciable issue.
On December 1, 2005 the Appellate Division granted the
State's motion for leave to appeal and denied its motion for a
summary reversal. The Appellate Division remanded the matter to
the trial court for an accelerated hearing on the validity of
breath tests for alcohol, obtained through the use of Alcotest
instruments.
On December 14, 2005 our Supreme Court certified the appeal
pending in the Appellate Division on its own motion pursuant to
R. 2:12-1. The Court vacated the remand to the Law Division and
remanded the matter to retired Appellate Division Judge Michael
Patrick King, to preside as a Special Master. The Court ordered
the Special Master to conduct a hearing and report his findings
and conclusions on an accelerated basis.
The Court ordered the Special Master to:
1. Conduct a plenary hearing on the
reliability of Alcotest breath test
instruments, including consideration of the
pertinent portions of the record in State v.
Foley, 370 N.J. Super. 341 (Law Div. 2003),
and the within matters in the Superior
Court, Law Division, Middlesex County,
together with such additional expert
testimony and arguments as may be presented
by the parties;
2. Determine whether the testimony
presented by the parties should be
supplemented by that of independent experts
selected by the Special Master;
3. Grant, in the Special Master's
discretion, motions by appropriate entities
seeking to participate as amici curiae, said
motions to be filed with the Special Master
within ten days of the filing date of this
Order;
4. Invite, in the Special Master's
discretion, the participation of entities or
persons as amici curiae or, to the extent
necessary in the interests of justice, as
intervenors to assist the Special Master in
the resolution of the issues before him; and
5. Within thirty days of the completion of
the plenary hearing, file findings and
conclusions with the Clerk of the Court and
contemporaneously serve a copy on the
7
parties and amici curiae, which service may
be effectuated by the posting of the report
on the Judiciary's website . . . .
The Court also ordered the parties, and permitted all amici
curiae who participated in the plenary hearing, to serve and
file initial briefs within fourteen days of the filing of the
Special Master's report as well as responses, if any, within ten
days. It further ordered the Clerk to set the matter for oral
argument on the first available date after completion of
briefing by the parties. Finally, the Court ordered the stay of
N.J.S.A. 39:4-50 proceedings pending in Middlesex County, and
directed all Superior and Municipal Court judges before whom
such proceedings were pending, to ensure strict enforcement of
the Court's Guidelines for Operation of Plea Agreements in the
Municipal Courts of New Jersey.
On January 9, 2006 the Special Master granted to the
Association of Criminal Defense Lawyers of New Jersey (ACDL)
leave to appear as amicus curiae. On January 23, 2006 the
Special Master also admitted the New Jersey State Bar
Association (NJSBA) as amicus curiae, under R. 1:13-9, in view
of the matter's public importance.
On January 10, 2006 the Court sua sponte issued an order
addressing issues that affected the prosecution of N.J.S.A.
39:4-50 offenses statewide. The Court ordered all prosecutions
and appeals which did not involve the Alcotest 7110 to proceed
in the normal course. The Court, however, ordered the stay of
prosecutions and appeals involving repeat offenders and the
execution of their sentences where the convictions were based
solely on Alcotest readings. The Court also ordered that first-
offender prosecutions proceed to trial based on clinical
evidence when available and on Alcotest readings. It ordered,
however, that the execution of sentences for all first offenders
be stayed pending disposition of the Court's final decision on
the Alcotest 7110's reliability, unless public interest required
their immediate implementation.
As explained by the Administrative Director, Judge
Carchman, in a clarifying memorandum to municipal court judges
dated January 17, 2006, a court could admit evidence of an
Alcotest reading, over the objection of defense counsel, without
first holding a hearing on the instrument's scientific
reliability. He further explained that under N.J.S.A. 39:4-
50(a)(2) and (3), the penalty for repeat offenders was the same
whether the finding of guilt was based on observation or blood
alcohol levels. However, for first offenders, the penalty could
vary, making the Alcotest reliability hearing of fundamental
importance.
