NJ Laws Email Newsletter E254
Kenneth Vercammen, Attorney at Law August 28, 2007
--------------------------------------------------------------------------------
In This Issue
_______________
1. Estate Planning for Blended Families
2. If arrestee transported to police station, full search permitted
3. Police can pat down suspect if they observe drug transaction.
4. Driver can be guilty of DWI based on cocaine hangover
5. Warrantless protective searches depend on location.
--------------------------------------------------------------------------------
1. Estate Planning for Blended Families
By: Thomas D. Begley, Jr., Esquire
A blended family is a family where parents have children by previous marriages. It can also be a situation where children have children from prior marriages. Death and divorce result in larger numbers of second marriages. Second marriages present certain planning problems that need to be addressed.
(1) Emotional Issues. There are often emotional issues. A recently divorced client may have strained relationships with his or her children, because of the attachments those children have with the previous spouse.
(2) Children from Two Marriages. The stepparent may have a difficult relationship with the natural child of the other spouse. An additional issue is providing for a child of a previous marriage without placing the assets intended to benefit that child under the control of the "other" and biological parent.
Life insurance is a useful tool in dealing with this situation.
(3) Obligation Set Forth in Divorce Decrees, Settlements Agreements and Prenuptial Agreements. A settlement agreement negotiated in connection with a final order of divorce may impose obligations on a divorcing parent, such as establishing and funding trusts and designating beneficiaries to fund those trusts. It is important that the estate planning attorney obtain copies of any such agreements to ensure that the estate plan complies with those agreements.
If there is a prenuptial agreement, after the marriage has lasted for some years, the wealthier spouse often wants to deviate from the prenuptial agreement and give the other spouse a larger, more generous provision than anticipated in the agreement. If there is to be a variation from the prenuptial agreement, this should be documented in the estate plan or it may even require an amendment to the prenuptial agreement. In that event, spouses must obtain separate counsel.
(4) Significant Age Differences. If there is a significant age difference between spouses, certain issues must be addressed. Special rules for computing minimum distributions apply if there is more than a 10 year difference in ages between the spouses.
Additionally, the children of the older spouse may resent having to wait for the death of the younger spouse to receive their inheritance. Again, life insurance is a useful vehicle to solve this problem.
(5) Wealth Disparities Between Spouses. Generally, to achieve maximum federal and state estate tax savings, the estates between spouses are balanced. If one spouse has most of the family assets and the other spouse predeceases, the family will not have taken advantage of the opportunity to fund a credit shelter trust to take advantage of the federal or state estate tax exemption. Normally, the solution would be to have the wealthier spouse transfer assets to the opposite spouse so that the maximum funding could be achieved. This may cause resentment among children of the wealthier spouse.
If the wealthier spouse supports his children in a more lavish manner than the less wealthy spouse, there may be resentment not only from the less wealthy spouse but her children as well. The situation is acerbated if the less wealthy spouse is male. The solution may be a joint revocable trust.
(6) Apportionment of Estate Taxes. A common method to designate payment of estate taxes is through the residuary estate. This could result in certain beneficiaries receiving virtually the entire inheritance and the tax being paid by other beneficiaries. This issue is particularly acute when inheritance passes outside the will through non-probate assets, such as beneficiary designations or jointly-owned property. There are three telltale warning signs:
· large non-probate assets passing to beneficiaries or large specific bequests passing to less than all of the beneficiaries;
· beneficiaries of each spouse's will or trust are not the same; and/or
· beneficiaries of non-testamentary trust assets are not the same.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law Seminar and co-author with Kenneth Vercammen, Martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law
2. If arrestee transported to police station, full search permitted
State v. Daniels __ N.J. Super. __ 14-2-7525 5/31/07
Resolving an issue left open in State v. Dangerfield, 171 N.J. 446, 463-64 (2002), the court held that when police effectuate a lawful arrest, even for a minor Penal Code offense, and decide to transport the arrested person to headquarters for processing, a full search of the arrestee is permitted; the police are not limited to a Terry type pat down. Here, defendant was arrested for the petty disorderly persons offense of defiant trespass. As a result, the search of his person prior to being placed in the police car, revealing cocaine, was proper.
3. Police can pat down suspect if they observe drug transaction. State v. O'Neal 190 N.J. 601 (2007)
Based on the observations made by law enforcement officers, there was probable cause to search and arrest O'Neal. The police officer's question to O'Neal that elicited his response without prior Miranda warnings violated Miranda v. Arizona, but was harmless under the circumstances.
4. Driver can be guilty of DWI based on cocaine hangover. State v. Franchetta __ N.J. Super. __ A-1498-06T5 6/28/07
This case presents the novel issue as to whether a "rebound effect" or "hangover effect" from a previous ingestion of cocaine constitutes being "under the influence" of a narcotic drug pursuant to N.J.S.A. 39:4-50. The court held that it does. Although the cocaine ingested by defendant was not pharmacologically active at the time of the incident, the court found that it was the proximate cause of his impaired behavior and that he was therefore "under the influence" of a narcotic drug for purposes of N.J.S.A. 39:4-50.
5. Warrantless protective searches depend on location. State v. Lane 393 N.J. Super. 132 (App. Div. 2007)
Defendant was charged with participating in an armed robbery. The court considered, among other things, the legitimacy of warrantless searches of defendant's backyard and shed that followed both the police interview of defendant in his driveway and defendant's accompanying of all but one police officer to the station house for questioning. The police officer who remained behind at defendant's home, with the aid of a flashlight, looked into defendant's backyard through an open gate in a fence. The officer claimed to have seen a headband worn by one of the robbers. He then entered the yard, picked up the headband, claimed that it was "still warm" -- which to him suggested that it had recently been removed by its wearer - and then conducted a protective sweep of the backyard, which led to the discovery of an automatic rifle in a shed. The trial judge denied the motion to suppress the headband, based on the plain view exception, and denied the motion to suppress the rifle on the protective sweep exception. The court remanded for further proceedings because the trial judge's findings did not fully explain numerous factors applicable to the application of both the plain view exception and the protective sweep exception. And, as a matter of first impression in this state, the court expansively interpreted Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1981), and held that a protective sweep may be validly performed even when an arrest is not performed.
