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Friday, July 20, 2007

NJ Laws Newsletter E166 October 14, 2004

In this issue:

5. New articles this week on website: civil, Criminal, Elder, litigation articles added to website www.njlaws.com

1. Ecstasy - A criminal offense in New Jersey

According to New Jersey Police Departments, Ecstasy is a slang name for the chemical substance methylene dioxy methamphetamine, or MDMA, that combines a powerful stimulant with a hallucinogen. MDMA is chemically similar to the synthetic stimulant methamphetamine.
Street "Ecstasy" could contain just about anything. It is generally manufactured in clandestine labs by criminal drug dealers, not chemists. Ecstasy usually comes in tablets, which have been found to contain anywhere from 0-50% MDMA. The most common non-MDMA ingredients in "Ecstasy" are aspirin, caffeine, and other over-the-counter medications.
One of the most dangerous additives commonly found in "Ecstasy" is DXM (dextromethorphan,) a cough suppressant. In the doses usually found in fake Ecstasy, 13 to 14 times the amount found in cough syrup, DXM can cause hallucinations. DXM inhibits sweating, so it can cause heatstroke and death. Another dangerous adulterant in so-called Ecstasy is PMA (paramethoxyamphetamine), an illegal drug that is a potent hallucinogen. Like MDMA, PMA causes an elevation in body temperature, but at an even more drastic rate.
Ecstasy tablets may be any color, and are generally embossed with a logo or design such as a butterfly, heart, lightning bolt, star, clover, or Zodiac sign. Ecstasy is sometimes found in powder or in capsules.

Details on jail and other penalties for Ecstasy on our new website page http://www.njlaws.com/ecstasy_a_criminal_offense_in_nj.htm
2 Directive #10-04 - Requirement to Review a Defendant’s "Certified Driver Abstract" Prior to Sentencing for Driving While Intoxicated and Other Motor Vehicle Offenses with Graduated Penalties

FROM: Richard J. Williams, AOC August 31, 2004

All judges must obtain and review a current “Certified Driver Abstract” from the Motor Vehicle Commission (“MVC”) before sentencing a defendant for motor vehicle offenses that carry increased penalties for subsequent offenses. It is inappropriate for the sentencing judge to rely on the representations of the prosecutor, defense counsel, or defendant as to the defendant’s driving record. The offenses include, but are not limited to:

(1) driving while intoxicated, N.J.S.A. 39:4-50;
(2) refusal to submit to chemical test, N.J.S.A. 39:4-50.4a;
(3) driving while suspended, N.J.S.A. 39:3-40;
(4) operating a commercial vehicle while intoxicated, N.J.S.A. 39:3-10.13;
(5) refusal to submit to chemical test while operating a commercial vehicle, N.J.S.A. 39:3-10.24;
(6) driving without insurance, N.J.S.A. 39:6B-2;
(7) leaving the scene of an accident, N.J.S.A. 39:4-129; and
(8) boating while intoxicated, N.J.S.A. 12:7-46.

In order to impose a proper sentence for any of these offenses, the judge must know whether the defendant has previously violated that statute. Accordingly, it is the prosecutor’s responsibility to provide the court with the Certified Driver Abstract. If the prosecutor fails to do so, however, the court should proceed with sentencing only if court staff has obtained a Certified Driver Abstract on-line from the MVC’s database.

In the case of an out-of-state driver, the judge, before sentencing, should examine both the defendant’s New Jersey Certified Driver Abstract and the defendant’s driving record for the licensing state. The judge should request that the prosecutor obtain and provide the court with the defendant’s driving record from the licensing state as soon as possible. If, however, the prosecutor has not provided the out-of-state driving record by the scheduled court date, the judge should proceed with sentencing the defendant without the out-of-state driving record. In such instances, however, before imposing sentence, the judge should on the record require the prosecutor to provide the out-of-state driving record when it is obtained. When a defendant is sentenced in the absence of the out-of-state driving record and the prosecutor later provides the court with sufficient proof that the defendant should have been sentenced to an enhanced penalty by virtue of an out-of-state conviction, the court shall require the defendant to appear for re-sentencing.