On March 15, 2006 the Court entered an order directing the
Special Master to designate an independent expert or experts.
Upon deliberation and consultation with the parties and amici
curiae, the Special Master determined that a court-appointed
expert was not necessary for proof purposes, especially because
of the quasi-criminal nature of the proceedings.
Meanwhile, discovery proceeded. On February 3, 2006 the
Special Master entered an order directing the State to give
defendants certain information, documents and materials
pertaining to the Alcotest 7110's firmware, software,
algorithms, electronic schematics, and source codes. Among
other things, the discovery order recognized that the exchange
of firmware and software might require a protective order to be
submitted by the State or manufacturer for court approval. On
February 17, 2006 the Special Master entered a supplemental
discovery order directing the State to lend three Alcotest 7110s
to defense counsel and one to counsel for the amicus NJSBA.
Among other things, the supplemental discovery order also
allowed the manufacturer Draeger Safety Diagnostics, Inc.
(Draeger) to apply to intervene in this matter, especially
because of the issue of "trade secrets."
Draeger objected to the discovery orders claiming that they
permitted the release of trade secrets and proprietary
information. On February 23, 2006 Draeger's intellectual
property counsel prepared a proposed protective order and sent
it to the State for submission to the court.
Draeger's proposal
included a request for indemnification from defense counsel. In
response to defendants' objections to Draeger's initial draft
After months of testimony and hearing, Court Special master Michael Patrick King rederered Findings and Conclusions Submitted to
Supreme Court on February 13, 2007 regarding the DWI Alcotest machine.
I. PROCEDURAL HISTORY
The case arises from quasi-criminal actions involving
twenty defendants who were arrested in Middlesex County for
driving while under the influence of alcohol in violation of
N.J.S.A. 39:4-50. Defendants challenged the admissibility and
reliability of breath test results obtained from the Alcotest
7110 MKIII-C, firmware version NJ 3.11 (Alcotest 7110).
On October 14, 2005 the Law Division granted the State's
motion to consolidate the cases pending as of May 23, 2005 in
several Middlesex County municipal courts. Among other things,
Judge Cantor denied the State's motion to take judicial notice
of the opinion in State v. Foley, 370 N.J. Super. 341, 359 (Law
Div. 2003), which ruled that the Alcotest 7110 MKIII-C was
scientifically accurate and reliable and that its reported
readings would be admitted into evidence without the need for
expert testimony. At the time of Foley, New Jersey was using
firmware version 3.8.
In her written statement of November 10, 2005 Judge Cantor
explained that the Alcotest 7110 MKIII-C was a new instrument
adopted throughout New Jersey on a county-by-county basis on a
sequential timetable. She emphasized that only the Camden
County, Law Division in Foley had found it scientifically
reliable and that Judge Orlando, in dictum, had concluded that
New Jersey should make certain changes in the instrument's
firmware and the instructions given to its users. Ibid.
Because the Alcotest 7110 MKIII-C was a novel scientific
instrument which had never been vetted by an appellate court or
our Supreme Court, Judge Cantor concluded that its scientific
reliability remained a justiciable issue.
On December 1, 2005 the Appellate Division granted the
State's motion for leave to appeal and denied its motion for a
summary reversal. The Appellate Division remanded the matter to
the trial court for an accelerated hearing on the validity of
breath tests for alcohol, obtained through the use of Alcotest
instruments.
On December 14, 2005 our Supreme Court certified the appeal
pending in the Appellate Division on its own motion pursuant to
R. 2:12-1. The Court vacated the remand to the Law Division and
remanded the matter to retired Appellate Division Judge Michael
Patrick King, to preside as a Special Master. The Court ordered
the Special Master to conduct a hearing and report his findings
and conclusions on an accelerated basis.
The Court ordered the Special Master to:
1. Conduct a plenary hearing on the
reliability of Alcotest breath test
instruments, including consideration of the
pertinent portions of the record in State v.
