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Friday, July 20, 2007

NJ Laws Newsletter E213 May 8, 2006

In this issue:
Recent cases:
2 Litigation privilege protects special counsel. Loigman v. Township Committee of Middletown
3. Trial de novo judge erred in "affirming" the municipal court guilty finding. State v. Stepongzi
4. Suppression of evidence where no reason for police to believe defendant armed. State v. Potter
5. New webpages:
DWI Affirmed on Appeal Based on Observations, Only, Not BAC Even though No Guilty Finding on Observation at Trial


By Neil A. Derman, Esquire

In 2003, New Jersey judicial system upheld the state's ban on same sex marriages. In 2004, the Domestic Partnership Act was adopted giving same sex couple limited rights in areas they were not provided for before. The Act provides for formal recognition of domestic partnerships, without recognizing a right to same sex marriages. The New Jersey Domestic Partnership Act offers certain financial rights that recognized marriages currently enjoy.

On the surface, the act seems to be a positive step forward in the rights of same sex couples, wishing to achieve equal status in the state of New Jersey. But how does such an Act affect opposite sex senior citizen couples?

Actually, the New Jersey's Domestic Partnership Act is applicable not only to same sex couples, but to opposite sex couples over the age of 62. Why would the act be applicable to opposite sex couples over age 62?

Senior Citizens or retired individuals are provided with additional tax benefits. Many of these senior citizens are widowed, or single, and are supported by their retirement benefits. These retirement benefits often come with certain stipulations. One of these stipulations involves re-marriage, and a potential reduction in your retirement income. The potential loss of retirement benefits for senior couples may deter marriage, despite a devoted relationship.

Allowing opposite-sex couples over the age of 62 the benefit of the Domestic Partnership allows them the ability to enjoy the status they would have received had they married without affecting their retirement income status.

To qualify under the Domestic Partnership act both persons must have a common residence within the state of New Jersey and both persons are jointly responsible for each others common welfare (evidenced by joint financial arrangements or ownership of real or personal property). Both persons must also agree to be jointly responsible for each others basic living expenses and neither person must be in a recognizable marriage according to New Jersey law. Finally both persons have chosen to share in each others lives in a committed relationship of mutual caring.

However, it must be noted that the New Jersey Domestic Partnership act falls short of marriage. It does not extend certain rights which may be considered a central aspect of marriage. For example, there is no equivalent of alimony or division of marital assets for domestic partners.

But most importantly a domestic partner has not been included in the recent New Jersey intestate succession scheme. Therefore if one partner dies without a will, the other partner may still receive nothing at all, whereas a spouse would be entitled to a large share of the estate. It is imperative that those couples that enter into a Domestic Partnership update their estate planning documents to comply with their current situation.

If you are over the age of 62, and involved in a long term relationship, the New Jersey Domestic Partnership act may be helpful in ensuring that you are able to receive most of the benefits of marriage without losing any of your retirement income. A domestic partnership agreement can be obtained from a Local Registrar of Vital Statistics in any municipality throughout the State of New Jersey. Also, bet sure to check and update your estate planning documents, making sure you provide for your partner.

Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.

The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Tom Begley Jr. at 800-533-7227.

Recent cases:
2 Litigation privilege protects special counsel. Loigman v. Township Committee of Middletown 185 NJ 566 (2006).
The litigation privilege protects Township’s special counsel Savage and the Township from being haled into a civil court to face a damages judgment as a result of Savage’s sequestration motion. In addition, Savage’s role as special counsel for the Township at the administrative hearing did not transform him into a municipal “policy maker” under § 1983.
3. Trial de novo judge erred in "affirming" the municipal court guilty finding. State v. Stepongzi, Appellate Division 14-2-2638, Decided Jan. 19, 2006 unpublished
The Appellate Division held because defendant raises the "affirmation" of the Municipal Court judge's conviction, the court reversed and remanded to require the Law Division judge to make independent findings based upon the evidence in the Municipal Court record giving due regard to the Municipal Court judge's opportunity to determine the credibility of the witness.
In a trial de novo, rather than using the substantial credible evidence standard of review, the judge is required to determine the case anew on the Municipal Court record, giving due regard to the opportunity of the Municipal Court judge to pass upon the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super 374, 383 (App. Div. 2000); State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995); State v. Ross, 189 N.J. Super. 67, 75 (App. Div.) certif. denied, 95 N.J. 197 (1983).

4. Suppression of evidence where no reason for police to believe defendant armed. State v. Potter Appellate Division, A-2683-04T4, December 16, 2005, not approved for publication.
The Defendant, according to Officer Pangaro, made a sudden and furtive movement to his pocket, thereby increasing Pangaro's concern for his own safety and that of his fellow officers. However, the court found it significant that the pat-down had commenced when the furtive movement was made, and it occurred in response to that pat-down, not as its prelude. When the pat-down began, any suspicion of weapons possession could only have been premised upon the observation by Pangaro that defendant stood up abruptly when the police entered the room and thereafter appeared to be nervous. At no point prior to the pat-down did defendant engage in any conduct of a threatening nature or fail to comply with police commands.
The court found in these circumstances that evidence that defendant stood in the presence of police and then exhibited nervousness does not provide a legally sufficient basis for the search of his clothing. State v. Dangerfield, 171 N.J. 446, 464 (2002) (flight on bicycle upon seeing police will not support a Terry frisk); cf. State v. Carty, 170 N.J. 632, 648 (Under the New Jersey Constitution, the appearance of nervousness is not sufficient grounds for the reasonable and articulable suspicion necessary to extend the scope of a detention beyond the reason for the original stop."), mod. on other gr. 174 N.J. 351 (2002); State v. Costa, 327 N.J. Super. 22, 32 (App. Div. 1999) ("A Terry stop must be supported by more than just an awkward reaction to police presence.").

5. New webpages:
DWI Affirmed on Appeal Based on Observations, Only, Not BAC Even though No Guilty Finding on Observation at Trial. State v. Reiner

Law Enforcement Cannot Fabricate Evidence to Get Confession. State v. Patton

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Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817
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website: www.njlaws.com

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