2053 Woodbridge Avenue - Edison, NJ 08817

Kenneth Vercammen is a trial attorney in Edison, NJ. He is a speaker at the annual Nuts & Bolts of Estate Administration & Elder Law program, American Bar Association General Practice Division. New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week litigation and contested Probate hearings.

Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

Wednesday, April 13, 2016

E490: 1. Recent Cases: Improper for Judge to File Contempt Proceeding then Serve as Judge of Case. 2. 3rd Party Intervention still does not Permit Police to Search Private Home. 3. Protective Sweep of Car's Interior not Permitted. 4. Community Events 5. Nuts and Bolts of Elder Law for Attorneys and paralegals Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and paralegals April 18, 2016

In this issue:
1. Recent Cases: Improper for Judge to File Contempt Proceeding then Serve as Judge of Case.
2. 3rd Party Intervention still does not Permit Police to Search Private Home.  
3. Protective Sweep of Car's Interior not Permitted. 
4. Community Events 
5. Nuts and Bolts of Elder Law for Attorneys and paralegals
Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and paralegals April 18, 2016
 
1. Recent Cases: Improper for Judge to File Contempt Proceeding then Serve as Judge of Case. Ippolito v Ippolito 443 NJ Super. 1  (App. Div. 2015)  
       In this matrimonial action, the family judge instituted a contempt proceeding, pursuant to Rule 1:10-2, against defendant upon the judge's receipt of a letter from plaintiff's counsel claiming that defendant violated an order which prohibited defendant from "threatening or intimidating any expert in this matter." Because the judge presided over the very contempt proceeding he initiated, failed to appoint counsel to prosecute the matter, and shifted the burden of persuasion to defendant, the court vacated the order under review and remanded the contempt proceeding to the assignment judge to designate another judge to preside over the contempt proceeding.
 
2. 3rd Party Intervention still does not Permit Police to Search Private Home. State v. Wright 221 NJ 456 (2015)  
       The third-party intervention or private search doctrine does not exempt law enforcement's initial search of defendant's home from the warrant requirement. Absent exigency or some other exception to the warrant requirement, the police must get a warrant to enter a private home and conduct a search, even if a private actor has already searched the area and notified law enforcement.
 
3. Protective Sweep of Car's Interior not Permitted. State v Robinson 441 NJ Super. 33 (App. Div. 2015) cert denied
     The court reverses an order denying defendant's motion to suppress the handgun seized in a "protective sweep" of his car.
       Following a routine late-night traffic stop on the Garden State Parkway, police dispatch advised the patrol officer that defendant driver and one of his three passengers had open warrants and were known to carry weapons. Deciding to proceed "tactically," five officers approached with guns drawn and ordered all occupants out of the car. The two men with warrants were arrested and placed in patrol cars. Neither of the two remaining passengers possessed a driver's license. Because there are no facts in the record to support a reasonable suspicion on the part of the officer that the unlicensed drivers were dangerous and could return to the car to obtain immediate access to a weapon, the court deems the search unreasonable.
        Judge Nugent dissents, concluding the totality of circumstances justified both the officer's belief that a gun was in the car and his protective sweep for the safety of the officers on the scene as well as the public under the community caretaking doctrine.
 
4. Community Events:
April 11 Metuchen Library
Wills, Estate Planning & Probate Seminar
at 7:00pm Free community program
480 Middlesex Ave, Metuchen, NJ 08840
You do not have to be a Metuchen resident to attend but registration requested
(732) 632-8526

5. Nuts and Bolts of Elder Law for Attorneys and paralegals
Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and paralegals April 18, 2016
April 18  5:00 PM- 9:00 PM NJ Law Center 
    Includes a 240 + page book, plus CD with sample forms, documents & checklists! and dinner
  Speakers:
-KENNETH A. VERCAMMEN, ESQ. Co-Chair, ABA Estate Planning & Probate Committee, Past GP Solo Section Attorney of the Year
-WILLIAM P. ISELE, ESQ. Past NJ Ombudsman for the Elderly
-MARTIN A. SPIGNER, ESQ. Law Office of Martin A. Spigner, Cranbury
-ADAM DUBECK, Esq.
Tuition $137 - $180 General Tuition
Tuition, reduced fee for NJSBA Elder & Disability Law Section and NJSBA Young Lawyers Division, Free for Superior Court Judges, Seminar #S15900W6

More details contact New Jersey Institute for Continuing Legal Education.  The non-profit continuing education service of The New Jersey State Bar Association, Constitution Square, New Brunswick, New Jersey, 08901-1520.   Phone: 732-214-8500



If you are happy with our services, please be sure to like us on facebook, follow us on twitter, and endorse us on Linked in:
 
 https://www.linkedin.com/in/kennethvercammen
 https://twitter.com/kenvercammen
 https://www.facebook.com/Kenneth-Vercammen-Associates-PC-Law-Office-Edison-NJ-08817-149816077985/
 
 Editorial assistance provided by Gailen Davis. Ms. Davis is participating in Kenneth Vercammen's Spring Law Clerk Internship Program and will be attending law school in the fall.
 
Editor's Note and Disclaimer:
All materials Copyright 2016. 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

Tuesday, March 29, 2016

E489: 1. Recent cases: Double jeopardy bars crime prosecution if there is a plea in municipal court. 2. Criminal mischief is grounds for domestic violence. 3. If You Are Hurt In An Accident, We Can Help 4. Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys



 
In this issue:
1. Recent cases: Double jeopardy bars crime prosecution if there is a plea in municipal court.
2. Criminal mischief is grounds for domestic violence.
3. If You Are Hurt In An Accident, We Can Help
4. Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys


1. Recent cases: Double jeopardy bars crime prosecution if there is a plea in municipal court.  
State vs. 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 video conference 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.

2. Criminal mischief is grounds for domestic violence.
N.T.B. VS. D.D.B. 442NJ Super. 205 (App. Div. 2015)
      In this appeal, the court determined that a spouse's damage of a door within the couple's jointly-owned marital home may constitute the predicate act of "criminal mischief," N.J.S.A. 2C:17-3, through harm to the "property of another," thereby supporting a finding of an act of domestic violence pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.