Thank you for reading our newsletter! God Bless America USA #1
Our new law blogs:
NJLaws' Newsletter Blog-http://njlaws1.blogspot.com/
NJ Criminal Law Blog - http://njcriminallaw.blogspot.com/
NJ Traffic Law & Municipal Court Blog - http://traffic-law.blogspot.com/
NJ Personal Injury & Civil Law Blog- http://njlawspersonalinjury.blogspot.com/
NJ Elder Law Blog -http://elder-law.blogspot.com/
NJ Drug Law Blog - http://drugarrest.blogspot.com/
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer:
All materials Copyright 2007. 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
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Tuesday, August 28, 2007
Wednesday, August 15, 2007
NJ Laws Email Newsletter E253 - August 15, 2007
NJ Laws Email Newsletter E253
Kenneth Vercammen, Esq
August 15, 2007
--------------------------------------------------------------------------------
In This Issue
_______________
1. Alzheimer's Lesser Known Devastation - Is Your Family Poised to avoid it?
2. Elder Law 2007 Seminar materials available
3. Suppression reversed where inconsistent stories by driver and passenger. State v. Baum
4. If arrestee transported to police station, full search permitted. State v. Daniels
5. How to approach your parents about their Estate Plan.
--------------------------------------------------------------------------------
Links
Main Website with 500 + articles and 1,000 + links
(732) 572-0500
Greetings Kenneth Vercammen,
1. Alzheimer's Lesser Known Devastation - Is Your Family Poised to avoid it?
By: Dana E. Bookbinder, Esquire
With the incidence of Alzheimer's disease growing at an alarming rate, no one can afford to postpone long term care planning. The June 18, 2007, issue of Newsweek as well as the June edition of AARP Bulletin both report that Alzheimer's currently afflicts over 5 million Americans, and the numbers are expected to rise dramatically, especially as millions of baby boomers are reaching their 60s. According to the recent AARP Bulletin, one in eight people 65 and older currently has Alzheimer's, and half of those 85 and over are afflicted with it. While scientists search for drugs to prevent and remove deposits of plaque in the brain and Congress considers legislation to double funding for Alzheimer's research, families must work to protect themselves.
Alzheimer's takes a tremendous emotional, physical, and financial toll on families who must contend with it. The disease can last many years, and its course is unsteady and varies with each case. Caring for an Alzheimer's victim is also a round-the-clock job. Our office has worked with many individuals caring for a relative prone to wandering at any time of the day or night. The caregiver must tend to both the physical needs of the Alzheimer's patient and his or her safety. Many caregivers intend to keep their loved one at home, but once the disease has substantially progressed and the afflicted individual exhibits erratic behavior and physical problems, a long-term care facility becomes the only viable option. Otherwise, the burdens of providing care eventually would cause the caregiver's own health to diminish.
Because an individual with Alzheimer's eventually does not recognize his or her closest relatives and may even be subject to bouts of yelling or violent behavior, the disease puts enormous strains on family relations. Relationships between siblings are strained as well as relationships between parents and their children. Having worked with families who are contending with Alzheimer's disease for many years, our firm has assisted in many situations where one son or daughter is shouldering the burden of caring for an elderly parent while having to address criticisms by other siblings who do not appreciate the severity of their parent's condition. Sibling relationships often deteriorate when it becomes necessary to hire care providers outside the family. Today, nursing homes charge over $8,000 per month in our area and even home care runs a few thousand dollars a month. Often, the siblings who are not providing care wish to avoid these expenses to preserve a potential inheritance. Contrary to popular misconception, Medicare only covers extremely limited long-term care expenses. Even a home health aide can cost over $20 an hour. Siblings who are not the primary caretakers are best advised to witness the everyday limitations of their parent first-hand and to support their sibling who is the primary caretaker by providing short term respite care or help with errands.
According to the recent Newsweek article, the number of Alzheimer's cases is expected to more than double by the year 2050. In light of this chilling prediction, all individuals must have their estate planning documents in order. These include a Will, Advanced Directive for Health Care, and General Durable Power of Attorney. It is equally critical that family members communicate with one another to discuss health care wishes as well as financial issues and whether long-term care insurance policies are in place. When interviewed by Newsweek, Mark Shalloway, president of the National Academy of Elder Law Attorneys, explained the necessity of a General Durable Power of Attorney by stating that even after a catastrophic illness occurs, routine financial and legal decisions must continue to be made with banks, doctors, etc. For those who are concerned that entrusting others with their financial affairs is risky, the law requires agents under powers of attorney to act in good faith. Otherwise, they may be subject to court proceedings.
Families who are engaging in asset protection planning already know that Medicare cannot be counted on for long term care expenses. They understand that affording assisted living or nursing facilities, home care, or continuing care retirement facilities requires advanced planning. Though scientists are now hopeful that the next generation of Alzheimer's drugs currently under testing will be more effective than previous treatments, our current health care system demands that each of us takes responsibility for our own care in our later years. Proactive legal planning brings the astronomical cost of this care within reach for families of diverse financial means. For those who seek counsel, family finances and relationships are much healthier.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, Martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law
2. Elder Law 2007 Seminar materials available
Changes in the law and Expanding an Elder Law Practice. American Bar Association Annual Meeting Program - San Francisco
Materials available for Free! Send email to kenvnjlaws@verizon.net
3. Suppression reversed where inconsistent stories by driver and passenger. State v. Baum __ N.J. Super. __ 14-2-7526 5/30/07
In this appeal, the court reversed the trial court's suppression of marijuana and cocaine seize in the course of a traffic stop for driving a vehicle with dark tinted windows and without an inspection sticker. The court approved the twenty-six minute roadside investigation that was expanded beyond the initial reason for the stop when the nervous driver failed to produce a license or insurance card and did not know who owned the car. In addition, the driver and passenger told inconsistent stories regarding whether they had traveled to New York by bus or in the car in which they had been stopped.
4. If arrestee transported to police station, full search permitted. State v. Daniels __ N.J. Super. __ 14-2-7525 5/31/07
Resolving an issue left open in State v. Dangerield, 171 N.J. 446, 463-64 (2002), the court held that when police effectuate a lawful arrest, even for a minor Penal Code offense, and decide to transport the arrested person to headquarters for processing, a full search of the arrestee is permitted; the police are not limited to a Terry type pat down. Here, defendant was arrested for the petty disorderly persons offense of defiant trespass. As a result, the search of his person prior to being placed in the police car, revealing cocaine, was proper.
