2053 Woodbridge Avenue - Edison, NJ 08817

Tuesday, April 17, 2018

E537March 20, 2018 Index 1. Even if the request to search were not lawful, defendant's flight attenuated the seizure from the alleged improper police conduct. 2. Strip search after marijuana arrest not permitted. 3. Community Events


NJ LAWS EMAIL NEWSLETTER E537
Kenneth Vercammen, Attorney at Law 
March 20, 2018
Index 
1. Even if the request to search were not lawful, defendant's flight attenuated the seizure from the alleged improper police conduct.  
2.  Strip search after marijuana arrest not permitted.  
3.  Community Events

Recent Cases: Even if the request to search were not lawful, defendant's flight attenuated the seizure from the alleged improper police conduct. State v. Lopez N.J. Super. App. Div. unreported
   Defendant appealed the denial of his motion to suppress evidence and his sentences. Police made a motor vehicle stop of defendant's vehicle, observed that defendant was nervous, saw a large amount of cash in the center console, suspected drug activity and requested consent to search the car. Defendant initially agreed, then drove away throwing a black object out of the car. Defendant eventually stopped and was arrested. The police found a plastic bag-containing heroin near where defendant threw the object from the car. At the hearing on the motion to suppress, the trial judge found the stop was lawful because of the inoperable brake light and defendant's change of lanes without signaling. The court found that sufficient credible evidence supported the stop and the request to search.
    Even if the request to search were not lawful, defendant's flight attenuated the seizure from the alleged improper police conduct. Source NJLJ (14-2-3291) unreported.

2.   Strip search after marijuana arrest not permitted.  State v. Jules, N.J. Super. App. Div. unreported.
  Appellant appealed from his conviction for third-degree possession of alprazolam (Xanax). Appellant's appeal focused solely on the denial of his motion to suppress evidence obtained from a strip search, which police conducted at their headquarters after his arrest. In denying appellant's motion, the judge found the officer had reasonable articulable suspicion justifying the initial stop, probable cause for the arrest and that the strip search was lawful under the search incident to arrest exception to the warrant requirement.             Appellant did not dispute the initial stop or the arrest; appellant argued that the police acted unlawfully by subjecting him to a strip search without first obtaining a warrant. 
  On appeal, the court-reversed denial holding the officer's suspicion that the item in appellant's groin area was a prescription pill bottle did not establish probable cause that appellant committed the named offense. The court found there was no "objectively reasonable" basis to arrest appellant for possession of prescription pills, only that there was probable cause to arrest him for marijuana possession.     Therefore, the police could not use the search incident to arrest exception to circumvent the protections that arose from appellant's arrest. Furthermore, exigency could not support the search once the police handcuffed and secured appellant. Finally, the court found the "plain feel" exception inapplicable because the object believed to be a prescription pill bottle did not make it "immediately apparent" that the bottle contained contraband. Accordingly, the court reversed denial of suppression and remanded for dismissal of the judgment of conviction. Source NJLJ Daily briefing

3.  Community Event

Edison Elks presents - An Evening of Southern Rock & Blues
April 14 at 6 PM - 10 PM        Saturday,
Edison Elks #2487 - Edison, NJ 375 Old Post Road, Edison, New Jersey 08817 Come enjoy Southern Rock & Blues music while eating some good ol' Southern BBQ. All proceeds help fund the Elks Wildwood Convention and Parade. $25.00 Short ribs and chicken Open to the public

April 16, 2018 Please share with your patrons
Metuchen Library
Wills, Estate Planning & Probate Seminar
at 7:00pm Free community program
480 Middlesex Ave. Metuchen, NJ 08840
Open to the public. You do not need to be a resident to attend
WILLS & ESTATE ADMINISTRATION-PROTECT YOUR
FAMILY AND MAKE PLANNING EASY

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ (Author- Wills and Estate Administration by the ABA)
       The January 1, 2018 New Estate Tax law changes administration of estates and trusts in New Jersey.
Main Topics:
1. NJ Estate Tax eliminated on Estates under $5,500,000 as of January 1, 2018 & Veterans Tax credit
2. 2018 changes in Federal Estate and Gift Tax
3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent
4. Power of Attorneys                                                                        
5. Living Will                                                                                       
6. Administering the Estate/ Probate/Surrogate

Upcoming Running Races & Charity events selected by Kenneth Vercammen

March 24, 2018  Jersey Shore Kilt Run/Walk (Lake Como) 11AM
Great event by JerseyRunner.com & Gio Dr. T-shirtjerseyrunner.com Wakefern Shoprite co-sponsor
April 15th at 8:00am - Lincoln Tunnel 5k in Weehawken Sunday Wakefern If you are attending any of these charity races, please call or email Ken V. at Kenv@njaws.com Often we car pool from East Brunswick /Edison or meet at these events. I update this list athttp://vercammensport.blogspot.com/
    Great event by JerseyRunner.com & Gio Dr. T-shirtjerseyrunner.com Wakefern Shoprite co-sponsor

April 7, 2018 Indian Trails now 20k & 10k 9am Middletown [Ken V is past 5k winner] Croydon Hall School raceforum.com

April 15, 2018 at 8:00am - 
Lincoln Tunnel 5k in Weehawken Sunday Wakefern Shoprite is co-sponsor https://www.sonj.org/events/lincoln-tunnel-challenge-5k/

April 21, 2018 Runapoloza Jersey Shore relay & The Asbury Park Half Marathon   Wakefern Shoprite Corporate Team Past Champion www.jsrc.org.