3. If You Are Hurt In An Accident, We Can Help
         If you are hurt in a car, slip and fall or other type of accident, please call us. We are dedicated to providing the highest quality of legal representation to accident victims. We represent accident victims only - Not insurance companies.  We Will fight for your rights and try to resolve your claim as fast as possible, with the goal being to obtain the maximum compensation for you. If we cannot help, we can possibly refer you to another attorney who handles the type of case

4. Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys

April 18 5:00 PM- 9:00 PM NJ Law Center
Includes a 240 + page book, plus CD with sample forms, documents & checklists! Also, dinner will be served.

  Speakers:
-KENNETH A. VERCAMMEN, ESQ. Co-Chair, ABA Estate Planning & Probate Committee, Past GP Solo Section Attorney of the Year
Past NJSBA Municipal Court Practitioner of the Year Edison, NJ
-WILLIAM P. ISELE, ESQ. Past NJ Ombudsman for the Elderly
-MARTIN A. SPIGNER, ESQ. Law Office of Martin A. Spigner, Cranbury
-ADAM DUBECK, Esq.
$137-$180.00

General Tuition, reduced fee for NJSBA Elder and Disability Law Section and NJSBA Young Lawyers Division ( Free for Superior Court Judges) Seminar # S15900W6

NJSBA Member Price is reduced- To qualify for this reduced price, you must provide your NJSBA member # at the time you place your order. If you place your order without providing your NJSBA member # you will be charged the regular price.

More details contact New Jersey Institute for Continuing Legal Education The non-profit continuing. The non- profit continuing education service of The New Jersey State Bar Association Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732) 214-8500

Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today's society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.

This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You'll also gain insight on how Federal Medicaid Reform will impact your practice.

Everything you need to know about elder law & estate administration including:
* Why Have a Will? - Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client?
* Powers of Attorney - Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms
* Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool - Why it should be used; Ethics - who is the client?; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms
* Basic Tax Considerations - Jointly-held property; "I love you" Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters
* Estate Administration - New Probate Law in New Jersey - Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists
* Medicaid Planning in Light of Federal Medicaid Reform - Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules; probate; undue influence; competency and more

NJ CLE INFORMATION: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 4.6 hours of total CLE credit. Of these, 1.2 qualify as hours of credit for ethics/professionalism.
           Presented in cooperation with the NJSBA Elder & Disability Law Section and NJSBA Young Lawyers Division

Materials in 240 page Book provided to all attendees

If you are happy with our services, please be sure to like us on facebook, follow us on twitter, and endorse us on Linked in:

Editorial assistance provided by Isabel Hager-Johnson. Ms. Hager-Johnson is participating in Kenneth Vercammen's Spring Law Clerk Internship Program and will be attending law school in the fall.

Editor's Note and Disclaimer:
All materials Copyright 2016. 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

Friday, March 11, 2016

E488: 1. Hearsay Rules Permitted Introduction of Drug and School Zone Map 2.Physical Contact not Required if Leaving the Scene

In this Issue:
1.  Recent cases: Hearsay Rules Permitted Introduction of Drug and School Zone Map.
2.   Physical Contact not Required if Leaving the Scene. 
3.   Pat-down in Safer Area Permitted. 
4.   Community Events 
5.   The following are MVC points for NJ Motor Vehicle violations.

1.  Hearsay Rules Permitted Introduction of Drug and School Zone Map. State vs. Wilson 442 NJ Super. 224 (App. Div. 2015) 
     Admission of an official park-zone map, see N.J.S.A. 2C:35-7.1(e), does not violate the Confrontation Clause.

2. Physical Contact Not Required if Leaving the Scene.  State vs. Sene __ NJ Super. __ (App. Div. 2015) A-2256-13T1
     The question of first impression presented on this appeal is whether contact between defendant's vehicle and a victim is a necessary element of leaving the scene of an accident in violation of N.J.S.A. 2C:11-5.1. Defendant was driving a taxi when a pedestrian stepped into his lane of traffic. The pedestrian fell into the adjoining lane of traffic and was killed when she was run over by another vehicle. Defendant did not stop his taxi at the scene and left without speaking to anyone. A jury convicted him of leaving the scene of a fatal motor vehicle accident under N.J.S.A. 2C:11-5.1. On appeal, defendant contends that a necessary element to the crime is contact between his vehicle and the victim. The Court disagrees and holds that such contact is not an element of this crime. The Court also hold that N.J.S.A. 2C:11-5.1 is not unconstitutionally vague. We, therefore, affirm defendant's second-degree criminal conviction.

3. Pat-down in Safer Area Permitted.  State v. Watts __ NJ __ (2015) (A-21-14)
       The police did not act in an objectively unreasonable manner in violation of the Federal and State Constitutions by conducting an initial pat-down of defendant and detaining defendant for a thorough search in a more controlled, safe, and secure location.

4. Community Events:

Mar 7   Municipal Court College  5:30-9 Law Center
              2016 MUNICIPAL COURT COLLEGE
              https://www.facebook.com/events/1674456042792968/

Mar 8   Edison Library
              Wills, Estate Planning & Probate Seminar
              at 7pm   Free community program
 https://www.facebook.com/events/1262180170466016/

Mar 10  Wills & Power of Attorney Seminar at 7pm
               Piscataway Library Kennedy Branch
               500 Hoes Lane Piscataway NJ 08854
               https://www.facebook.com/events/191720137852734/

Mar 11  Friendly Sons of St. Patrick dinner, Friday
           This year's dinner will be held at the Pines Manor in Edison, NJ. Black tie, men only,  The recipient of "Irishman of the Year" is PBA President Pat Colligan.  Tickets are $100 and made payable to Friendly Sons of St. Patrick.  To buy tickets call Kevin Hoagland at 732-745-3818.  We are trying to setup a table. Call Kenneth Vercammen if interested at 732-572-0500.  The dinner draws influential attorneys, judges and professionals from Central NJ.  Cocktails 7PM.  Dinner at 8:30PM.