5. How to approach your parents about their Estate Plan.
By: Thomas D. Begley, Jr., Esquire
Begley & Bookbinder often hears from children who are concerned that their parents may not have an estate plan in place. The children are worried that if something happens to one or both parents, then the children will not be equipped to assist their parents, and many times the children have no idea where the parents stand financially. Understandably, these subjects may be hard for children to discuss with their parents. The children do not want to appear greedy, and the parents may fear loss of control or independence. The discussion foreshadows a role reversal between parents and children, and therefore the conversation can carry heavy emotional weight. Dysfunctional families face additional challenges when trying to assist senior family members. The upcoming summer months may present an opportunity for parents and children to visit and thus can be an ideal time to approach this issue.
How can you approach your parents about these issues?
· Get Your Own House in Order. First, you should get your own house in order; make sure that you have executed your own will, durable power of attorney, and advance medical directive. After you learn about these tools, then you should be able to approach your parents by referring to your work with an elder law attorney and what you found out.
· Approaching Your Parents. Then ask your parents if they have done the same planning. The goal is to balance safety with independence, and to not wait until an emergency strikes to start planning. Don't first ask them if they have done a will; this approach can reinforce any impression of greediness on your part, and it can scare away those parents who don't want to think about their own mortality. Focus instead on the durable power of attorney and advance medical directive; ask your parents who can make financial and medical decisions for them if they cannot make them for themselves. Many parents may assume the worst - that you are asking because you plan to put them in a nursing home and wrest control of their finances. To avoid this reaction, you can give the example of a temporary disability that may require someone to help pay the bills or make medical decisions. If your parents already have a plan in place, then see if they will let you know where they keep their documents.
· Your Parents Attorney. If you can, ask to review their documents and get the name of their attorney. The attorney may not be able to talk with you at that point in time, but you will know where to turn in case of an emergency. If your parents do not have an estate plan in place, then you should suggest that they make an appointment with an elder law attorney. Your parents may let you schedule an appointment for them, but you need to be aware that the parents, not the children, will be the clients of the attorney.
· Location of Important Documents. You will also want to know where your parents keep other important documents and things like safe deposit box keys, birth certificates, passports, deeds, insurance policies, investment and bank statements, tax returns, Social Security numbers, and medical insurance cards and information. If your parents do not want to share this information with you, then ask them to prepare a list and let you know where the list can be found in case of an emergency.
· Financial Assessment. You should assess your parents' current financial situation to see whether your parents have sufficient income and resources to meet their needs.
· Long Term Care Insurance. You may want to consider purchasing long-term care insurance for your parents if it is affordable and they can qualify. If your parents will not discuss these issues with you, then you should ask a trusted friend of your parents to talk with them to encourage a family dialogue.
Begley & Bookbinder, P.C. can assist families with their estate and long-term care planning needs. If plans need to be made or if existing plans need to be changed, the time to accomplish these objectives is prior to an emergency, while the parents still have the capacity to get their affairs in order.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.
Thank you for reading our newsletter! God Bless America USA #1
Our new law blogs:
NJLaws' Newsletter Blog-http://njlaws1.blogspot.com/
NJ Criminal Law Blog - http://njcriminallaw.blogspot.com/
NJ Traffic Law & Municipal Court Blog - http://traffic-law.blogspot.com/
NJ Personal Injury & Civil Law Blog- http://njlawspersonalinjury.blogspot.com/
NJ Elder Law Blog -http://elder-law.blogspot.com/
NJ Drug Law Blog - http://drugarrest.blogspot.com/
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer:
All materials Copyright 2007. 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
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Kenneth Vercammen, Esq
August 15, 2007
--------------------------------------------------------------------------------
In This Issue
_______________
1. Alzheimer's Lesser Known Devastation - Is Your Family Poised to avoid it?
2. Elder Law 2007 Seminar materials available
3. Suppression reversed where inconsistent stories by driver and passenger. State v. Baum
4. If arrestee transported to police station, full search permitted. State v. Daniels
5. How to approach your parents about their Estate Plan.
--------------------------------------------------------------------------------
Links
Main Website with 500 + articles and 1,000 + links
(732) 572-0500
Greetings Kenneth Vercammen,
1. Alzheimer's Lesser Known Devastation - Is Your Family Poised to avoid it?
By: Dana E. Bookbinder, Esquire
With the incidence of Alzheimer's disease growing at an alarming rate, no one can afford to postpone long term care planning. The June 18, 2007, issue of Newsweek as well as the June edition of AARP Bulletin both report that Alzheimer's currently afflicts over 5 million Americans, and the numbers are expected to rise dramatically, especially as millions of baby boomers are reaching their 60s. According to the recent AARP Bulletin, one in eight people 65 and older currently has Alzheimer's, and half of those 85 and over are afflicted with it. While scientists search for drugs to prevent and remove deposits of plaque in the brain and Congress considers legislation to double funding for Alzheimer's research, families must work to protect themselves.
Alzheimer's takes a tremendous emotional, physical, and financial toll on families who must contend with it. The disease can last many years, and its course is unsteady and varies with each case. Caring for an Alzheimer's victim is also a round-the-clock job. Our office has worked with many individuals caring for a relative prone to wandering at any time of the day or night. The caregiver must tend to both the physical needs of the Alzheimer's patient and his or her safety. Many caregivers intend to keep their loved one at home, but once the disease has substantially progressed and the afflicted individual exhibits erratic behavior and physical problems, a long-term care facility becomes the only viable option. Otherwise, the burdens of providing care eventually would cause the caregiver's own health to diminish.
Because an individual with Alzheimer's eventually does not recognize his or her closest relatives and may even be subject to bouts of yelling or violent behavior, the disease puts enormous strains on family relations. Relationships between siblings are strained as well as relationships between parents and their children. Having worked with families who are contending with Alzheimer's disease for many years, our firm has assisted in many situations where one son or daughter is shouldering the burden of caring for an elderly parent while having to address criticisms by other siblings who do not appreciate the severity of their parent's condition. Sibling relationships often deteriorate when it becomes necessary to hire care providers outside the family. Today, nursing homes charge over $8,000 per month in our area and even home care runs a few thousand dollars a month. Often, the siblings who are not providing care wish to avoid these expenses to preserve a potential inheritance. Contrary to popular misconception, Medicare only covers extremely limited long-term care expenses. Even a home health aide can cost over $20 an hour. Siblings who are not the primary caretakers are best advised to witness the everyday limitations of their parent first-hand and to support their sibling who is the primary caretaker by providing short term respite care or help with errands.