April 28, 2018   JSRC Lake Como 5k Romp 10am
Benefit BPOE Elks Camp Moore for Children with Special Needs & Lake Como Giving Tree      

April 29, 2018     29th Annual Tour de Franklin,Franklin Food Bank 62 mile & 40-mile bike 62 Mile Metric Century or 40 Mile   now Starts at Franklin High School.          http://www.franklinfoodbank.org/events 

April 29, 2018 Captain Ronald Zinn Memorial Races 10k Racewalk 9am, 5krun 11am Wall Municipal Building

May 5, 2018 Farmlands bike This family-friendly event has marked routes in a variety of distances, from a leisurely 15,25,35 mile jaunt to the ambitious 50 mile, metric (62.5 miles) and century (100 miles)
Central Jersey Bike Club Middletown http://www.cjbc.org 

May 6, 2018 Highland Park 5k Run in the Park   9am Sunday RVRR is volunteer group.

Like Us On: Facebook

Endorse Us On: Linkedin  
Editor's Note and Disclaimer:
All materials Copyright 2018. 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


E536 ndex 1. Recent cases: GPS tracking device by police not barred. 2. NJ had jurisdiction for criminal spam attack on NJ business 3. OPRA can also require electronically stored data. 4. Non-running Community events 5. Fun Upcoming Charity Running Races


NJ LAWS EMAIL NEWSLETTER E536
Kenneth Vercammen, Attorney at Law 
March 6, 2018
Index 
1. Recent cases:  GPS tracking device by police not barred.  
2. NJ had jurisdiction for criminal spam attack on NJ business 
3. OPRA can also require electronically stored data. 
4. Non-running Community events 
5. Fun Upcoming Charity Running Races 

1. GPS tracking device by police not barred State v McDuffie 450 NJ Super. 554 (App. Div. 2017).
   The court examined defendants' attack on the State's exercised privilege, refraining from disclosing information regarding details related to a global positioning system (GPS) tracking device used to prove their involvement in two burglaries. The court rejected defendants' constitutional attacks and upheld the privilege granted by N.J.R.E. 516 and N.J.S.A. 2A:84A-28, defining the guidelines reviewed when weighing disclosure in light of the asserted privilege.
These include: (1) whether defendant demonstrates a particularized need for disclosure related to advance a stated defense; (2) whether the opportunity to cross-examine the officer, asserting non-disclosure based on privilege, satisfies a defendant's need to challenge the credibility of the testifying witness; (3) whether law enforcement provided required corroborating evidence extrinsic to the GPS, to protect a defendant's rights of confrontation and fair trial; and (4) whether a defendant has the opportunity to provide expert testimony to attack the evidence without disclosure of the requested information. Docket A-3634-14T3

2. NJ had jurisdiction for criminal spam attack on NJ business. State v Tringali 451 NJ Super. 18 (App. Div. 2017).
    The State alleged that, acting in Florida, defendant paid an accomplice to launch spam attacks on a website that was integral to a New Jersey internet-based business, for the purpose of harming the business owner.
   The Appellate Division reversed an order dismissing the indictment charging defendant with the offenses of disrupting or impairing computer services, N.J.S.A. 2C:20-25(b), and impersonating another for the purpose of obtaining a benefit or depriving another of a benefit, N.J.S.A. 2C:21-17(a)(1). As to both offenses, the harmful result to the victim is an "element" of the offense, within the meaning of the territorial jurisdiction statute, N.J.S.A. 2C:1-3(a)(1) and -3(g).
     Because the prosecutor produced some evidence that the New Jersey victims suffered harm in this State, which was an element of each computer crime statute, New Jersey has territorial jurisdiction to prosecute defendant for those offenses. Therefore, the trial court erred in dismissing those counts of the indictment for lack of territorial jurisdiction. A-1262-15T1

3. OPRA can also require electronically stored data. Paff v. Galloway Township 229 NJ 340 (2017).
   The Appellate Division's overly constrictive reading of OPRA cannot be squared with the OPRA's objectives or statutory language. OPRA recognizes that government records will constitute not only paper documents, but also information electronically stored.
   The fields of information covering "sender," "recipient," "date," and "subject" in the emails sent by the Galloway Township Chief of Police and Clerk over a two-week period are government records under OPRA.

March 16, 2018 Highland Park Office of Aging at 11am Wills & Estates Free program

March 18, 2018 South Amboy Parade Sunday at 1 PM.

March 18, 2018 Elks Citizen of the Year Awards Dinner Central District held at Carteret Elks Ken V is current Edison Citizen of the Year

March 22 2018, Middlesex County Bar Awards Dinner at The Pines Manor in Edison. [Ken V is a past winner of Municipal Court Attorney of the Year]

March 24, 2018 Highlands Saint Patrick's Day Parade   2pm park near Central, go to Claddagh, then Inlet Cafe

March 25, 2018 Keyport, NJ St. Patrick's Day Parade
Saturday, Kick-off will be at 1:00 PM


March 18, 2018 St. Paddy's 5 mile   9:30 Freehold  great FARC event Dress warm. FARC is a 501(c) 3 not for profit organization. which typically donate over $25,000 each year to local charities.

March 24, 2018  Jersey Shore Kilt Run / Walk (Lake Como) 11 am
 Great event by JerseyRunner.com & Gio Dr. T-shirtjerseyrunner.com Wakefern Shoprite co-sponsor

Editorial Assistance provided by Meriam Kahany. Ms. Kahany is currently attending Rutgers University and is participating in Kenneth Vercammen's Spring Law Office Volunteer Internship Program.