Mar 12  South Amboy Parade Saturday,
               Inclement weather date is March 19, 2016
  https://www.facebook.com/events/211746785844633

Mar 13  St. Paddy's 8k now [approx. 5 miles]    9:30 Freehold   Keg of beer and some food   great FARC event keg is outside. Dress warm FARC is a 501(c) 3 not for profit organization. which typically donate over $25,000 each year to local charities.
             https://www.facebook.com/events/1542842286035501/

Mar 13    Woodbridge Parade  (steps off at 1:30 pm)
      https://www.facebook.com/events/1639220333019786/

Mar 14    NJSBA Municipal Court Section meeting 4-6 Law Center

Mar 19   Keyport Saint Patrick's Day Parade at 1:00 PM.
            https://www.facebook.com/Keyport-St-Patricks-Day-Parade-197482333774820/

               Or Highlands Saint Patrick's Day Parade at 2.00 pm
               https://www.facebook.com/events/313870302136949/

Mar 20  Miles for Music 20K Race Johnson Park,
               Piscataway 9am and 5k FB
               https://www.facebook.com/events/1698296557083093/

5. The following are MVC Points for NJ Motor Vehicle Violations.

VIOLATION
POINTS
27:23-29 Moving against traffic-NJ Tpke., Garden State Pkwy. and Atlantic City Expressway
2
27:23-29 Improper passing-NJ Tpke., Garden State Pkwy. and Atlantic City Expressway
4
27:23-29 Unlawful use of median strip-NJ Tpke., Garden State Pkwy. and Atlantic City Expressway
2
39:3-29 Operating Constructor vehicle in excess of 30 mph
3
39:4-14.3 Operating motorized bicycle on restricted highway
2
39:4-14.3d More than 1 person on a motorized bicycle.
2
39:4-35 Failure to yield to pedestrian in crosswalk
2
39:4-36 Failure to yield to pedestrian or passing a vehicle yielding to pedestrian in crosswalk
2
39:4-41 Driving through safety zone.
2
39:4-52 Racing on Highway
5
39:4-55 Improper action or omission on grades and curves
2
39:4-57 Failure to observe directions of officer.
2
39:4-66 Failure to stop before crossing sidewalk
2
39:4-66.1 Failure to yield to pedestrians or vehicles while entering or leaving highway
2
39:4-66.2 Driving on private property to avoid traffic signal or stop sign
2
39:4-71 Improper driving on sidewalk
2
39:4-80 Failure to obey direction of officer
2
39:4-81 Failure to observe traffic signal
2
39:4-82 Failure to keep right
2
39:4-82.1 Improper operating of vehicle on divided highway or divider
2
39:4-83 Failure to keep right at intersection
2
39:4-84 Failure to pass right of vehicle proceeding in opposite direction
5
39:4-85 Improper passing on right or off roadway
4
39:4-85.1 Wrong way on one-way street
2
39:4-86 Improper passing, in "No Passing" zone
4
39:4-87 Failure to yield to overtake vehicle
2
39:4-88 Failure to observe traffic lanes
2
39:4-89 Tailgating
5
39:4-90 Failure to yield at intersection
2
39:4-90.1 Failure to use proper entrances to limited access highway
2
39:4-91  Failure to yield to emergency vehicle
2

39:4-91-92
Failure to yield to emergency vehicles 2
2

39:4-96 Reckless driving
5
39:4-97 Careless driving
2
39:4-97a Destruction of agricultural or recreational property
2

39:4-97.2 3rd offense     4 points
39:4-97.1 Slow speed blocking traffic                


2
39:4-98 or Speeding up to 14mph above limit
2
39:4-99 Speeding 15-29 mph above limit
4
Speeding 30 mph or more above limit
5
39:4-105 Failure to stop at traffic light
2
39:4-115 Improper turn at traffic light
3
39:4-119 Failure to stop at flashing red signal
2
39:4-122 Failure to stop for police whistle
2
39:4-123 Improper right or left turn
3
39:4-124 Improper turn: from approved turning course
3
39:4-125 Improper U-turn
3
39:4-126 Failure to give proper signal
2
39:4-127 Improper backing or turn in street
2
39:4-127.1 Improper crossing of railroad grade crossing
2
39:4-127.2 Improper crossing of bridge
2
39:4-128 Improper crossing of railroad grade crossing by certain vehicles
2
39:4-128.1 Improper passing of school bus
5
39:4-128.4 Improper passing of frozen dessert truck
4
39:4-129 Leaving scene of accident- No injuries
2
39:4-129 Personal Injury
8
39:4-144 Failure to observe of stop or yield signs
2
39:5D-4 Moving violation out-of-state
2
http://www.njlaws.com/dmv_and_points.htm

Wednesday, March 09, 2016

E487: 1. Liability of Owner of Commercial Property for Defects, Snow and Ice Accumulation and Other Dangerous Conditions in Abutting Sidewalks. 2 Odor of Marijuana probable cause for search.

In this issue:

1. Liability of Owner of Commercial Property for Defects, Snow and Ice Accumulation and Other Dangerous Conditions in Abutting Sidewalks. 2 Odor of Marijuana probable cause for search.

1. Liability of Owner of Commercial Property for Defects, Snow and Ice Accumulation and Other Dangerous Conditions in Abutting Sidewalks. 

           The law imposes upon the owner of commercial or business property the duty to use reasonable care to see to it that the sidewalks abutting the property are reasonably safe for members of the public who are using them. In other words, the law says that the owner of commercial property must exercise reasonable care to see to it that the condition of the abutting sidewalk is reasonably safe and does not subject pedestrians to an unreasonable risk of harm. The concept of reasonable care requires the owner of commercial property to take action with regard to conditions within a reasonable period of time after the owner becomes aware of the dangerous condition or, in the exercise of reasonable care, should have become aware of it.
          If there was a condition of this sidewalk that was dangerous in that it created an unreasonable risk of harm for pedestrians, and if the owner knew of that condition or should have known of it but failed to take such reasonable action to correct or remedy the situation within a reasonable period of time thereafter as a reasonably prudent commercial or business owner would have done under the circumstances, then the owner is negligent.
          No one plans on being injured in an accident, whether it is a car accident, fall down or other situation. Speak with a personal injury attorney immediately to retain all your rights. The stores are responsible for the maintenance of their premises, which are used by the public. It is the duty of the store to inspect and keep said premises in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to persons lawfully thereon.
         If the unsafe condition is alleged to be snow and ice, N.J.S.A. 40:64-12 and any ordinance adopted by the municipality might be charged as a factor, the jury should consider the reasonableness of the time the defendant(s) has (have) waited to remove or reduce a snow or ice condition from the sidewalk.
         What actions must the owner of commercial property take with regard to defects / snow / ice accumulation/ dangerous conditions? The action required by the law is action which a reasonably prudent person would take or should have taken in the circumstances present to correct the defect / snow / ice accumulation/ dangerous condition, to repair it/remove it or to take other actions to minimize the danger to pedestrians (for example, to give warning of it) within a reasonable period of time after notice thereof. The test is: did the commercial property owner take the action that a reasonably prudent person who knows or should have known of the condition would have taken in that circumstance? If he/she did, he/she is not negligent. If he/she did not, he/she is negligent.
If you are injured, after seeking medical treatment and advising the store/mall, CALL KENNETH A. VERCAMMEN, ESQ. 732-572-0500 for an Appointment.
More info at: http://www.njlaws.com/fall_down_injuries_on_snow.htm

