In this issue:
1. Conviction for boat DWI not a traffic offense.
2 Medical records can be reviewed in gun forfeiture.
3. Double jeopardy bars prosecution for same conduct.
4 Court would not permit attack on old guilty plea based on adequacy of factual basis for 2001 guilty plea.
5. Government employee could forfeit job even if non work related conviction.
6. Upcoming Professional events:
Friday, May 20- What’s New In Municipal Court: A Municipal Court Symposium
5/27/2005 Join Ken V and friends on May 27, the Friday night before Spring Lake 5 race for "Legends Night" in Belmar.
7. We Can Help You In Many Areas Of Law
1. Conviction for boat DWI not a traffic offense. State v. Solarski 373 NJ Super. ___ (App. Div. 2005).
A conviction for operating a vessel while intoxicated under N.J.S.A. 12:7-46 is not a conviction for driving while intoxicated under N.J.S.A. 39:4-50. Defendant, who was convicted of driving while intoxicated in 1987 and operating a vessel while intoxicated in 1994, should have been sentenced as a second offender, not a third offender, after pleading guilty in 1998 to driving while intoxicated.
2 Medical records can be reviewed in gun forfeiture. State v. Cordoma 372 NJ Super. 524 (App. Div. 2004).
Where defendant objected to the introduction of medical documents he had submitted in support of his application for disability benefits, there was insufficient evidence to find that he was unfit to possess a firearm, although the evidence did provide a rational basis, pursuant to N.J.S.A. 2C:58-3c, to question his suitability to posses a firearm; defendant's right to confidentiality is subordinate to the State's interest in preventing the possession of firearms by someone statutorily disqualified. Source: 178 N.J.L.J 617
3. Double jeopardy bars prosecution for same conduct. State v. Colon 373 NJ Super. ___ (App. Div. 2005).
This opinion addresses the recurrent issues that arise from the application of constitutional, statutory and equitable double jeopardy principles when a municipal court prosecution has resulted in pleas of guilty while an indictment arising from the same series of events is pending. In particular, it focuses on the effect of massive deficiencies in the municipal court proceedings on a subsequent double jeopardy claim, on the potential for continued use by the New Jersey Supreme Court of "same conduct" test in determining double jeopardy under state constitutional principle, and on the burden of proving that the same evidence supports both convictions in circumstances in which the factual basis for the pleas in municipal court is unstated.
4 Court would not permit attack on old guilty plea based on adequacy of factual basis for 2001 guilty plea. State v. Mitchell 373 NJ Super. ___ (App. Div. 2005).
Where a 2001 judgment of conviction included suspension of imposition of sentence, and where in 2003 the court granted a petition to revoke the suspended sentence and imposed a prison term on defendant for the crime to which he had entered his guilty plea in 2001, neither the adequacy of the factual basis set forth on the record in 2001 nor the asserted mental status of defendant at the time of the plea in 2001 could be raised as a basis to attack the imposition of the sentence in 2003.
5. Government employee could forfeit job even if non work related conviction. State v. Och 371 NJ Super. 274 (App. Div. 2004).
Defendant's employer, Middle Township Board of Education (Board), could seek forfeiture of defendant's employment following his conviction of wandering or loitering for the purposes of obtaining a controlled dangerous substance contrary to N.J.S.A. 2C:33-2.1. Applying these various principles to this case, however, the court concluded that the issue of forfeiture was never "raised" in a court of this State and the Board was not precluded from applying for an order of forfeiture pursuant to N.J.S.A. 2C:51-2g.
Here, the county prosecutor could have sought a waiver of forfeiture because defendant entered a plea of guilty to a disorderly persons offense. It is undisputed that the assistant prosecutor did not seek a waiver and no waiver of forfeiture was entered by the judge who accepted the plea and imposed the sentence. With no waiver of forfeiture, the Board retained the authority to apply for an order of forfeiture pursuant to N.J.S.A. 2C:51-2g, and is entitled to entry of that order unless a judge finds that the offense does not involve or touch defendant's employment. In view of the unique circumstances of this case, however, fundamental fairness suggests that defendant should be given the opportunity to withdraw his plea before the Board proceeds with its application to forfeit defendant's employment on the basis that the conviction involves or touches his position. Source: NJ Facts-on-Call Order No. 17143
6. Upcoming Professional events:
What’s New In Municipal Court:
A Municipal Court Symposium
Friday, May 20
1:00 – 2:30 p.m.
Ballys Hotel & Casino, Atlantic City,
Tivoli Garden Room, Ballroom Level
Including these hot topics …and more
∑ Alcotest 7110 Implementation Statewide in DWI
∑ Interlocking Devices –proposed new legislation
∑ Proposed Amendment of Plea Bargain Guidelines
∑ Driving While Suspended Developments
∑ Review of new AG Guidelines on DWI
∑ Collateral Consequences of Municipal Court Convictions
∑ Ethics in the Municipal Court criminal, DWI and drug cases today
Jeffrey Evan Gold, Esq.
Gold & Laine
Cherry Hill & Mt. Holly
Kenneth A. Vercammen, Esq.
Immediate Past Chair, Municipal Court Practice Section
Kenneth Vercammen & Associates, PC
Richard M. Keil, Esq.
John Menzel, Esq.
Robert E. Ramsey, Esq.
5/21/2005 Metuchen 5k Run for Beringer House 5k, run 8:30am Metuchen NJ 732-549-9674 nice course, big community event
5/27/2005 Join Ken V and friends on May 27, the Friday night before Spring Lake 5 race for "Legends Night" in Belmar. Meet us at D'Jays at 6pm, later we go to Bar Anticipation.
5/28/2005 The Spring Lake Five Mile Run 5 mile, 8:30am
7. We Can Help You In Many Areas Of Law
Many of our clients are unaware that we offer a full range of legal services to individuals, families and businesses. Some key areas where we can help you are personal injury, estate planning, real estate, family law and business matters.
We want you to think of us as your law firm. When you need legal help in any area of law, please call us. We have over 19 years experience and have helped hundreds of clients. We can help you for all your legal needs.
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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