According to the recent Newsweek article, the number of Alzheimer's cases is expected to more than double by the year 2050. In light of this chilling prediction, all individuals must have their estate planning documents in order. These include a Will, Advanced Directive for Health Care, and General Durable Power of Attorney. It is equally critical that family members communicate with one another to discuss health care wishes as well as financial issues and whether long-term care insurance policies are in place. When interviewed by Newsweek, Mark Shalloway, president of the National Academy of Elder Law Attorneys, explained the necessity of a General Durable Power of Attorney by stating that even after a catastrophic illness occurs, routine financial and legal decisions must continue to be made with banks, doctors, etc. For those who are concerned that entrusting others with their financial affairs is risky, the law requires agents under powers of attorney to act in good faith. Otherwise, they may be subject to court proceedings.
Families who are engaging in asset protection planning already know that Medicare cannot be counted on for long term care expenses. They understand that affording assisted living or nursing facilities, home care, or continuing care retirement facilities requires advanced planning. Though scientists are now hopeful that the next generation of Alzheimer's drugs currently under testing will be more effective than previous treatments, our current health care system demands that each of us takes responsibility for our own care in our later years. Proactive legal planning brings the astronomical cost of this care within reach for families of diverse financial means. For those who seek counsel, family finances and relationships are much healthier.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, Martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law
2. Elder Law 2007 Seminar materials available
Changes in the law and Expanding an Elder Law Practice. American Bar Association Annual Meeting Program - San Francisco
Materials available for Free! Send email to kenvnjlaws@verizon.net
3. Suppression reversed where inconsistent stories by driver and passenger. State v. Baum __ N.J. Super. __ 14-2-7526 5/30/07
In this appeal, the court reversed the trial court's suppression of marijuana and cocaine seize in the course of a traffic stop for driving a vehicle with dark tinted windows and without an inspection sticker. The court approved the twenty-six minute roadside investigation that was expanded beyond the initial reason for the stop when the nervous driver failed to produce a license or insurance card and did not know who owned the car. In addition, the driver and passenger told inconsistent stories regarding whether they had traveled to New York by bus or in the car in which they had been stopped.
4. If arrestee transported to police station, full search permitted. State v. Daniels __ N.J. Super. __ 14-2-7525 5/31/07
Resolving an issue left open in State v. Dangerield, 171 N.J. 446, 463-64 (2002), the court held that when police effectuate a lawful arrest, even for a minor Penal Code offense, and decide to transport the arrested person to headquarters for processing, a full search of the arrestee is permitted; the police are not limited to a Terry type pat down. Here, defendant was arrested for the petty disorderly persons offense of defiant trespass. As a result, the search of his person prior to being placed in the police car, revealing cocaine, was proper.
5. How to approach your parents about their Estate Plan.
By: Thomas D. Begley, Jr., Esquire
Begley & Bookbinder often hears from children who are concerned that their parents may not have an estate plan in place. The children are worried that if something happens to one or both parents, then the children will not be equipped to assist their parents, and many times the children have no idea where the parents stand financially. Understandably, these subjects may be hard for children to discuss with their parents. The children do not want to appear greedy, and the parents may fear loss of control or independence. The discussion foreshadows a role reversal between parents and children, and therefore the conversation can carry heavy emotional weight. Dysfunctional families face additional challenges when trying to assist senior family members. The upcoming summer months may present an opportunity for parents and children to visit and thus can be an ideal time to approach this issue.
How can you approach your parents about these issues?
· Get Your Own House in Order. First, you should get your own house in order; make sure that you have executed your own will, durable power of attorney, and advance medical directive. After you learn about these tools, then you should be able to approach your parents by referring to your work with an elder law attorney and what you found out.
· Approaching Your Parents. Then ask your parents if they have done the same planning. The goal is to balance safety with independence, and to not wait until an emergency strikes to start planning. Don't first ask them if they have done a will; this approach can reinforce any impression of greediness on your part, and it can scare away those parents who don't want to think about their own mortality. Focus instead on the durable power of attorney and advance medical directive; ask your parents who can make financial and medical decisions for them if they cannot make them for themselves. Many parents may assume the worst - that you are asking because you plan to put them in a nursing home and wrest control of their finances. To avoid this reaction, you can give the example of a temporary disability that may require someone to help pay the bills or make medical decisions. If your parents already have a plan in place, then see if they will let you know where they keep their documents.
· Your Parents Attorney. If you can, ask to review their documents and get the name of their attorney. The attorney may not be able to talk with you at that point in time, but you will know where to turn in case of an emergency. If your parents do not have an estate plan in place, then you should suggest that they make an appointment with an elder law attorney. Your parents may let you schedule an appointment for them, but you need to be aware that the parents, not the children, will be the clients of the attorney.
· Location of Important Documents. You will also want to know where your parents keep other important documents and things like safe deposit box keys, birth certificates, passports, deeds, insurance policies, investment and bank statements, tax returns, Social Security numbers, and medical insurance cards and information. If your parents do not want to share this information with you, then ask them to prepare a list and let you know where the list can be found in case of an emergency.
· Financial Assessment. You should assess your parents' current financial situation to see whether your parents have sufficient income and resources to meet their needs.
· Long Term Care Insurance. You may want to consider purchasing long-term care insurance for your parents if it is affordable and they can qualify. If your parents will not discuss these issues with you, then you should ask a trusted friend of your parents to talk with them to encourage a family dialogue.
Begley & Bookbinder, P.C. can assist families with their estate and long-term care planning needs. If plans need to be made or if existing plans need to be changed, the time to accomplish these objectives is prior to an emergency, while the parents still have the capacity to get their affairs in order.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.