2. Odor of Marijuana probable cause for search. 

State v Myers 442 NJ Super. 287 (App. Div. 2015)
The odor of marijuana has long been held to provide probable cause of the commission of a marijuana offense. Under the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to -16, registered qualifying patients receive registry identification cards, and their medical use of marijuana as authorized by the CUMMA is exempt from criminal liability under N.J.S.A. 2C:35- 18. Where, as here, there is no evidence that the person suspected of possessing or using marijuana has a registry identification card, the odor of marijuana still provides probable cause of the commission of a marijuana offense. Here, the odor of burnt marijuana emanating from defendant's car gave the officer probable cause to arrest him for a marijuana offense committed in the officer's presence.

Editorial Assistance Provided by Juhi Duggirala. Ms. Duggirala is participating in Ken Vercammen's Fall Internship Program and currently attends Kean University.

Editor's Note and Disclaimer: All materials Copyright 2015. 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

Tuesday, February 09, 2016

E486: 1. New Expungement Law permits petitions for Expungement of arrests in shorter time periods. 2. 2016 update Wills and Estate Planning Seminar materials


In this issue:
1. New Expungement Law permits petitions for Expungement of arrests in
shorter time periods.
2. 2016 update Wills and Estate Planning Seminar materials, By Kenneth
Vercammen

1. New Expungement Law permits petitions for Expungement of arrests
in shorter time periods.

        This is an excellent law to help non-violent offenders.

         This new law establishes new expungement procedures for records and
information pertaining to crimes and offenses, including procedures for
persons who are, or previously have been, successfully discharged from the
State's special probation drug court program. It also provides shorter waiting
periods before certain records and information become expungeable.
         You can now get expungements for both the crime and the disorderly
persons convictions.

        The new law takes effect until April 18, 2016.

        The time period for expunging a Municipal Court criminal charge may be
reduced to 3 years if you can show exception circumstances. Otherwise it
stays 5 years.

         Regarding a person with a criminal conviction, that person would be
permitted to make an application with an expungement petition to the
Superior Court in the county in which the criminal conviction was adjudged.
That application could include additional, separate petitions seeking to
expunge no more than two other convictions for disorderly persons or petty
disorderly persons offenses. The application could only be filed after the
expiration of five years from the date of the person's most recent conviction,
payment of fine, satisfactory completion of probation or parole, or release
from incarceration, for the crime or for any disorderly persons or petty
disorderly persons offense, whichever is later (the waiting period under
current law for a criminal conviction expungement is ordinarily 10 years).
Alternatively, the court could grant an expungement on the application if less
than five years has expired from the payment of any fine but the five-year
waiting period is otherwise satisfied, and the court finds that the person
substantially complied with any payment plan for that fine or could not do so
due to compelling circumstances.
          Regarding a person with a conviction for a disorderly persons or petty
disorderly persons offense, but no criminal conviction, that person would be
permitted to make an application with an expungement petition to the
Superior Court concerning that offense following a procedure similar to that
used for criminal convictions. The application, like an application
concerning a criminal conviction, could include additional, separate petitions
seeking to expunge no more than two other convictions for disorderly
persons or petty disorderly persons offenses. The application could only be
filed after the expiration of three years from the date of the person's most
recent conviction, payment of fine, satisfactory completion of probation or
parole, or release from incarceration for any disorderly persons or petty
disorderly persons offense, whichever is later (the waiting period on
convictions for such offenses under current law is five years). Alternatively,
the court could grant an expungement on the application if less than three
years has expired from the payment of any fine but the three-year waiting
period is otherwise satisfied, and the court finds that the person substantially
complied with any payment plan for that fine or could not do so due to
compelling circumstances.
          Regarding a person with an arrest or charge that did not result in a
conviction or finding of guilt, whether the proceedings were dismissed, or
the person acquitted or discharged, upon a person presenting an application
for expungement:
 (1) if the proceedings took place in Superior Court, the court, at the time
of dismissal, acquittal, or discharge, would order the expungement of all
records and information relating to the arrest or charge; or
 (2) if the proceedings took place in municipal court, the municipal court
would provide the person with appropriate documentation to transmit to the
Superior Court to request an expungement, and the Superior Court, upon
receipt of the documentation with an expungement request would take action
to order the expungement of all records and information relating to the arrest
or charge. A person seeking such an expungement of municipal court
matters would not be charged an application fee for taking such action.
           An expungement related to a dismissal, acquittal, or discharge without a
conviction or finding of guilt would not be available whenever the dismissal,
acquittal, or discharge resulted from a plea bargaining agreement involving
the conviction of other charges. However, this bar on such expungements
would no longer apply once the conviction connected to the plea bargain was
itself expunged.
            If the person did not apply for an expungement related to a dismissal,
acquittal, or discharge at the time such action occurred, the person could, at
any time following the disposition of proceedings, present to the Superior
Court in the county in which the disposition occurred an application with a
duly verified petition, containing relevant details concerning the applicant
and the arrest or charge for which the expungement is sought. The person,
pursuing this "after the fact" expungement application, would also not be
charged an application fee.
            A copy of any Superior Court order of expungement related to a
dismissal, acquittal, or discharge would be presented to the appropriate court
and the prosecutor. The prosecutor would then be responsible for promptly
distributing copies of the expungement order to appropriate agencies with
custody and control of the records specified in the order so that they may be
properly expunged.
           Regarding a person who is, or was prior to the effective date of the law,
successfully discharged from the State's special probation drug court
program, the law would permit the Superior Court that had sentenced the
person to the program to expunge all records and information relating to
prior arrests, detentions, convictions, and proceedings for any offense
enumerated in the Criminal Code, Title 2C of the New Jersey Statutes,
existing at the time of discharge from the program. However, the person
would not be eligible for such an expungement action if the person's records
include a conviction for any offense barred from expungement pursuant to
N.J.S.2C:52-2.
         For a person who is successfully discharged on or after the effective date
of the law, the person would only be eligible to have all prior matters
expunged if the person was not convicted of any crime, disorderly persons
offense, or petty disorderly persons offense during the term of special
probation. For a person who was successfully discharged prior to the
effective date of the law, the person would only be eligible to have all
matters expunged that existed at the time of discharge from the program if
the person has not been convicted of any crime or offense since the person's
date of discharge.
           The Superior Court would grant the person successfully discharged from
the special probation drug court program the relief of expungement, unless it
finds that the need for the availability of the records and information
outweighs the desirability of having the person freed from any disabilities
associated with their availability. The person would not be charged any fee
for such an expungement action.
           Lastly, regarding the continued availability of any expunged records and
information, the law updates the statutory list of parties within the criminal
justice system that may still view such records and information. Along with
courts, county prosecutors, the Probation Division of the Superior Court, and
the Attorney General, the Pretrial Services Program making pretrial release
recommendations on certain persons undergoing the release determination
process set forth in sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et
seq.) would also be able to examine expunged records and information.
         As amended and reported, this law is identical to Assembly Law Nos.
206, 471, 1663, 2879, 3060, and 3108 (ACS/2R), as also amended and
reported by the committee. SENATE, No. 2663
More info on hiring an attorney for an expungement
at http://www.njlaws.com/expungement.html