Further, when imposing sentence for a motor vehicle offense with increased penalties for subsequent offenses, the judge must explicitly state on the record that he or she has personally examined the Certified Driver Abstract and must place on the record the date of the Certified Driver Abstract that was reviewed and the number of times defendant has been previously convicted for that offense. See R. 1:7-4(a), R. 3:21-4(g), and R. 7:9-1(b).

3. Weapon in apartment could be possession. State v. Spivey 179 NJ 229 (2004).
Evidence of a gun and drugs that were uncovered during a search of the defendant's apartment were sufficient to convict the defendant of possession of a firearm "while in the course of" possessing with intent to distribute CDS within 500 feet of a public park. Source: New Jersey Lawyer April 12, 2004 p. 18

13. Map not necessary for public housing CDS. State v. Trotman 366 NJ Super. 226 (App. Div. 2004).
Although the prosecution did not rely on the prima facie presumption created by N.J.S.A. 2C:35-7.1e (applicable when a municipality or county has adopted an ordinance approving as an official record a map depicting areas within 500 feet of all public housing facilities), the statute does not preclude any other evidence or testimony to establish an element of the offense, including any other map that is admissible under the Rules of Evidence, and the State produced proof, sufficient in quality and quantity - through the testimony of a police officer (who, using a map, located the site of the drug transaction as within 500 feet of a public-housing facility) and the executive director of the housing authority (who testified to the ownership and location of the public-housing units) - for the jury to find that defendant had distributed cocaine within 500 feet of a public-housing facility, and her conviction is affirmed; the prosecution was not required to prove as an element of the offense that the housing authority possessed valid title - 2C:35-7.1 seeks to ensure that the property in question is being used as a public-housing facility. Source: New Jersey Law Journal February 16, 2004 p. 68

14. Paintball Gun can be a weapon. State in the Interest of G.C. 179 NJ 475 (2004).
A juvenile's admission to shooting a paintball gun at an unoccupied vehicle was an adequate factual basis for his plea to unlawful possession of a weapon. Source: New Jersey Lawyer May 10, 2004 p. 18

In a DWI case, State v. Farrell NJ Super (App. Div 1999) a DWI conviction
was reversed and case dismissed based on speedy trial violation. The court
held: "Excessive delay in completing a prosecution can potentially violate a
defendant's constitutional right to a speedy trial as a matter of
fundamental fairness, apart from whether double jeopardy standards have been
contravened. Id. at 354-55. In cases arising from municipal court DWI
prosecutions, just as with criminal prosecutions, consideration whether the
right to a speedy trial has been violated is guided by the four factors
announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L.
Ed.2d 101, 117-18 (1972). Gallegan, supra, [117 NJ 345, 1989] 117 N.J. at
355; State v. Prickett, 240 N.J. Super. 139, 143 (App. Div. 1990)." Farrell,
Specifically, the court must engage in a multi-element balancing process
of the four factors: the length of the delay, the reasons for the delay,
whether the defendant asserted his right to speedy trial, and any prejudice
to the defendant occasioned by the delay. Gallegan, supra, 117 N.J. at 355;
State v. Marcus, 294 N.J. Super. 267, 293 (App. Div. 1996), certif. denied,
157 N.J. 543 (1997)
More information on speedy trial on our new article at http://www.njlaws.com/speedy_trial.htm

5. New articles this week on website:
Estate Planning for Stroke Victims & Guardianship of Disabled Adults
If someone suffers a stroke, but is competent, it is recommended that a Power of Attorney be prepared by an attorney to permit a family member to help the stroke patient by paying bills and handling finances.
Generally, many attorneys will require:
1. A note from the Doctor indicating the person is competent to sign a Power of Attorney [and Will if the Will has not yet been prepared].
2. The client [stroke victim, not a family member] to specifically advise the attorney the specific person they want to appoint to handle their financial affairs. [The attorney cannot rely on a family member saying what the client/ patient wants.]

Prior to an individual being unable to manage his or her life as a result of a mental or physical disability, legal planning should be done. If a legally prepared Power of Attorney was signed, a trusted family member, friend or professional can legally act on that person's affairs. If a Power of Attorney was not signed, we will only prepare a Power of Attorney for a "competent person". If, after a stroke, the person is not competent, an attorney may be retained to file a formal complaint and other legal pleadings in the Superior Court to permit the trusted family member, friend, or professional to handle financial affairs. This is called a Guardianship.


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Kenneth Vercammen, Esq.
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