Foley, 370 N.J. Super. 341 (Law Div. 2003),
and the within matters in the Superior
Court, Law Division, Middlesex County,
together with such additional expert
testimony and arguments as may be presented
by the parties;
2. Determine whether the testimony
presented by the parties should be
supplemented by that of independent experts
selected by the Special Master;
3. Grant, in the Special Master's
discretion, motions by appropriate entities
seeking to participate as amici curiae, said
motions to be filed with the Special Master
within ten days of the filing date of this
Order;
4. Invite, in the Special Master's
discretion, the participation of entities or
persons as amici curiae or, to the extent
necessary in the interests of justice, as
intervenors to assist the Special Master in
the resolution of the issues before him; and
5. Within thirty days of the completion of
the plenary hearing, file findings and
conclusions with the Clerk of the Court and
contemporaneously serve a copy on the
7
parties and amici curiae, which service may
be effectuated by the posting of the report
on the Judiciary's website . . . .
The Court also ordered the parties, and permitted all amici
curiae who participated in the plenary hearing, to serve and
file initial briefs within fourteen days of the filing of the
Special Master's report as well as responses, if any, within ten
days. It further ordered the Clerk to set the matter for oral
argument on the first available date after completion of
briefing by the parties. Finally, the Court ordered the stay of
N.J.S.A. 39:4-50 proceedings pending in Middlesex County, and
directed all Superior and Municipal Court judges before whom
such proceedings were pending, to ensure strict enforcement of
the Court's Guidelines for Operation of Plea Agreements in the
Municipal Courts of New Jersey.
On January 9, 2006 the Special Master granted to the
Association of Criminal Defense Lawyers of New Jersey (ACDL)
leave to appear as amicus curiae. On January 23, 2006 the
Special Master also admitted the New Jersey State Bar
Association (NJSBA) as amicus curiae, under R. 1:13-9, in view
of the matter's public importance.
On January 10, 2006 the Court sua sponte issued an order
addressing issues that affected the prosecution of N.J.S.A.
39:4-50 offenses statewide. The Court ordered all prosecutions
and appeals which did not involve the Alcotest 7110 to proceed
in the normal course. The Court, however, ordered the stay of
prosecutions and appeals involving repeat offenders and the
execution of their sentences where the convictions were based
solely on Alcotest readings. The Court also ordered that first-
offender prosecutions proceed to trial based on clinical
evidence when available and on Alcotest readings. It ordered,
however, that the execution of sentences for all first offenders
be stayed pending disposition of the Court's final decision on
the Alcotest 7110's reliability, unless public interest required
their immediate implementation.
As explained by the Administrative Director, Judge
Carchman, in a clarifying memorandum to municipal court judges
dated January 17, 2006, a court could admit evidence of an
Alcotest reading, over the objection of defense counsel, without
first holding a hearing on the instrument's scientific
reliability. He further explained that under N.J.S.A. 39:4-
50(a)(2) and (3), the penalty for repeat offenders was the same
whether the finding of guilt was based on observation or blood
alcohol levels. However, for first offenders, the penalty could
vary, making the Alcotest reliability hearing of fundamental
importance.
On March 15, 2006 the Court entered an order directing the
Special Master to designate an independent expert or experts.
Upon deliberation and consultation with the parties and amici
curiae, the Special Master determined that a court-appointed
expert was not necessary for proof purposes, especially because
of the quasi-criminal nature of the proceedings.
Meanwhile, discovery proceeded. On February 3, 2006 the
Special Master entered an order directing the State to give
defendants certain information, documents and materials
pertaining to the Alcotest 7110's firmware, software,
algorithms, electronic schematics, and source codes. Among
other things, the discovery order recognized that the exchange
of firmware and software might require a protective order to be
submitted by the State or manufacturer for court approval. On
February 17, 2006 the Special Master entered a supplemental
discovery order directing the State to lend three Alcotest 7110s
to defense counsel and one to counsel for the amicus NJSBA.