Like Us On: Facebook

Endorse Us On: Linkedin  
Editor's Note and Disclaimer:
All materials Copyright 2018. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.

E535February 15, 2018 Index 1. Recent cases: Dash cam video in fatal shooting public record. 2. Canine dog sniff search cannot be long delay. 3. Defendant had a constitutional right to possess the machete in his home. 4. Non-running Community events & St. Patrick parades. 5. Fun Upcoming Charity Running Races.


NJ LAWS EMAIL NEWSLETTER E535
Kenneth Vercammen, Attorney at Law 
February 15, 2018
Index 
1. Recent cases: Dash cam video in fatal shooting public record.
2. Canine dog sniff search cannot be long delay.
3. Defendant had a constitutional right to possess the machete in his home.
4. Non-running Community events & St. Patrick parades.
5. Fun Upcoming Charity Running Races.

1. Dash cam video in fatal shooting public record. North Jersey Media Group, Inc. v. Township of Lyndhurst.  229 NJ 514 (2017)
   NJMG was entitled to disclosure of unredacted Use of Force Reports, under OPRA, and dash-cam recordings of the incident, under the common law. Investigative reports, witness statements, and similarly detailed records were not subject to disclosure at the outset of the investigation, when they were requested.

2. Canine dog sniff search cannot be long delay. State v. Dunbar 229 NJ 521 (2017).
The Court adopts the federal standard barring unnecessary delays for the purpose of canine sniffs. Officers do not need reasonable suspicion of a drug offense provided that the canine sniff does not prolong the stop beyond the time required to complete the stop's mission. (A-94-15; 077839)

3. Defendant had a constitutional right to possess the machete in his home. State v. Montalvo 226 N.J. 212 (2017)
The right to possess a weapon in one's own home for self-defense would be of little effect if one were required to keep the weapon out-of-hand, picking it up only "spontaneously." Defendant had a constitutional right to possess the machete in his home for his own defense and that of his pregnant wife. Because the trial court's instructions did not convey this principle, the instructions were erroneous. Further, because the erroneous instructions were capable of producing an unjust result in this matter, they constitute plain error.

4. Non-running Community events:
March 1, 2018NJAJ LAW OFFICE MARKETING: ONLINE AND OFFLINE Winter Seminar 2018 Thursday, The Palace at Somerset Park, Somerset, NJ

SEMINAR AGENDA
11:00 am - 12:00 pm, Lunch & Registration, Exhibit Hall
12:00 pm - 12:30 pm
Marketing Without the Internet
Kenneth A. Vercammen, Esq., Edison, NJ
12:30 pm - 1:15 pm
Engaging Your Law Firm in Your Community
Andrew J. D'Arcy, Esq., Egg Harbor Township, NJ
Satish V. Poondi, Esq.,  Woodbridge, NJ   1:15 pm - 2:15 pm
Internet Marketing  2:30 pm - 3:30 pm
Ethics of Internet Marketing: What is Appropriate on Your Website
3:30 pm - 4:15 pm
Networking and Building Your Referral Base  4:15 pm - 5:00 pm
Law Office Marketing Panel Discussion  5:00 pm - 6:30 pm
Cocktail Reception Exhibit Hall Registration fees between $200-$350

March 7, 2018 Annual Review of the Major Municipal Court Cases affecting Law Enforcement 2017-2018 at 12 noon,Sponsored by Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFAat South Amboy Ancient Order of Hibernians AOH 271 2nd St, South Amboy, NJ 08879 free for police & law enforcement

March 8, 2018 Catholic Financial Foundations: Protecting your family with insurance and estate planning. at 7pm   St. Thomas the Apostle One St. Thomas Plaza   Old Bridge

March 11, 2018 Asbury Park, NJ St. Patrick Parade@ 1:00 PM   Sunday,

March 14, 2018 Sayreville Public Library
Wills & Power of Attorney Seminar at 6:30pm free

March 15 Piscataway Library Wills & Power of Attorney Seminar at 7pm free

March 16 Highland Park Office of Aging at 11am Wails & Estates Free program

March 18 South Amboy Parade Sunday at 1 PM.

March 18 Elks Citizen of the Year Awards Dinner Central District held at Carteret Elks Ken V is Edison 2017-2018 Citizen of the Year

March __ 2018, MCBA awards Annual Awards Dinner at The Pines Manor in Edison. Middlesex County Bar Awards Dinner [Ken V is a past winner of Municipal Court Attorney of the Year]

March 24 Highlands Saint Patrick's Day Parade   2pm park near Central, go to Claddagh, then Inlet Cafe

March 25 Keyport, NJ St. Patrick's Day Parade
Saturday, Kick-off will be at 1:00 PM

5. Fun Upcoming Charity Running Races
 February 17, 2018 Manasquan Mid-Winter 2 mile Beach Run/Walk 11:00Race starts on Ocean Ave, Boardwalk and you run l 1/4 mile on the Beach, ending at Leggett's restaurant.Post race party at Leggett's, plenty refreshments and food. Wakefern Shoprite co-sponsor jerseyrunner.com

Feb 18, 2018 ORC Winter Series 10am Ocean County Park, Lakewood

Feb 25, 2018 Johnny Mac house of Spirits Train Run Snowball Express approx 10:30 AM when train leaves jsrc.org

March 10 Guinness run Highlands Bahrs Landing Restaurant
2 Bay Ave., Highlands, NJ 07732. Saturday, March 10, 2018 at 2PM. Registration is $30.00 and includes a commemorative t-shirt, a Guinness Pint glass and access to the Post-Race Party at Bahrs Landing Restaurant, with complimentary appetizers and Guinness Beer. The race will begin at Bahrs, 2 Bay Avenue, where contestants will fill their cup and race to Miller St., and back to the finish line at Bahrs. The contestant with the most liquid in their cup at the finish line, wins the 1st Place trophy . There will be a Post-Guinness Run Pub Crawl from 3PM-5PM, included with RUN registration or $10.00 without RUN registration and $3.00 Imported Beer specials at participating restaurants.