Thank you for reading our newsletter! God Bless America USA #1
Our new law blogs:
NJLaws' Newsletter Blog-http://njlaws1.blogspot.com/
NJ Criminal Law Blog - http://njcriminallaw.blogspot.com/
NJ Traffic Law & Municipal Court Blog - http://traffic-law.blogspot.com/
NJ Personal Injury & Civil Law Blog- http://njlawspersonalinjury.blogspot.com/
NJ Elder Law Blog -http://elder-law.blogspot.com/
NJ Drug Law Blog - http://drugarrest.blogspot.com/
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer:
All materials Copyright 2007. 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
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Monday, August 13, 2007
NJ Laws Newsletter E242 April 19, 2007
In this issue:
1 Kenneth Vercammen, Edison Attorney was selected a 2007 NJ Super Lawyer
2. Estate Recovery in Medicaid
3. Need for to reapply Miranda warnings depends on circumstances
4. Motion to suppress granted where stop based on only 911 call that was vague
1. Kenneth Vercammen, Edison Attorney was selected a 2007 NJ Super Lawyer in the Criminal Law- DWI section for the second year in a row. Of over 79,00 attorneys in New Jersey, only three were selected as Super Lawyers in the Criminal Law- DWI category.
HOW SUPER LAWYERS ARE SELECTED
Law & Politics performs the polling, research and selection of Super Lawyers in a process designed to identify lawyers who have attained a high degree of peer recognition and professional achievement. Super Lawyers is a comprehensive and diverse listing of outstanding attorneys, representing a wide range of practice areas, firm sizes and geographic locations. Only 5 percent of the lawyers in each state or region are named Super Lawyers
http://www.njlaws.com/superlawyer.htm
2. ESTATE RECOVERY IN MEDICAID
By: Thomas. D. Begley, Jr., Esquire
A state is entitled to recover for Medicaid payments correctly paid on behalf of the individual by use or real or personal property liens and recovery from decedents’ estates. 42 U.S.C. § 1396p(b)(1)(B); HCFA Transmittal 63; N.J.S.A. 30:4D-7.2 et seq.; N.J.A.C. 10:49-1 et seq. The state is required to seek reimbursement from an individual’s estate for the cost of nursing facility services. 42 U.S.C. § 1396p(b)(1)(B). However, no recovery may be made until after the death of the recipient’s surviving spouse, and only when there are no surviving children who are under age 21 or blind or permanently disabled.
A. Definition of Estate. New Jersey seeks recovery from estates of deceased individuals. While federal law only requires that states recover from the probate estate of the deceased Medicaid recipient, New Jersey has elected to expand the definition of an estate as follows:
“Estate includes all real and personal property and other assets included in the recipient’s estate as defined at N.J.S. 3B:1-1, as well as any other real or personal property and other assets in which the recipient had any legal title or interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the recipient through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement.”
B. Age 55. With respect to an institutional level of care, estate recovery applies to all Medicaid payments made or services received after an individual is 55 years of age or older. N.J.A.C. 10:49-14.1(c). Under federal and state law, in the case of a recipient who became deceased on or after April 1, 1995 for whom a Medicaid payment was made on or after October 1, 1993, a lien may be filed against, and recovery sought, from the estate of a deceased recipient for assistance correctly paid or to be paid on his behalf for all services received when he was 55 years of age or older. 42 U.S.C. § 1396p(b); N.J.A.C. 10:49-14.1(c).
C. De minimus Amounts. Under N.J.A.C. 30:4D-7.2a, recovery cannot be made against the estate of a deceased recipient if the amount sought is less than $500 or the gross estate of the deceased recipient is less than $3,000.
D. Surviving Spouse or Child under 21 or Blind or Disabled. No recovery shall be made if there is a surviving spouse or a surviving child who is under the age of 21 or is blind or permanently and totally disabled, except for assistance incorrectly or illegally paid or for third party liability recovery. These exceptions to estate recovery are also incorporated in N.J.A.C. 10:49-14.1(a).
E. PAAD. No estate recovery shall be made under the Pharmaceutical Assistance to the Aged and Disabled program (PAAD), unless the assistance was incorrectly or illegally paid.
F. Life Estates/Trusts.
• Life Estate. Life estates that expire upon the Medicaid beneficiary’s death are exempt from estate recovery. N.J.A.C. 10:49-14.1(n)(1).
• Inter Vivos Trust. An inter vivos trust established by a third party for the benefit of a deceased Medicaid recipient is not subject to estate recovery provided that the Medicaid recipient could not compel distributions from the trust and the trust contains no assets in which the Medicaid beneficiary held any interest within either five (5) years prior to applying for Medicaid benefits or five (5) years prior to the Medicaid recipient’s death. N.J.A.C. 10:49-14.1(n)(2).
• Testamentary Trust. Testamentary trusts are exempt from estate recovery provided that the Medicaid recipient could not compel distribution and the trust contains no assets in which the Medicaid recipient held an interest within either five (5) years prior to applying for Medicaid benefits or five (5) years prior to the recipient’s death. Assets of the community spouse which formed a part of the Community Spouse Resource Allowance shall not be considered assets of the Medicaid recipient. Any assets of the community spouse other than those that formed part of the CSRA allowance are considered assets of the Medicaid recipient if acquired from the Medicaid recipient with five (5) years prior to the date of application for the Medicaid benefits or five (5) years prior to the date of the death of the Medicaid beneficiary. It is believed that the reference to assets acquired from the Medicaid recipient means assets acquired from the Medicaid recipient’s spouse.
G. Tracing. N.J.A.C. 10:49-14.1(l) makes clear that estate recovery may be sought from trusts and annuities, even if established by a third party. This applies to living trusts and testamentary trusts if the assets in the trust belonged to the Medicaid beneficiary as of five years prior to the beneficiary’s death. N.J.A.C. 10:49-14.1(n). This provision may be invalid since it appears to be more restrictive than either the federal or state statute, which limits recovery to “living trusts.” However, in DeMartino v. Division of Medical Assistance and Health Services, 373 N.J. Super. 210 (App. Div. 2004), the court held that such a trust was subject to Medicaid estate recovery.
H. Spouse. New Jersey’s current regulations exempt the estate of the spouse from recovery. N.J.A.C. 10:49-14.1(n).
An issue arises as to whether a state may recover from the estate of a spouse of a deceased Medicaid recipient. In the case of Wisconsin v. Estate of Budney, 197 NW 2d 245 (Wis. Ct. App. 1995), the court held that the Wisconsin statute authorizing recovery from the spouse of a deceased Medicaid recipient is invalid. In a California case, Demille v. Bleshe, 1995 WL 23636 (N.D. Cal. 1995), the court held that the state was free to impose liens on property of the deceased Medicaid recipient, after the recipient is dead, and that those liens become payable upon the death of the surviving spouse or upon sale of the property.