2. 2016 update Wills and Estate Planning Seminar materials
 By Kenneth Vercammen


1. Federal Estate Tax exemption increased to $5,450,000 in 2016 so no
Federal Estate Tax. However, New Jersey taxes estates over $675,000
2. Gifts permitted without Federal Estate & Gift tax remains at $14,000 per
person.
3. We recommend Self- Proving Wills since witnesses to Will often move or
pass away
4. Non-formal writings could be Wills under the Probate Law
5. Undue influence: Recent cases can void Will signed under suspicious
circumstances
6. NJ Inheritance tax
7. Power of Attorney
8. Federal Health Privacy Law (HIPAA)
9. Competency required to sign a Will or Power of Attorney
 10 Organ donor facts

          1. Federal Estate Tax exemption increased to $5,430,000 in 2015 so no
Federal Estate Tax. However, New Jersey taxes estates over $675,000.
          New Jersey has an Estate Tax on amounts over $675,000. So, even if
no Federal Estate Tax due, the estate must still file a Federal Estate Tax
Return, plus NJ Estate Tax Return.
So, for an unmarried or widowed person with assets of $1,000,000, there is
No Federal Estate Taxes, but the Estimated State Estate Tax: $33,200.00
For an unmarried or widowed person with assets of $1,500,000, estimated NJ
Estate Tax is over $60,000.
The Federal Tax rate on estates over $5,340,000 was increased from 35% to
40%.
        How to avoid NJ Estate Tax- hire an attorney to set up a personal
residence trust or irrevocable trust and have the assets taken out of your
name and put into a trust or given to children and grandchildren in the trust.
Minimum fees for trust are $3,000. This is probably not something a nonattorney
can do on their own. It is illegal for a non-attorney to provide legal
advice or prepare most legal documents.

2. Gifts permitted without Federal Estate & Gift tax remained at $14,000 per
person. However, the amount permitted for Medicaid transfers is zero.

3. We recommend Self- Proving Wills since witnesses often move or pass
away
         An old New Jersey Probate law required one of the two witnesses to a
Will to travel and appear in the Surrogate's office and sign an affidavit to
certify they were a witness. This often created problems when the witness
was deceased, moved away, or simply could not be located. Some witnesses
would require a $500 fee to simply sign a surrogate paper. My
Grandmother's Will was not self- proving, and the witness to Will extorted a
$500 fee.
        The New Jersey Legislature later passed a law to create a type of Will
called a "Self-Proving Will." In such a Will, the person for whom the Will is
made must sign. Then two witnesses sign. Then the attorney or notary must
sign; with certain statutory language to indicate the Will is self-proving.
Beware of online documents not prepared by an attorney
        When done properly, the executor does not have to locate any
witnesses. This usually saves time and money. If your Will is not "selfproving"
or if you are unsure, schedule an appointment with an elder law
attorney. Some law offices ignore the revised law, and fail to prepare self
proving Wills. Do not use a law office that follows old methods and does not
do a self-proving Will.

4. NJ SENATE Law No. 708 made a number of substantial changes to the NJ
Probate Law.
       Non-formal writings could be Wills under the Revised provisions governing
the administration of estates and trusts in New Jersey. So make sure you
have a Formal Will drafted by an estate attorney.
        The law expanded situations where writings that are intended as Wills
would be allowed, but requires that the burden of proof on the proponent
would be by clear and convincing evidence. Possibly a Christmas card with
handwritten notes could be presented as a Will or Codicil.
        To present a non-formal Will or writing requires an expensive Complaint
and Order to Show Cause to be filed in the Superior Court, and a hearing in
front of a Superior Court Judge.
        Be careful; have a Will done properly by an experienced attorney.
        Beware of the "Elective share" rights of a new spouse. Have a Prenuptial
Agreement if entering into a 2nd marriage
       The elective share provisions of the present Code has still not been
changed yet. Currently, the new spouse who is not given money in a Will
can challenge the terms of the Will. This is called "electing against the Will
by a spouse". A spouse could receive up to 1/3 of the estate, even if only
married for 2 weeks. The spouse must file a Caveat or lawsuit in Superior
Court. We suggest a formal prenuptial agreement in 2nd marriage situations.
 A Testator now means both male and female individuals, removing
the term "Testatrix". Will forms that say executrix should not be used.
         The law provides a statute of limitations with respect to creditor claims
against a decedent's estate. There is no longer a need to publish a Notice
Limiting Creditors.