March 18, 2018 St. Paddy's 5 mile   9:30 Freehold     great FARC event Dress warm. FARC is a 501(c) 3 not for profit organization. which typically donate over $25,000 each year to local charities. farcnj.com

3/24/18  Jersey Shore Kilt Run/Walk (Lake Como) 11AM

  Great event by JerseyRunner.com & Gio Dr. T-shirtjerseyrunner.com Wakefern Shoprite co-sponsor
Editor's Note and Disclaimer:
All materials Copyright 2018. 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, April 09, 2018

Winter 2017 Municipal Court Law Review rev 1/10/17

Major cases affecting Municipal Court and criminal cases



1. NJ Supreme Court makes “plain view” car searches easier

State v. Gonzales __ NJ __ (2016)

    The Court now excises the inadvertence requirement from the plain-view doctrine. Because it is setting forth a new rule of law, the Court will apply the reformulated plain-view doctrine prospectively. Nevertheless, the Court holds that the trial court’s finding of inadvertence is supported by credible evidence in the record. The Court therefore reverses the judgment of the Appellate Division and reinstates the trial court’s denial of the motion to suppress.  A-5-15



2. Protective search on house not permitted where no evidence another person present. State v. Bryant __ NJ __ (2016)

   The officers here lacked reasonable and articulable suspicion that another party was present, much less that another party posed a danger to officer safety. The protective sweep was thus insufficient to establish an exception to the warrant requirement, and any evidence found as a result of that sweep—even if it was found in plain view—must be excluded and suppressed as fruit of the poisonous tree. A-2-15



3. Driver with prior school zone DWI sentenced as 2nd Offender State v. Wheatley __ NJ Super. __ (App. Div. 2016) 

       Distinguishing State v. Reiner, 180 N.J. 307 (2004), the court held that a defendant who was previously convicted of driving while intoxicated (DWI) in a school zone in violation of N.J.S.A. 39:4-50(g) is subject to the increased penalties applicable to second offenders under N.J.S.A. 39:4-50(a)(2) when he was subsequently convicted of a conventional DWI in violation of N.J.S.A. 39:4-50(a). A-5026-14T1



4. Town outside surveillance camera not subject to OPRA but maybe subject to common law.

Gilleran v. Township of Bloomfield __ NJ __ (2016)

Compelling release on demand of security surveillance video would be contrary to the legislative intent motivating OPRA’s exemptions based on security concerns. The Township’s explanation for denying the request for the footage was adequate. Requests for video from surveillance cameras protecting public facilities are better analyzed under the common law right of access. The Court therefore reverses the judgment of the Appellate Division and remands the matter for further proceedings based on the unresolved common law claim. A-15-15



5 Twitter statement admissible in criminal trials. State v Hannah __ NJ Super. __ (App. Div. 2016)

Defendant was charged with hitting the victim in the face with her shoe. At trial, the State introduced a screenshot taken by the victim of a "tweet" allegedly posted by defendant after the incident saying "shoe to ya face." Defendant argues that this Twitter posting was improperly admitted into evidence, citing a Maryland case requiring that such social media postings must be subjected to a greater level of authentication. The Appellate Division rejects that contention, holding that New Jersey's current standards for authentication are adequate to evaluate social media postings. Under those standards, it was not an abuse of discretion to admit the tweet based on the presence of defendant's photo and Twitter handle, its content containing information specific to the parties involved, and its nature as a reply to the victim's communications. A-5741-14T3


6. No obstruction for failure to provide DL for parking ticket.  State v Powers __ NJ Super. __ (App. Div. 2016)

Defendant was convicted after a trial in municipal court, and again on appeal to the Law Division, of obstruction based on both physical interference and an "independently unlawful act." N.J.S.A. 2C: 29-1(a). The court remanded for findings that might illuminate the judge's conclusory determination that defendant physically interfered with a state trooper in the issuance of a parking ticket at a highway rest stop.

       The court, however, also held that defendant, in these circumstances, could not be convicted of obstruction by means of "an independently unlawful act" that was based solely on N.J.S.A. 39:4-57, which provides that "[drivers of vehicles . . . shall at all times comply with any direction . . . of a member of a police department" when the officer is in the course of "enforcing a provision of this chapter." Defendant was outside his vehicle and, therefore not a driver, and the trooper was not enforcing Chapter 39 because he was only issuing a parking ticket. A-3764-14T2


7. Official misconduct does not apply to EMT State v. Morrison __ NJ __ (2016)

A municipality’s contracting for emergency medical services through a private, non-profit first-aid squad does not convert the EMTs into public servants because they are not exercising authority of a uniquely governmental nature or performing a function exclusive to government in any traditional sense, regardless of whether there are one or more non-profit providers of publicly funded emergency medical services for the municipality. Morrison did not commit the offense of official misconduct because he was not performing a governmental function and therefore was not a public servant. The Court affirms the judgment of the Appellate Division and remands for proceedings on the four remaining counts. A-36



8. Victim Statement to police not admissible at trial State in Interest of A.R. __ NJ Super. __ (App. Div. 2016)

Appellant, a fourteen-year-old juvenile, was found guilty of sexually touching a seven-year old boy on a bus returning from summer camp. The alleged victim was developmentally comparable to a three-year-old. After getting off the bus, he blurted out to his mother's cousin that appellant had touched him during the ride. Eighteen days later, a detective interviewed the younger child on videotape at the county prosecutor's office. The child repeated the accusation, demonstrating it with anatomical dolls. No eyewitnesses on the bus, including the driver and aide, corroborated the incident.