Among other things, the supplemental discovery order also
allowed the manufacturer Draeger Safety Diagnostics, Inc.
(Draeger) to apply to intervene in this matter, especially
because of the issue of "trade secrets."
Draeger objected to the discovery orders claiming that they
permitted the release of trade secrets and proprietary
information. On February 23, 2006 Draeger's intellectual
property counsel prepared a proposed protective order and sent
it to the State for submission to the court.
Draeger's proposal
included a request for indemnification from defense counsel. In
response to defendants' objections to Draeger's initial draft
Saturday, January 27, 2007
Law requiring convicted criminals to provide DNA sample constitutional. State v. John O’Hagen (A-70-05)
State v. John O’Hagen (A-70-05) 1-24-07
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. Law requiring convicted criminals to provide DNA sample constitutional.
1-24-07 A.A., by his parent and guardian B.A., v. Attorney
General of the State of New Jersey et als.(A-105-05)
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.
1-18-07 State v. Vincent Dispoto (A-103-05)
Because there was insufficient evidence to support the issuance
of the underlying domestic violence search warrant, the criminal
search warrant was invalid as fruit of the poisonous tree.
While this holding renders moot the Appellate Division’s finding
that failure to re-administer Miranda warnings at the time of
arrest required suppression of Dispoto’s post-arrest
incriminating statements, the Court adds in respect of the issue
of the Miranda warnings only that no bright line or per se rule
governs whether re-administratiocustodial Miranda warning.
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. Law requiring convicted criminals to provide DNA sample constitutional.
1-24-07 A.A., by his parent and guardian B.A., v. Attorney
General of the State of New Jersey et als.(A-105-05)
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.
1-18-07 State v. Vincent Dispoto (A-103-05)
Because there was insufficient evidence to support the issuance
of the underlying domestic violence search warrant, the criminal
search warrant was invalid as fruit of the poisonous tree.
While this holding renders moot the Appellate Division’s finding
that failure to re-administer Miranda warnings at the time of
arrest required suppression of Dispoto’s post-arrest
incriminating statements, the Court adds in respect of the issue
of the Miranda warnings only that no bright line or per se rule
governs whether re-administratiocustodial Miranda warning.
internet subscriber has an expectation of privacy
State of New Jersey v. Shirley Reid 01-22-07
A-3424-05T5
The Appellate Division held that an internet subscriber has an expectation of
privacy in information on file with the internet provider
identifying her as the user associated with an anonymous "screen
name." Since the police obtained that identifying information
by means of an invalid subpoena, issued by a municipal court
administrator and returnable on the date of issuance, the order
suppressing the evidence obtained from the internet provider was
affirmed.
A-3424-05T5
The Appellate Division held that an internet subscriber has an expectation of
privacy in information on file with the internet provider
identifying her as the user associated with an anonymous "screen
name." Since the police obtained that identifying information
by means of an invalid subpoena, issued by a municipal court
administrator and returnable on the date of issuance, the order
suppressing the evidence obtained from the internet provider was
affirmed.
Sunday, January 21, 2007
No warrantless search of auto after occupants are out.
State v. Eckel 185 NJ 523 (2006).
A warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger police or destroy evidence cannot be justified under any exception to the warrant requirement and is unreasonable. Once the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception in inapplicable. If the occupant has been arrested but not removed and secured, the court will have to determine on a case-by-case basis whether the suspect was in a position to compromise police safety or evidence to justify resort to the search incident to arrest exception.
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
A warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger police or destroy evidence cannot be justified under any exception to the warrant requirement and is unreasonable. Once the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception in inapplicable. If the occupant has been arrested but not removed and secured, the court will have to determine on a case-by-case basis whether the suspect was in a position to compromise police safety or evidence to justify resort to the search incident to arrest exception.
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
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