5. NJ Courts affirmed a Will could be voided if signed under suspicious
circumstances
        When there is a confidential relationship coupled with suspicious
circumstances, undue influence is presumed and the burden of proof shifts to
the Will proponent to overcome the presumption.
 If there is undue influence in making of Will and transfer by Deed of a
house by persons in Confidential relationship, this could subject those
persons to punitive damages in some instances, plus voiding of the Will.
 A grievance based upon undue influence may be sustained by showing
that the beneficiary had a confidential relationship with the party who
established the account. See Estate of DeFrank, 433 N.J. Super. 258, (App.
Div. 2013) Accordingly, if the challenger can prove by a preponderance of
the evidence that the survivor had a confidential relationship with the donor
who established the account, there is a presumption of undue influence,
which the surviving donee must rebut by clear and convincing evidence.
        Although perhaps difficult to define, the concept "encompasses all
relationships 'whether legal, natural or conventional in their origin, in which
confidence is naturally inspired, or, in fact, reasonably exists.'" Pascale v.
Pascale, 113 N.J. 20, 34 (1988) (internal citation omitted). "And while family
ties alone may not qualify, parent-child relationships have been found to be
among the most typical of confidential relationships." DeFrank, supra, slip
op. at 13 (citing Ostlund, supra, 391N.J. Super. at 401).
        In the context of inter vivos gifts, "a presumption of undue influence
arises when the contestant proves that the donee dominated the will of the
donor or when a confidential relationship exists between the donor and
done." Pascale, supra, 113 N.J. at 30 (internal citations omitted). "Where
parties enjoy a relationship in which confidence is naturally inspired or
reasonably exists, the person who has gained an advantage due to that
confidence has the burden of proving that no undue influence was used to
gain that advantage," In re Estate of Penna,322 N.J. Super. 417, 423 (App.
Div. 1999), and "the donee has the burden of showing by clear and
convincing evidence not only that 'no deception was practiced therein, no
undue influence used, and that all was fair, open and voluntary, but that it
was well understood.'" In re Estate of Mosery, 349 N.J. Super. 515, 522-23
(App. Div. 2002) (citing In re Dodge, 50 N.J. 192, 227 (1967)).
The person receiving gifts and greater benefit had a burden to show no
deception was practiced and that all of the transactions were fair, open and
voluntary, and that they were well understood.
          Wills should be prepared without undue influence. No one other than the
person who is signing the Will should be in the room. We request the person
who wants the Will to fill out the interview form themselves.

6. NJ Inheritance tax
           The NJ Inheritance Tax Return instructions and NJ Estate Tax Forms
were revised. Don't use old forms. Even if no inheritance tax due, a Tax
Waiver on a house must still be obtained and filed if the house was not coowned
by the spouse.

7. Power of Attorney- Do not use a form purchased online.
          A Power of Attorney should contain reference to the NJ statute requiring
banks to honor the Power of Attorney. Section 2 of P.L. 1991, c. 95 (c.
46:2B-11).

8. Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared
          A federal regulation known as the Health Insurance Portability and
Accountability Act (HIPAA) was adopted regarding disclosure of
individually identifiable health information. This necessitated the addition of
a special release and consent authority to all healthcare providers before
medical information will be released to agents and interested persons of the
patients.
           The effects of HIPAA are far reaching, and can render previously
executed estate planning documents useless, without properly executed
amendments, specifically addressing these issues.
           Any previously executed Powers of Attorney, Living Wills, Revocable
Living Trusts, and certainly all Medical Directives now require HIPAA
amendments. After you sign the Living Will in your attorney's office,
provide a copy to your doctor and family.
          Powers of attorneys and Living Wills should be updated to reference
this new law. More information on the HIPAA law
at http://www.njlaws.com/hipaa.htm

9. Competency required to sign a Will or Power of Attorney
          Attorneys cannot prepare a Power of Attorney, Will or any other legal
document unless a person is mentally competent. If someone is unable to
come into our office, we require the client or client's family to have the
treating Doctor sign the "Doctor Certification of Patient Capacity to Sign
Legal Documents" It is the client or client's family's responsibility to contact
the doctor, obtain the signed Certification at the clients' expense, and then
provide the law office with the original signed Certification. A Law Office
cannot accept phone calls stating someone is competent. Therefore, it is wise
do have your documents drafted while you can drive and are healthy.

10. Organ Donor Facts
         Our Living Wills have been revised to include an Organ donor
selection. Please also sign an organ donor card and register to be an organ
donor, even eyes, with https://www.njsharingnetwork.org. Ken V signed an
organ donor card and also is a volunteer in a medical study using donated
knee cartilage to fix knee damage from 40 years of competitive running and
triathlon, Tae Kwon Do and other sports.

         Who can be a donor? People of all ages and medical histories should
consider themselves potential donors. Your medical condition at the time of
death will determine what organs and tissue can be donated.
          Does my religion support organ and tissue donation? Every major
religion in the United States supports organ and tissue donation as one of the
highest expressions of compassion and generosity.
         Is there a cost to be an organ, eye and tissue donor? There is no cost
to the donor's family or estate for donation. The donor family pays only for
medical expenses before death and costs associated with funeral
arrangements.
         Does my social and/or financial status play any part in whether or
not I will receive an organ if I ever need one? No. When you are on the
transplant waiting list for a donor organ, what really counts is the severity of
your illness, body size, tissue type, blood type and other important medical
information.
         Why should I register to be an organ and tissue donor? Organ andtissue transplants offer patients a new chance at healthy, productive, and
normal lives and return them to their families, friends and communities. To
learn more or to register to become an organ and tissue donor,
visit www.NJSharingNetwork.org. Also contact your attorney to have a
Living Will/ Advance Directive prepared.

http://www.njlaws.com/EstatePlanning.htm

NJ Estate                    NJ Estate Tax Due
$700,000                    $9,250
750,000                      20,399
800,000                      22,799
850,000                      25,199
900,000                      27,600
950,000                      30,400
1,000,000                   33,200
1,050,000                   36,000
1,100,000                   38,800
1,150,000                   42,000
1,200,000                   45,200
1,250,000                   48,400
1,300,000                   51,600
1,350,000                   54,800
1,400,000                   58,000
1,450,000                   61,200
1,500,000                   64,400
1,550,000                   67,600
1,600,000                   70,800
1,650,000                   74,400
1,700,000                   78,000
1,750,000                   81,600
1,800,000                   85,200
1,850,000                   88,800
1,900,000                   92,400
1,950,000                   96,000
2,000,000                   99,600