At a pretrial Rule 104 hearing, the court ruled that both of the child's hearsay statements were sufficiently trustworthy to admit under the "tender years" hearsay exception, N.J.R.E. 803(c)(27). The court then queried the younger child at the start of the trial about his ability to discern and tell the truth. The court twice concluded from the child's troublesome responses that he was not competent to testify under the criteria of N.J.R.E. 601. Nevertheless, the court accepted the child's hearsay statements and trial testimony repeating the accusations, based on the so-called "incompetency proviso" in Rule 803(c)(27), which treats children of tender years as available witnesses even if they are not competent to testify.

The court concluded that the younger child's statements during his recorded interview with the detective were "testimonial" under the Confrontation Clause, as construed by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. The objective "primary purpose" of the interview was to elicit and preserve statements from an identified child victim of sexual abuse about wrongful acts for potential use as evidence in a future prosecution. The child's testimonial statements to the detective here are distinguishable from the non-testimonial statements that a young child victim made to her teachers at school in Ohio v. Clark, 135 S. Ct. 173 (2015).

       Although appellant's counsel attempted to cross-examine the child, that exercise was inadequate to safeguard his confrontation rights, given the child's undisputed incompetency. Hence, the court reversed the admission of the detective's interview and the child's in-court testimony because it violated appellant's constitutional rights. However, as appellant concedes, the child's spontaneous assertion after getting off the bus was not testimonial under the Confrontation Clause and was properly admitted. The court remanded for the trial court to reconsider the proofs in light of the determinations. A-2238-14T3


9. Dismissal of DV can’t be used as bargaining chip in divorce case J.S. v. D.S  __ NJ Super. __ (App. Div. 2016)

Defendant appealed a domestic violence final restraining order (FRO), claiming it was void upon entry – despite the parties' settlement of matrimonial issues that included defendant's consent to the FRO – because the judge did not find an act of domestic violence had occurred. A few days before the scheduled date for oral argument in this court, the parties stipulated to a dismissal of the appeal that would allow for the perpetuation of the FRO.

Notwithstanding their agreement, the court exercised its discretion, pursuant to Rule 2:8-2, and determined that the interests of justice required a disposition of the appeal's merits; the court vacated the FRO due to the lack of a finding of domestic violence, reinstated the TRO, and remanded for a final hearing. A-5742-14T2


10. Mandatory Electronic Filing in Criminal cases in eCourts.

The Supreme Court informed that bar that the Court has determined that electronic filing in Criminal matters using eCourts Criminal is mandatory with certain limited exceptions.

    All attorneys and law firms seeking to file documents in criminal matters must do so electronically through eCourts, except in the following limited instances: (1) cases not tracked in PROMIS/Gavel, e.g., expungements, gun permit filings, municipal appeals; (2) filings that are not part of the court's official case file, e.g., prosecutor discovery pursuant to Rule 3:13-3(b)(1); (3) filings where a fee is specifically required, e.g., municipal appeals, expungements; and (4) Megan's Law filings.



11. New Criminal Rules effective Jan 1, 2017

No more mandatory cash bail for indictable criminal charges.

Everyone with a Warrant gets to spend at least one night in jail !!!  Attorneys need to set up an eCourts login and file Superior Court motions online, or refer cases out.

On Jan. 1, 2017, NJ shifted from a system that relies principally on setting monetary bail as a condition of release to a risk-based system that is more objective, and thus fairer to defendants because it is unrelated to their ability to pay monetary bail. The statute also sets deadlines for the timely filing of an indictment and the disposition of criminal charges for incarcerated defendants.

Source: www.judiciary.state.nj.us/criminal/cjr/index.html



Photo: Eric Morrell & Ken Vercammen were speakers at the Annual Middlesex County Bar Association Municipal Court case update. For information on other MCBA events go to http://www.mcbalaw.com



13. Next programs:

March 2, 2017  Review of recent caselaw for Police. Sponsored by  of Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFA 12 noon, followed by monthly meeting of Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFA At South Amboy Ancient Order of Hibernians, 271 2nd St, South Amboy, NJ 08879

March 20, 2017 Municipal Court College seminar

5:30pm-9:00pm

NJ Law Center, New Brunswick

http://tcms.njsba.com/



May 1, 2017 Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and individuals involved in Probate

Nuts and Bolts of Elder Law

5:00 PM- 9:00 PM NJ Law Center

May 16-17 NJSBA Annual Meeting at the Borgata



July  14, 2017 Happy Hour at Bar Anticipation





Photo text Handling Drug, DWI and Serious Cases in Municipal Court 

Kenneth Vercammen, Esq., Past Municipal Court Attorney of the Year
Tara Auciello  Edison Prosecutor
John Menzel, Esq., Past Chair Municipal Court Section
Norma Murgado, Esq., Chief Prosecutor- Elizabeth & Woodbridge
William Brigiani, Esq., Past President Middlesex County Bar
   The 400 page book written by Ken Vercammen and John Menzel is available from NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION

NJICLE, A Division of the NJSBA NJ State Bar Association  732-214-8500



Index

1. NJ Supreme Court makes “plain view” car searches easier

State v. Gonzales

2. Protective search on house not permitted where no evidence another person present. State v. Bryant

3. Driver with prior school zone DWI sentenced as 2nd Offender State v. Wheatley

4. Town outside surveillance camera not subject to OPRA but maybe subject to common law.

Gilleran v. Township of Bloomfield

5 Twitter statement admissible in criminal trials. State v Hannah

6. No obstruction for failure to provide DL for parking ticket.  State v Powers

7. Official misconduct does not apply to EMT State v. Morrison

8. Victim Statement to police not admissible at trial State in Interest of A.R.

9. Dismissal of DV can’t be used as bargaining chip in divorce case J.S. v. D.S 

10. Mandatory Electronic Filing in Criminal cases in eCourts.

11. New Criminal Rules effective Jan 1, 2017

12 Photo: Eric Morrell

13. Next events:

14. Photo text Handling Drug, DWI and Serious Cases in Municipal Court 



Monday, March 12, 2018

COMPOUNDING (N.J.S.A. 2C:29‑4) model jury charge

The defendant is charged with the criminal offense of compounding a crime.
(Read appropriate Count of Indictment)
The pertinent part of the statute on which this indictment is based reads as follows:
(Select appropriate part of statute)
(ACCEPTS)
A person commits a crime if he accepts or agrees to accept any pecuniary benefit in consideration of refraining from reporting to law enforcement authorities the commission or suspected commission of any offense or information relating to an offense or from seeking prosecution of an offense.
or (CONFERS)
A person commits a crime if he confers or agrees to confer any pecuniary benefit in consideration of the other person agreeing to refrain from any such reporting or seeking prosecution.
In order to convict the defendant of the criminal offense of compounding a crime, the State must prove beyond a reasonable doubt each of the following elements:
(ACCEPTS)
1.That the defendant accepted or agreed to accept any pecuniary benefit;
2.That in so accepting or agreeing, the defendant agreed not to report to law enforcement authorities the commission or suspected commission of any offense or information relating to an offense (or) not to seek prosecution of an offense;
3.That the defendant acted purposely (2C:2‑2(c)(3))
(CONFERS)
1.That the defendant conferred or agreed to confer any pecuniary benefit upon another;
2.That in so conferring or agreeing to confer, the defendant agreed that someone else would refrain from reporting to law enforcement authorities the commission or suspected commission of any offense or information relating to an offense (or) from seeking prosecution of an offense;
3.That the defendant acted purposely.
Pecuniary benefit is benefit in the form of money, property, commercial interests or anything else, the primary significance of which is economic gain to defendant or to any other person or entity in whose welfarehe/sheis interested.
(If the defense of restitution or indemnification as set forth in 2C:29‑4 is raised, insert the following:)
The statute also provides that:
It is an affirmative defense to prosecution under this section that the pecuniary benefit did not exceed an amount which the actor reasonably believed to be due as restitution or indemnification for harm caused by the offense.
(ACCEPTS)
The law provides that the defendants acceptance or agreement to accept restitution or indemnification is a defense to the charge of compounding.The law does not seek to penalize the victim of an offense who refrains from reporting that offense because (he/she) accepted or agreed to accept restitution or indemnification from the perpetrator.However, to constitute a defense, the pecuniary benefit whichhe/sheaccepted or agreed to accept must not have exceeded an amount which the defendant reasonably believed to be due tohim/heras restitution or indemnification for harm caused by the offense.
The defendant, as part ofhis/herdenial or guilt, raises the defense that the pecuniary benefithe/sheaccepted or agreed to accept did not exceed an amount whichhe/shereasonably believed to be due tohim/heras restitution or indemnification for harm caused by the offense.This defense is a complete defense to the crime charged.If you conclude that the State has proved the crime of compounding beyond a reasonable doubt and only if you so conclude, then you must consider the defense that the pecuniary benefit accepted by the defendant, or whichhe/sheagreed to accept, did not exceed an amount which the defendant reasonably believed to be due tohim/heras restitution or indemnification for harm caused by the offense.The law places upon the State the burden of disproving the truth of this defense beyond a reasonable doubt.
Therefore, if you conclude that the State has proved the crime of compounding beyond a reasonable doubt, but you have a reasonable doubt as to whether or not the defense of restitution or indemnification is true, then you must find the defendant not guilty of compounding.If you conclude that the State has proved beyond a reasonable doubt both that the defendant committed the crime of compounding and also that the defense of restitution or indemnification is untrue, then you must find the defendant guilty of compounding.
(CONFERS)
The law provides that the defendants conferring or agreeing to confer restitution or indemnification is a defense to the charge of compounding.However, to constitute a defense the pecuniary benefit whichhe/sheconferred or agreed to confer must not have exceeded an amount which the defendant reasonably believed to be due to the victim as restitution or indemnification for harm caused by the offense.
The defendant as part ofhis/herdenial of guilt raises the defense that the pecuniary benefithe/sheconferred or agreed to confer upon the victim did not exceed an amount whichhe/shereasonably believed to be due to the victim as restitution or indemnification for harm caused by the offense.This defense is a complete defense to the crime charged.If you conclude that the State has proved the crime of compounding beyond a reasonable doubt and only if you so conclude, then you must consider the defense that the pecuniary benefit conferred by the defendant, or whichhe/sheagreed to confer, did not exceed an amount which the defendant reasonably believed to be due to the victim as restitution or indemnification for harm caused by the offense.The law then places upon the State the burden of disproving the truth of this defense beyond a reasonable doubt.
Therefore, if you conclude that the State has proved the crime of compounding beyond a reasonable doubt, but you have a reasonable doubt as to whether or not the defense of restitution or indemnification is true, then you must find the defendant not guilty of compounding.If you conclude that the State has proved beyond a reasonable doubt both that the defendant committed the crime of compounding and also that the defense of restitution or indemnification is untrue, then you must find the defendant guilty of compounding.
If you find that the State has proved all of the foregoing elements of the criminal offense beyond a reasonable doubt, you should find the defendant guilty of compounding in the second degree, unless the thing of value (accepted or agreed to be accepted) (conferred or agreed to be conferred) is any benefit of $200.00 or less, in which case you should find the defendant guilty of compounding in the third degree.If the State has failed to prove any of the elements of the offense beyond a reasonable doubt, you must find the defendant not guilty.