New Jersey has a policy of not forcing a sale while any family member is still living in the house. This is documented in N.J.A.C. 10:49-14.1(j). Recoveries will not be pursued against property held by bona fide purchasers. N.J.A.C. 10:49-14.1(k).
There may be an issue as to whether Medicaid can recover for payments made on behalf of the deceased Medicaid recipient prior to December 23, 1995, which is the effective date of the New Jersey statute.
New Jersey will exempt assets from estate recovery on a hardship basis only if the asset is the sole income-producing asset of the survivor, and recovery by the state would result in the survivor becoming a beneficiary of public benefits himself or herself. Thus, New Jersey’s tentative definition of “hardship” is very rigid. There is also a rebuttable presumption in New Jersey that there is no hardship if Medicaid planning was effected. N.J.A.C. 10:49-14.1(h). The representative of the estate of the Medicaid recipient has 20 days from the date of receipt of the notice of the State’s lien to file a request for a waiver or compromise of the claim.
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.
3. Need for to reapply Miranda warnings depends on circumstances State v. Dispoto __ NJ ___ (A-103-05) 1-18-07
The Court rejected the Appellate Division’s bright-line approach that failure to re-administer Miranda warnings at the time of arrest required suppression of Dispoto’s post-arrest incriminating statement, notwithstanding the pre-custodial warning about an hour earlier. The Court retains the more measured and traditional totality-of-the-circumstances assessment. Thus, where pre-custodial warnings have been given to a defendant as part of a continuing pattern of interactions between the defendant and the police, and during that continuing sequence of events nothing of an intervening nature occurs that would dilute the effectiveness of the warning, there would appear to be no need to require another warning. Such determinations are better suited to fact-based assessments rather
than bright-line pronouncements.
Because there was insufficient evidence to support the issuance of the underlying domestic violence search warrant, the criminal search warrant was invalid as fruit of the poisonous tree. While this holding renders moot the Appellate Division’s finding that failure to re-administer Miranda warnings at the time of arrest required suppression of Dispoto’s post-arrest incriminating statements, the Court adds in respect of the issue of the Miranda warnings only that no bright line or per se rule governs whether re-administration is required following a pre- custodial Miranda warning.
4. Motion to suppress granted where stop based on only 911 call that was vague. State v. Phelps Appellate Division, A-3755-05T2, November 14, 2006, not approved for publication.
Law Division order that granted the defendant’s motion to suppress evidence that was seized after his motor vehicle was stopped affirmed; a man called 911 and reported that five “dark-skinned black males” who were members of the Bloods street gang were armed and chasing him in a “blue car”; police officers responded to the scene, stopped a “bluish-gray” Pontiac Bonneville that contained only the defendant, who is black, and a Hispanic female passenger, and recovered a handgun and crack cocaine; although other occupants of the defendant’s vehicle could have fled the scene before the officers arrived, the number and gender of the occupants that the officers saw did not match the 911 caller’s description, and the caller had identified the vehicle only by a nondescript color; the stop of the defendant’s vehicle was not justified because the information that the 911 caller provided did not correspond to the officers’ observations to the extent that the officers and the court could be certain that the defendant’s vehicle was the same vehicle that the caller had identified; instead, the caller’s description of the vehicle was “vague.” Source: Facts-on-Call Order No. 20501.
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. 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
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Registration info or to purchase book & audiotape
------------------------------------------------------------------------
Kenneth Vercammen
2053 Woodbridge Ave.
2053 Woodbridge Ave.
Edison, NJ 088`7
Phone: 732-572-0500
Fax: 732-572-0500
Web site: http://www.njlaws.com/
E-mail: kenvnjlaws@verizon.net
1 Kenneth Vercammen, Edison Attorney was selected a 2007 NJ Super Lawyer
2. Estate Recovery in Medicaid
3. Need for to reapply Miranda warnings depends on circumstances
4. Motion to suppress granted where stop based on only 911 call that was vague
1. Kenneth Vercammen, Edison Attorney was selected a 2007 NJ Super Lawyer in the Criminal Law- DWI section for the second year in a row. Of over 79,00 attorneys in New Jersey, only three were selected as Super Lawyers in the Criminal Law- DWI category.
HOW SUPER LAWYERS ARE SELECTED
Law & Politics performs the polling, research and selection of Super Lawyers in a process designed to identify lawyers who have attained a high degree of peer recognition and professional achievement. Super Lawyers is a comprehensive and diverse listing of outstanding attorneys, representing a wide range of practice areas, firm sizes and geographic locations. Only 5 percent of the lawyers in each state or region are named Super Lawyers
http://www.njlaws.com/superlawyer.htm
2. ESTATE RECOVERY IN MEDICAID
By: Thomas. D. Begley, Jr., Esquire
A state is entitled to recover for Medicaid payments correctly paid on behalf of the individual by use or real or personal property liens and recovery from decedents’ estates. 42 U.S.C. § 1396p(b)(1)(B); HCFA Transmittal 63; N.J.S.A. 30:4D-7.2 et seq.; N.J.A.C. 10:49-1 et seq. The state is required to seek reimbursement from an individual’s estate for the cost of nursing facility services. 42 U.S.C. § 1396p(b)(1)(B). However, no recovery may be made until after the death of the recipient’s surviving spouse, and only when there are no surviving children who are under age 21 or blind or permanently disabled.
A. Definition of Estate. New Jersey seeks recovery from estates of deceased individuals. While federal law only requires that states recover from the probate estate of the deceased Medicaid recipient, New Jersey has elected to expand the definition of an estate as follows:
“Estate includes all real and personal property and other assets included in the recipient’s estate as defined at N.J.S. 3B:1-1, as well as any other real or personal property and other assets in which the recipient had any legal title or interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the recipient through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement.”
B. Age 55. With respect to an institutional level of care, estate recovery applies to all Medicaid payments made or services received after an individual is 55 years of age or older. N.J.A.C. 10:49-14.1(c). Under federal and state law, in the case of a recipient who became deceased on or after April 1, 1995 for whom a Medicaid payment was made on or after October 1, 1993, a lien may be filed against, and recovery sought, from the estate of a deceased recipient for assistance correctly paid or to be paid on his behalf for all services received when he was 55 years of age or older. 42 U.S.C. § 1396p(b); N.J.A.C. 10:49-14.1(c).