 The Federal Estate Tax applicable exclusion amount is
$1,500,000 (2004-2005),
$2,000,000 (2006-2008),
$3,500,000 (2009),
$5,000,000 (2010-2011),
$5,250,000 (2013), $5,340,000 (2014),
$5,430,000 (2015),
and $5,450,000 (2016)

Beginning January 1, 2011, estates of decedents survived by a spouse may
elect to pass any of the decedent's unused exclusion to the surviving spouse.
       This election is made on a timely filed estate tax return for the decedent with
a surviving spouse. Note that simplified valuation provisions apply for those
estates without a filing requirement absent the portability election. See the
Instructions to Form 706 for additional information.
Exclusions
* The annual exclusion for gifts is
* $11,000 (2004-2005),
* $12,000 (2006-2008),
* $13,000 ( 2009-2012)
* and $14,000 (2013-2016).
The applicable exclusion amount for gifts is
$1,000,000 (2010),
$5,000,000 (2011),
$5,120,000 (2012),
$5,250,000 (2013),
$5,340,000 (2014),
$5,430,000 (2015),
and $5,450,000 (2016).


 More information on Wills and Probate at
http://njwillsprobatelaw.com and
www.CentralJerseyElderLaw.com

Remember to order your Super Bowl sandwiches from Craig's Deli, II, 2045
Woodbridge Avenue, Edison, NJ. Phone: 732-287-9299

If you are happy with our services, please be sure to:
Like us and post your testimonial on Facebook:
 https://www.facebook.com/Kenneth-Vercammen-Associates-PCLaw-Office-Edison-NJ-08817-149816077985/

Endorse us on LinkedIn:
https://www.linkedin.com/in/kennethvercammen

Editorial Assistance Provided by Juhi Duggirala. Ms. Duggirala is
participating in Ken Vercammen's Fall Internship Program and
currently attends Kean University.

Editor's Note and Disclaimer:
All materials Copyright 2015. 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

Monday, January 11, 2016

E485: 1. 2016 update Wills and Estate Planning- Free Seminar, January 13, 2016; Wednesday 12:15PM-1PM and again 5:15PM-6PM at the Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817. 2. Major Change in law permits car search if police have probable cause to believe that the vehicle contains contraband or evidence of crime. Warrantless auto search permitted on probable cause in lengthy opinion.


NJ LAWS EMAIL NEWSLETTER E485
Kenneth Vercammen, Attorney at Law

January 8, 2016

In this Issue:
1. 2016 update Wills and Estate Planning- Free Seminar, January 13, 2016; Wednesday 12:15PM-1PM and again 5:15PM-6PM at the Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817.

2. Major Change in law permits car search if police have probable cause to believe that the vehicle contains contraband or evidence of crime. State v. Witt __ NJ __ (2015) Warrantless auto search permitted on probable cause in lengthy opinion.    

E485
 
1. 2016 update Wills and Estate Planning- Free Seminar, January 13, 2016; Wednesday 12:15PM-1PM and again 5:15PM-6PM at the Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817.
 
COST: Free if you pre-register by email. Complimentary materials will be provided at 12:00PM Sharp.  We previously held this seminar for the Metuchen and Edison Adult Schools.  The program is limited to 15 people.  Please bring a canned food donation, which will be given to a community food bank.  For attorneys, a more detailed program will be held April 18th from 5:00PM to 9PM at the NJ Law Center. Please email us if you plan on attending or if you would like us to email the materials.
 
SPEAKER: Kenneth Vercammen, Esq.
              (Author-Answers to Questions About Probate)
     The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.
 
2. Major Change in law permits car search if police have probable cause to believe that the vehicle contains contraband or evidence of crime. State v. Witt __ NJ __ (2015) Warrantless auto search permitted on probable cause.
 
       The NJ Supreme Court Held: exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in practice. Citing Article I, Paragraph 7 of New Jersey's State Constitution, the Court returns to the standard articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause: The automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.
 
In this appeal, the Court addresses the constitutional standard governing an automobile search and considers whether to continue to follow the standard set forth in State v. Pena-Flores, 198 N.J. 6 (2009). 
 
Defendant William L. Witt was charged in an indictment with second-degree unlawful possession of a firearm and second-degree possession of a weapon by a convicted person. The police initiated a stop of defendant's car because he did not dim his high beams when necessary, and a search of his vehicle uncovered the handgun. 
 
Defendant moved to suppress the gun on the ground that the police conducted an unreasonable search in violation of the New Jersey Constitution. Defendant's sole argument was that the police did not have exigent circumstances to justify a warrantless search of his car under Pena-Flores. At the suppression hearing, Officer Racite testified that at approximately 2:00 a.m., while providing backup for a motor-vehicle stop, he observed a car pass with its high beams on. 
 
The officer explained that a car must dim its high beams "as vehicles approach." Thus, Officer Racite stopped the vehicle, and requested backup. Defendant, the driver, appeared intoxicated and was asked to exit his car. Defendant then failed field-sobriety and balance tests, and Officer Racite arrested him for driving while intoxicated. Defendant was handcuffed and placed in the back of a patrol car. While Officer Racite searched defendant's vehicle for "intoxicants," he found a handgun in the center console. With Pena-Flores as its guide, the trial court found as follows: the officer had a right to stop defendant's car based on an "unexpected" occurrence and had probable cause to search for an open container of alcohol, but did not have "sufficient exigent circumstances" to conduct a warrantless search. Accordingly, the court suppressed the handgun. 
 
       The Appellate Division granted the State's motion for leave to appeal and affirmed the suppression of the gun "because of the utter absence of any exigency to support the warrantless vehicle search that occurred," and "because there was no justification for this motor vehicle stop." 435 N.J. Super. 608, 610-11 (App. Div. 2014). The panel declined to address the State's argument that the exigent-circumstances test in Pena-Flores "should be replaced because it has proved to be unworkable and has led to unintended negative consequences," explaining that, as an intermediate appellate court, it had no authority to replace Pena-Flores with some other legal principles.

        The panel also agreed with defendant's argument, raised for the first time on appeal, that Officer Racite did not have a reasonable and articulable suspicion to stop defendant because the relevant statute (N.J.S.A. 39:3-60) requires drivers to dim their high beams only when approaching an oncoming vehicle within 500 feet.
 