Complaint to Admit Photocopy of Will


Under New Jersey Law, the people selected as an executor of a Will have numerous legal responsibilities following the death of the person who signed the Will. Primarily, they have a duty to probate the Will, liquidate assets, pay bills and taxes, file all necessary tax returns, file paperwork with the surrogate, then distribute the assets to beneficiaries. If there is no will, someone can petition the surrogate to be appointed as "administrator" of the estate.
In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, occasionally the Executor simply fails to timely carry out their duties. When there is only a copy of the Executor will have their attorney File a Complaint in Superior Court.
COMPLAINT TO ADMIT COPY OF WILL
A Complaint to admit copy of will is filed with the Superior Court Probate Part. A signed certification of the Executor and beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney notify potential beneficiary, plus to appear before the court at a specific date and time. Competent elder law/probate attorney may charge an hourly rate of $270-$380 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front.
COURT RULE 4:84. THE FOLLOWING ARE COMPLAINTS IN CASES IN WHICH SURROGATES COURT NOT ABLE TO ACT 4:84-1. In General
In any case in which, under R. 4:82, the Surrogates Court may not act, any person in interest may file a complaint and apply for an order directed to all other interested parties to show cause why the relief sought should not be granted. Service shall be as provided by R. 4:67-3.
4:84-2. Probate in the Superior Court
If a will is sought to be proved in the Superior Court, proceedings for discovery shall be available pursuant to R. 4:10, R. 4:12 to 4:19 inclusive, R. 4:21 and R. 4:23. On the taking of a deposition, a photocopy of the will shall be marked for identification by the person before whom the deposition is taken. If the will is admitted to probate, the judgment of the Superior Court shall direct that the will be filed with and recorded by the Surrogates Court. Letters of appointment shall then be issued by the Surrogates Court.

Thursday, February 08, 2018


E375



1. Fly the Flag on 9/11.

2. Do I have a Case if Involved in an Accident?

3. Recovering Attorneys Fees in Litigation Cases?

4. Free Will Seminars and Speakers Bureau

5. Next community events & races including 911 Memorial Runs.

1. Fly the Flag on 9/11
GET YOUR FLAG READY!Please join us in this FLY THE FLAG campaign and PLEASE forward this Email immediately to everyone in your address book asking them to also forward it. If you forward this email to least 11 people and each of those people do the same, thousands can be reached!

THE PROGRAM:On Saturday, September 11th, 2011, an American flag should be displayed outside every home, apartment, office, and store in the United States. Every individual should make it their duty to display an American flag on this seventh anniversary of one our countrys worst tragedies. We do this honor of those who lost their lives on September 11, 2001, their families, friends and loved ones who continue to endure the pain, and those who today are fighting at home and abroad to preserve our cherished freedoms.

In the days, weeks and months following 9/11, our country was bathed in American flags as citizens mourned the incredible losses and stood shoulder-to-shoulder against terrorism. Sadly, those flags have all but disappeared. Our patriotism pulled us through some tough times and it shouldnt take another attack to galvanize us in solidarity. Our American flag is the fabric of our country and together we can prevail over terrorism of all kinds.
Action Plan:So, heres what we need you to do;
1. Forward this email to everyone you know, at least 11 people. Please dont be the one to stop this chain. Take a moment to think back to how you felt on 9/11 and let those sentiments guide you.
2. Fly an American flag of any size on 9/11. Honestly, Americans should fly the flag year-round, but if you dont, then at least make it a priority on this day.

