In this issue:
1. Conviction reversed where court excluded character evidence
2. Juvenile cannot be in contempt for not obeying rules of home
3. Harassment was not Cursing at 911 operator
4. Domestic violence reversed where Family Judge did not make fact finding
5. New web articles on our Law Clerk established website
LEGAL PUBLICATIONS OF KENNETH VERCAMMEN
http://www.geocities.com/kenvnjlaw/legalpublications.html
Statute of Limitations: Criminal & Traffic
http://www.geocities.com/kenvnjlaw/statuteoflimitations.html
The Word "Lawyer" in Foreign Languages
http://www.geocities.com/kenvnjlaw/lawyerforeignlanguage.html
Estate Planning Ideas for Single, unmarried parents
http://www.geocities.com/kenvnjlaw/EstatePlanningsingleunmarried.html
6. If You Are In An Accident, Depending On The Circumstances, You May Be Able To:
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1. Conviction reversed where court excluded character evidence State v Mahoney ___ NJ Super. ___ 868 A. 2d 1171 (App. Div., A-3364-02T2 decide March 17, 2005).
Defendant is an attorney who was tried before a jury and convicted of third-degree theft by failure to make required disposition of property; third-degree misapplication of entrusted property; and two counts of third-degree forgery. The conviction for theft was based on defendant's delay in disbursing to his clients proceeds from a settlement of a wrongful-death case. With respect to the forgery conviction, the state presented evidence that defendant endorsed and deposited the three-party settlement check without his clients' authorization. The prosecutor denied defendant's application to enter pretrial intervention (PTI) and, on appeal from the prosecutor's denial, the trial court affirmed. Relying on PTI Guideline 3(i), as codified in Rule 3:28, the prosecutor concluded that, as a licensed attorney, defendant was presumptively ineligible to participate in PTI because he was charged with committing crimes that involved a breach of the public trust.
The Appellate Division reversed the convictions. They concluded that the trial court improperly excluded substantial portions of proffered testimony by defendant's character witnesses. The trial court erroneously prevented these witnesses from testifying abut defendant's character traits as an attorney, and improperly barred them from testifying about the specific experiences they had with defendant that formed the basis for their opinions. The trial court also improperly submitted to the jury the full test of Rule 1:21-6. The error here involved the court's failure to provide instructions to the jury on how to consider and apply the rule's directives to the facts of this criminal case. The court also reversed based on the prosecutor's improper remarks during summation.
The Appellate Division court affirmed, the trial court's denial of defendant's PTI application. Although defendant's status as a lawyer does not operate as a per se impediment for consideration for enrollment into PTI, we are satisfied that the trial court correctly determined that defendant failed to show that the prosecutor's application of the presumption of ineligibility articulated in Guideline 3(i)(4) constituted a patent abuse of discretion.
2. Juvenile cannot be in contempt for not obeying rules of home State in the Interest of S.S. __ NJ __ (2005 Supreme Court; per curiam opinion; decided March 22, 2005 A-29).
A juvenile, brought before the court under a juvenile family-in-crisis petition, may not be adjudicated delinquent based on a criminal contempt arising out of the juvenile's repetitive run-away conduct and truancy in violation of a court order to "obey the rules of home and school"; the issue of how the court may enforce its orders while giving appropriate protection to the juvenile is referred to the Conference of Family Presiding Judges for study and recommendations. Source: 179 NJLJ 1331
3. Harassment was not Cursing at 911 operator State v Duncan __ NJ Super. __ (App. Div. A-6705-03T3 April 14, 2005, Decided)
Conviction for harassment was reversed where Defendant was following shortly behind an ambulance transporting his eighty-nine-year-old aunt, who had just broken her hip, to a hospital and became upset that what he regarded as an improper roadblock would delay his arrival at the hospital. Defendant pulled over to a pay phone where, at approximately 1:14 p.m., he called the 9-1-1 emergency number to express his displeasure and cursed at the operator. Defendant appealed from a judgment of conviction on the downgraded charge of harassment, N.J.S.A. 2C:33-4a, in connection with a call he made to 9-1-1. He had initially been charged with N.J.S.A. 2C:33-3e (the fourth-degree offense of knowingly placing a call to 9-1-1 without the purpose of reporting the need for 9-1-1 services), which the prosecutor downgraded to harassment.
Based on these circumstances, the Appellate Division wrote "we are convinced an inference cannot be drawn that defendant had the conscious intent to harass the dispatcher or, indirectly, the police officers involved in the roadblock. That is not to say that defendant's conduct was not impolite or vexatious, or that his repetitive use of what is commonly termed a "curse word" was within socially recognized bounds of appropriate language. We are concerned, however, with the dangers of overextending a criminal statute to rude behavior which is not directed towards anyone specifically but only towards an institution in general. Defendant's mere venting of frustration or irritation at the situation is insufficient by itself to constitute harassment under the statute."
4. Domestic violence reversed where Family Judge did not make fact findings. Johnson v. Johnson (App. Div. decided October 21, 2004). A-4566-02T3, unreported
Final domestic violence restraining order entered against the defendant husband reversed; the Family Part did not make specific findings to support its conclusion that the defendant had committed the domestic violence acts of simple assault and harassment against the plaintiff wife; the Family Part also incorrectly defined "simple assault" as an "unwanted touching" because the definition did not include the defendant's state of mind and because the court did not address whether the plaintiff had sustained "bodily injury"; furthermore, the Appellate Division was unable to review whether there was an "unwanted touching" that constituted harassment because the Family Part failed to make any findings as to the defendant's mental state. Source: NJ Facts-on-Call Order No. 17197.
5. New web articles on our Law Clerk established website
LEGAL PUBLICATIONS OF KENNETH VERCAMMEN
http://www.geocities.com/kenvnjlaw/legalpublications.html
Statute of Limitations: Criminal & Traffic
http://www.geocities.com/kenvnjlaw/statuteoflimitations.html
The Word "Lawyer" in Foreign Languages
http://www.geocities.com/kenvnjlaw/lawyerforeignlanguage.html
Estate Planning Ideas for Single, unmarried parents
http://www.geocities.com/kenvnjlaw/EstatePlanningsingleunmarried.html
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6. If You Are In An Accident, Depending On The Circumstances, You May Be Able To:
Recover money even if there were no witnesses.
Recover money even if police did not come to the accident scene.
Recover money even if you were partly at fault for the accident.
Recover money even if you have no car.
Recover money for your medical bills, lost wages, and pain and suffering.
Recover money without even having to go to court.
Recover money even if you were hit by a driver who does not have insurance.
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Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817
PHONE 732-572-0500 (Fax) 732-572-0030
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