          Resolution of the issue before the Court implicates the doctrine of stare decisis. Because stare decisis promotes consistency, stability, and predictability in the development of legal principles and respect for judicial decisions, a "special justification" is required to depart from precedent. That said, stare decisis is not an inflexible principle depriving courts of the ability to correct their errors. Among the relevant considerations in determining whether to depart from precedent are whether the prior decision is unsound in principle and unworkable in practice. The Court, therefore, turns to consider whether Pena-Flores is furthering the constitutional values that are protected by the New Jersey Constitution and whether there is "special justification" for departing from it.  
 
      The use of telephonic search warrants has not resolved the difficult problems arising from roadside searches, as the Court expected when it decided Pena-Flores. Prolonged encounters on the shoulder of a crowded highway may pose an unacceptable risk of serious bodily injury and death to both police officers and citizens. Moreover, the seizure of the car and the motorist's detention may be a greater intrusion on a person's liberty interest than the search is on a person's privacy interest. Finally, the dramatic increase in the number of consent searches since Pena-Flores is apparently an unintended consequence of that decision, reflecting the difficulty presented to police officers by the Pena-Flores multi-factor exigent-circumstances standard. The Court is concerned about consent searches in such great numbers, particularly in light of the historic abuse of such searches and the coercive effect of a search request made to a motorist stopped on the side of a road. The Court, therefore, concludes that the current approach to roadside searches premised on probable cause places significant burdens on law enforcement without any real benefit to the public. 
 
        Although the Court determines that the exigent-circumstances standard set forth in Cooke and Pena-Flores is unsound in principle and unworkable in practice, it does not adopt the federal standard for automobile searches because it is not fully consonant with the interests embodied in Article I, Paragraph 7 of the State Constitution. The Court returns to the Alston standard, which states that the automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous. The Court's decision limits the automobile exception to on-scene warrantless searches, unlike federal jurisprudence, which allows a police officer to conduct a warrantless search at headquarters merely because the officer could have done so on the side of the road. 
 
     The Court's decision is a new rule of law to be applied prospectively. Therefore, for purposes of this appeal, Pena-Flores is the governing law. However, going forward, the exigent-circumstances test in Cooke and Pena-Flores no longer applies, and the standard set forth in Alston for warrantless searches of automobiles based on probable cause governs. 

      The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion. 
 
      Editorial Assistance provided by Dhruv Patel.  Mr. Patel currently attends Rutgers University and is participating in Kenneth Vercammen's Winter Break Internship Program.
If you are happy with our services, please be sure to: 

Like us and post your testimonial on Facebook:
 https://www.facebook.com/Kenneth-Vercammen-Associates-PC-Law-Office-Edison-NJ-08817-149816077985/

Endorse us on LinkedIn:
https://www.linkedin.com/in/kennethvercammen

Editorial Assistance Provided by Juhi Duggirala. Ms. Duggirala is participating in Ken Vercammen's Fall Internship Program and currently attends Kean University. 
 
Editor's Note and Disclaimer:
All materials Copyright 2016. 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

Thursday, January 07, 2016

E484: 1. New Year's Resolution - Put your Estate Planning in order. 2. Next Event: 2016 update Wills and Estate Planning- Free Seminar. 3. Recent Cases: Can't expunge multiple crimes. In the Matter of the Expungement Petition of J.S. 4. No good faith exception to improper arrest. State v. Shannon.



In this Issue:

1.   New Year's Resolution - Put your Estate Planning in order.
2.   Next Event: 2016 update Wills and Estate Planning- Free Seminar     
3.  Recent Cases: Can't expunge multiple crimes. In the Matter of the Expungement Petition of J.S.   
4.  No good faith exception to improper arrest. State v. Shannon

1.   New Year's Resolution - Put your Estate Planning in order.

   You need a Power of Attorney and Living Will/ Advance Directive. Modern medicine and machinery can keep a person alive for long periods of time.

   Unfortunately, a person is often kept alive in great pain or under circumstances that render him or her unconscious as to everything around them, while causing pain and anguish to the family.
Our state has passed a "Living Will" law, often called a "Death with Dignity" law, which allows a person to direct that heroic measures not be taken to prolong life in these unhappy situations.

    This "Living Will" is not a substitute for a regular Will, which affects property rights. The "Living Will" is an independent document to be signed in addition to your regular Will.

    Please let us know if you want a Living Will/ Advance Directive prepared.
I would like to thank my friends for another good year in 2015, despite the bad economy. This year was our single best year for referrals. So many of you were kind enough to tell others about our services.

    Since 1985 [ 30 years], I have helped individuals and businesses with legal matters. With changing laws, it is important that your estate planning documents are updated to reflect your most valuable investments. As you know, all business must grow, and one of the safest ways to grow is to get referrals from satisfied clients.

 Thank you for referring friends and family.

May the New Year 2016 bring happiness and good health to you and those you love.

2. Next Event

2016 update Wills and Estate Planning- Free Seminar                     
January 13, 2016  Wednesday 12:15-1:00 PM and again
  5:15pm-6pm
 at Law Office of Kenneth Vercammen, 
 2053 Woodbridge Ave, Edison, NJ 08817

3. Recent Cases: Can't expunge multiple crimes. In the Matter of the Expungement Petition of J.S. 223 NJ 54 (2015)   
      The plain language of N.J.S.A. 2C:52-2(a) precludes expungement of convictions when the petitioner has been convicted of multiple crimes, even when those crimes occurred within a short span of time. If you have a prior criminal charge, contact a Certified Attorney by the Supreme Court to determine if your are eligible to expunge past criminal charges or guilty pleas.

4. No good faith exception to improper arrest. State v. Shannon 222 NJ 576 (2015)  
     The judgment of the Appellate Division is affirmed by an equally divided Court. The arresting officer's good faith belief that a valid warrant for defendant's arrest was outstanding cannot render an arrest made in the absence of a valid warrant or probable cause constitutionally compliant. 


Polar Bear Runners Take Swim in Ocean every year after the Polar Bear 5k in Asbury Park
      On of my favorite past photos: Bob Tona, Ken Vercammen and Lauren Rhatigan swimming in snow storm in the Ocean 12/26/2010 Asbury Park

  Editorial Assistance provided by Michelle Kraidman.  Ms.Kraidman currently attends Binghamton University and is participating in Kenneth Vercammen's Winter Law Internship Program.  
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