2. Do I have a Case if involved in an Accident?
People frequently contact lawyers after they have gotten hurt to ask do I have a case? When answering this question, lawyers consider several factors. First, a lawyer must determine whether someone was negligent. The issue of negligence is based upon whether the injured party was owed a duty of care from someone else. Any breach of that duty of care, either through reckless or careless behavior, can be considered negligence.
However, the analysis does not stop there. A lawyer must then consider if the injured person is entitled to an award of damages. Damages are monetary compensation intended to address an injury that someone has sustained. Damages can be awarded to pay an injured partys medical bills, reimburse him for lost salary, fix damaged property, and account for pain and suffering.
In some instances, a person may have been injured through someones negligence, but has suffered no damages. If that happens, a lawsuit may not be advisable. Obviously, no one should make this determination on their own.
Source:News from Courter, Kobert & Cohen, PC.
3. Recovering Attorneys Fees in Litigation Cases?
Many litigants are surprised to learn that they cannot recover their attorneys fees if they win their lawsuit. The reason is quite simple - New Jersey follows the American Rule. The American Rule means that each litigant pays his own attorney regardless of who ultimately prevails.
New Jersey Court Rule 4:42-9 has certain exceptions to the American Rule. It generally permits an award of attorneys fees where such fees are allowed by statute or the Court Rules. In addition, attorneys fees may be recovered in a contract dispute if the written agreement permits the prevailing party to recover those fees.
Prospective litigants should, therefore, be mindful of the amount of money in dispute and seek to obtain an accurate estimate of the fees and costs that will be incurred during each phase of a litigated matter. As is the case with any business decision, a cost/benefit analysis should be thoroughly considered with your lawyer before proceeding into litigation and when contemplating a potential settlement.Source:News from Courter, Kobert & Cohen, PC
For representation in Northwest NJ callParis P. Eliades(973) 726-0555
Sparta, New Jersey
4. Free Will Seminars and Speakers Bureau
The AARP Network Attorneys of the Edison/Metuchen/East Brunswick area had established a community Speakers Bureau to provide educational programs to AARP and senior clubs, Unions and Middlesex County companies. During the past year, volunteer attorneys of the Middlesex County Estate Planning Council have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups. These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar. The following Seminars are now available:
Details on the 2 programs currently offered:
1. WILLS & ESTATE ADMINISTRATION- PROTECT YOUR FAMILY AND MAKE PLANNING EASY
2. NEW PRIVACY LAW REQUIRES POWER OF ATTORNEY OR WRITTEN CONSENT FOR DOCTORS TO DISCUSS MEDICAL ISSUES WITH SPOUSE OR FAMILY.
All instructors are licensed attorneys who have been in practice at least 17 years. All instructors are members of the American Bar Association, New Jersey State Bar Association, and Middlesex County Bar Association.
All programs include free written materials.
You dont have to be wealthy or near death to do some thinking about a Will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of state law.
Topics discussed include: Who needs a Will?; What if you die without a Will (intestacy)?; Mechanics of a Will; Selecting an executor, trustee, and guardian; Proper Will execution; Cost of an uncomplicated Will; Where should Wills be kept?; Living Will; Powers of Attorney; $10,000 annual gift tax exclusion, Bequests to charity, Why you need a Self-Proving Will and Estate Administration/ Probate.
Sample materials: Hand-outs on Wills, Living Wills/Medical Advance Directive, Power of Attorney, Probate and Administration of an Estate, Real Estate, Working with your Attorney, Consumers Guide to New Jersey Laws, and Senior Citizen Rights.
SPEAKERS BUREAU
At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the Speakers Bureau is a service designed to educate citizens about how laws affect their lives and how the judicial system operates. We have attorneys available to speak to business persons, educational, civic and social organizations on a wide range of topics during business hours.
HELP YOUR MEMBERS LEARN THE LAW,
PREVENT OR AVOID LEGAL PROBLEMS
Chances are many of your members have been in a situation where they could have benefited from legal advice. Have you ever been in an accident? Has a motor vehicle or criminal complaint ever been filed against you or a member of your family? Many individuals face these and other types of problems. Often people do not protect their rights, only to later face lengthy license suspensions or even jail for failure to resolve legal problems early on. Thats why Legal Rights Seminars are offered.
This means your members can get advice and possibly prevent legal problems before they occur. Most importantly, they can have peace of mind.
Americans need an attorney when legal problems strike. As in the case of medical services, early treatment can prevent catastrophe and its attendant cost in time and money. For example, psychological studies have demonstrated that there is a direct correlation between legal problems and lost work time and productivity. Employees work performance often has a direct relationship to personal legal problems. Therefore, the sooner a solution can be found for the employees problems, the sooner employees can focus on their work.
In todays complex world, few people can function successfully and safely without competent legal advice. In order to insure your estate plans are legally set up, you need to know exactly where you stand so that you can avoid possibly catastrophic mistakes impacting both you and your family. For additional information on the Legal Seminars, contact our Coordinator, Kenneth Vercammens law office at (732) 572-0500.
5. Next community events & races including 911 Memorial Runs
If you are attending any of these charity races, please call or email Ken V. Often we car pool or meet at these events.
9/4/11 Jimmy D 5k New Brunswick 9am free beers
9/5 MondayPier House 5K, Long Branch8:30
9/5 So Plainfield 3 mile 9:15
9/10 Fallen Heroes Memorial Run Bar Anticipation, Lake Como 5k 9:30 Co-Sponsor Wakefern
9/11 911 Memorial run Belmar 6pm Belmar [not a race]
To memorialize all from the Jersey Shore who were lost on September 11, 2001
Belmar, NJ.Start On the Boardwalk across from
Dunkin Donuts [GPS-1601 Ocean Avenue, Belmar]
Sunday - September 11 - 6 PM
This is not a Race.
We start in Belmar with the reading of the first section of names from the Jersey Shore who were lost on that tragic day. We will run in Silence as a group to the September 11 Memorial in Spring Lake where more names will be read by all of the runners and flags and flowers will be placed on the memorial. We will then proceed to a memorial as a group again in silence where the rest of the names will be read. After an additional moment of silence we will return to the start.
There is no charge or registration fee, no t-shirts, no clock, no bib numbers and no awards. All are Invited to Commemorate those Lost.

Jersey Shore Running Club - www.jsrc.org