C. De minimus Amounts. Under N.J.A.C. 30:4D-7.2a, recovery cannot be made against the estate of a deceased recipient if the amount sought is less than $500 or the gross estate of the deceased recipient is less than $3,000.
D. Surviving Spouse or Child under 21 or Blind or Disabled. No recovery shall be made if there is a surviving spouse or a surviving child who is under the age of 21 or is blind or permanently and totally disabled, except for assistance incorrectly or illegally paid or for third party liability recovery. These exceptions to estate recovery are also incorporated in N.J.A.C. 10:49-14.1(a).
E. PAAD. No estate recovery shall be made under the Pharmaceutical Assistance to the Aged and Disabled program (PAAD), unless the assistance was incorrectly or illegally paid.
F. Life Estates/Trusts.
• Life Estate. Life estates that expire upon the Medicaid beneficiary’s death are exempt from estate recovery. N.J.A.C. 10:49-14.1(n)(1).
• Inter Vivos Trust. An inter vivos trust established by a third party for the benefit of a deceased Medicaid recipient is not subject to estate recovery provided that the Medicaid recipient could not compel distributions from the trust and the trust contains no assets in which the Medicaid beneficiary held any interest within either five (5) years prior to applying for Medicaid benefits or five (5) years prior to the Medicaid recipient’s death. N.J.A.C. 10:49-14.1(n)(2).
• Testamentary Trust. Testamentary trusts are exempt from estate recovery provided that the Medicaid recipient could not compel distribution and the trust contains no assets in which the Medicaid recipient held an interest within either five (5) years prior to applying for Medicaid benefits or five (5) years prior to the recipient’s death. Assets of the community spouse which formed a part of the Community Spouse Resource Allowance shall not be considered assets of the Medicaid recipient. Any assets of the community spouse other than those that formed part of the CSRA allowance are considered assets of the Medicaid recipient if acquired from the Medicaid recipient with five (5) years prior to the date of application for the Medicaid benefits or five (5) years prior to the date of the death of the Medicaid beneficiary. It is believed that the reference to assets acquired from the Medicaid recipient means assets acquired from the Medicaid recipient’s spouse.
G. Tracing. N.J.A.C. 10:49-14.1(l) makes clear that estate recovery may be sought from trusts and annuities, even if established by a third party. This applies to living trusts and testamentary trusts if the assets in the trust belonged to the Medicaid beneficiary as of five years prior to the beneficiary’s death. N.J.A.C. 10:49-14.1(n). This provision may be invalid since it appears to be more restrictive than either the federal or state statute, which limits recovery to “living trusts.” However, in DeMartino v. Division of Medical Assistance and Health Services, 373 N.J. Super. 210 (App. Div. 2004), the court held that such a trust was subject to Medicaid estate recovery.
H. Spouse. New Jersey’s current regulations exempt the estate of the spouse from recovery. N.J.A.C. 10:49-14.1(n).
An issue arises as to whether a state may recover from the estate of a spouse of a deceased Medicaid recipient. In the case of Wisconsin v. Estate of Budney, 197 NW 2d 245 (Wis. Ct. App. 1995), the court held that the Wisconsin statute authorizing recovery from the spouse of a deceased Medicaid recipient is invalid. In a California case, Demille v. Bleshe, 1995 WL 23636 (N.D. Cal. 1995), the court held that the state was free to impose liens on property of the deceased Medicaid recipient, after the recipient is dead, and that those liens become payable upon the death of the surviving spouse or upon sale of the property.
New Jersey has a policy of not forcing a sale while any family member is still living in the house. This is documented in N.J.A.C. 10:49-14.1(j). Recoveries will not be pursued against property held by bona fide purchasers. N.J.A.C. 10:49-14.1(k).
There may be an issue as to whether Medicaid can recover for payments made on behalf of the deceased Medicaid recipient prior to December 23, 1995, which is the effective date of the New Jersey statute.
New Jersey will exempt assets from estate recovery on a hardship basis only if the asset is the sole income-producing asset of the survivor, and recovery by the state would result in the survivor becoming a beneficiary of public benefits himself or herself. Thus, New Jersey’s tentative definition of “hardship” is very rigid. There is also a rebuttable presumption in New Jersey that there is no hardship if Medicaid planning was effected. N.J.A.C. 10:49-14.1(h). The representative of the estate of the Medicaid recipient has 20 days from the date of receipt of the notice of the State’s lien to file a request for a waiver or compromise of the claim.
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.
3. Need for to reapply Miranda warnings depends on circumstances State v. Dispoto __ NJ ___ (A-103-05) 1-18-07
The Court rejected the Appellate Division’s bright-line approach that failure to re-administer Miranda warnings at the time of arrest required suppression of Dispoto’s post-arrest incriminating statement, notwithstanding the pre-custodial warning about an hour earlier. The Court retains the more measured and traditional totality-of-the-circumstances assessment. Thus, where pre-custodial warnings have been given to a defendant as part of a continuing pattern of interactions between the defendant and the police, and during that continuing sequence of events nothing of an intervening nature occurs that would dilute the effectiveness of the warning, there would appear to be no need to require another warning. Such determinations are better suited to fact-based assessments rather
than bright-line pronouncements.
Because there was insufficient evidence to support the issuance of the underlying domestic violence search warrant, the criminal search warrant was invalid as fruit of the poisonous tree. While this holding renders moot the Appellate Division’s finding that failure to re-administer Miranda warnings at the time of arrest required suppression of Dispoto’s post-arrest incriminating statements, the Court adds in respect of the issue of the Miranda warnings only that no bright line or per se rule governs whether re-administration is required following a pre- custodial Miranda warning.
4. Motion to suppress granted where stop based on only 911 call that was vague. State v. Phelps Appellate Division, A-3755-05T2, November 14, 2006, not approved for publication.
Law Division order that granted the defendant’s motion to suppress evidence that was seized after his motor vehicle was stopped affirmed; a man called 911 and reported that five “dark-skinned black males” who were members of the Bloods street gang were armed and chasing him in a “blue car”; police officers responded to the scene, stopped a “bluish-gray” Pontiac Bonneville that contained only the defendant, who is black, and a Hispanic female passenger, and recovered a handgun and crack cocaine; although other occupants of the defendant’s vehicle could have fled the scene before the officers arrived, the number and gender of the occupants that the officers saw did not match the 911 caller’s description, and the caller had identified the vehicle only by a nondescript color; the stop of the defendant’s vehicle was not justified because the information that the 911 caller provided did not correspond to the officers’ observations to the extent that the officers and the court could be certain that the defendant’s vehicle was the same vehicle that the caller had identified; instead, the caller’s description of the vehicle was “vague.” Source: Facts-on-Call Order No. 20501.
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. 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
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Registration info or to purchase book & audiotape
------------------------------------------------------------------------
Kenneth Vercammen
2053 Woodbridge Ave.
2053 Woodbridge Ave.
Edison, NJ 088`7
Phone: 732-572-0500
Fax: 732-572-0500
Web site: http://www.njlaws.com/
E-mail: kenvnjlaws@verizon.net
Thursday, August 02, 2007
NJ Laws Newsletter E252 August 2, 2007
NJ Laws Email Newsletter E252
August 2, 2007
--------------------------------------------------------------------------------
In This Issue
_______________
1. What to do when you receive a power of attorney.
2. Police officer can testify on speed limit on street.
3. If warrant defective, all other evidence suppressed.
4. Suppression reversed where inconsistent stories by driver and passenger.
5. ABA Annual Meeting and Voting for House of Delegates in San Francisco.
6. Law Audiotapes Available.
--------------------------------------------------------------------------------
1. What to do When You Receive a Power of Attorney
A Power of Attorney is an appointment of another person as one's agent. A Power of Attorney creates a principal-agent relationship. The grantor of the Power of Attorney is the principal. The person to whom the Power of Attorney is given is the agent. We give the title "attorney-in-fact" to the agent who is given a Power of Attorney.
As attorney-in-fact, you have all of the powers which are set out in the attached Power of Attorney. If you ever have any questions regarding the powers under this Power of Attorney, please examine that document first.
Whenever you exercise any one or more of your powers under this Power of Attorney by signing a document, you should always sign your name as follows: " [your name] , as attorney-in-fact for [name of other person] " Naturally, you need not use the quotation marks.
As the attorney-in-fact, you do not become the owner of their property. The Power of Attorney merely grants to you as their attorney-in-fact the powers enumerated in the Power of Attorney, however, those powers may include the power to deal with the property of the principal. Because you have been entrusted with these powers by your principal, you must take great care to exercise those powers for the benefit of your principal only and not for your own benefit.
If anyone ever questions you when you exercise your powers under the Power of Attorney, please be sure to show such person a copy of your Power of Attorney. I do not recommend that you not give them the original signed Power of Attorney, however, you may give them a photo-copy of it. If you record the Power of Attorney, you may, of course, secure certified copies of it from the County Clerk.
2. Police officer can testify on speed limit on street. State v. Morgan 393 N.J. Super. 411 (App. Div. 2007)
The court considered whether the uncontroverted testimony of a law enforcement officer as to the lawful speed limit in an area is sufficient evidence upon which defendant may be found guilty of "speeding" in violation of N.J.S.A. 39:4-98. The court concluded that such testimony, if admissible and believed by the judge, is sufficient proof of the lawful speed and, thus, reaffirmed its holding in State v. Craig, 150 N.J. Super. 513 (App. Div. 1977). The court concluded the State need not introduce an enacted ordinance or regulation in order to prove the lawful speed and, thus disapprove the holding in State v. Miller, 59 N.J. Super. 538 (Law Div. 1959).
3. If warrant defective, all other evidence suppressed.State v. Dispoto 189 N.J. 108 (2007)
Because there was insufficient evidence to support the issuance of the underlying domestic violence search warrant, the criminal search warrant was invalid as fruit of the poisonous tree.
The failure to re-administer Miranda warnings at the time of arrest required suppression of Dispoto's post-arrest incriminating statements, the Court adds in respect of the issue of the Miranda warnings only that no bright line or per se rule governs whether re-administration is required following a pre-custodial Miranda warning.
4. Suppression reversed where inconsistent stories by driver and passenger. State v. Baum 393 N.J. Super. 275 (App. Div. 2007)
In this appeal, the court reversed the trial court's suppression of marijuana and cocaine seize in the course of a traffic stop for driving a vehicle with dark tinted windows and without an inspection sticker. The court approved the twenty-six minute roadside investigation that was expanded beyond the initial reason for the stop when the nervous driver failed to produce a license or insurance card and did not know who owned the car. In addition, the driver and passenger told inconsistent stories regarding whether they had traveled to New York by bus or in the car in which they had been stopped.
5. ABA Annual Meeting and Voting for House of Delegates is at San Francisco, Moscone Center West in Exhibit Hall, 1st Floor. Kenneth Vercammen is a Candidate.
Registration hours will be:
Thursday, August 9 8:00 a.m. to 6:00 p.m.
Friday, August 10 8:00 a.m. to 6:00 p.m.
Saturday, August 11 8:00 a.m. to 6:00 p.m.
Sunday, August 12 8:00 a.m. to 6:00 p.m.
Monday, August 13 8:00 a.m. to 5:00 p.m.
Tuesday, August 14 8:00 a.m. to 5:00 p.m.
Kenneth Vercammen is one of the candidates for the ABA House of Delegates. Six Delegates-at-Large are elected at each Annual Meeting to serve a three-year term in the House of Delegates. Any member of the Association is eligible to be a Delegate-at-Large, although of the six elected each year, no two may be accredited to the same state, territory or possession.
All ABA lawyer members who have registered at the Annual Meeting are entitled to vote for Delegates- at-Large. Voting will commence on Thursday, August 9, and continue until 10:00 a.m. on Tuesday, August 14, adjacent to the ABA Registration Desk at The Moscone Center, West Hall, Level One.
Each year over 10,000 members and their families attend the ABA Annual Meeting for six days of programs, meetings, sightseeing, social events and meetings of the ABA's governing and policy-making bodies-the Board of Governors and House of Delegates.
The Sam Smith Award
will be awarded to Jay Foonberg, author of, How to Start and Build a Law Practice at the LPM Section Gathering on Friday, August 9 at the ABA Annual Meeting.
The LPM Section Gathering Reception will be held from 6:00 p.m. - 7:30 p.m. at The City Club of San Francisco, 155 Sansome, Bechtel Room, 10th Floor.
The Sam Smith Award, the highest honor bestowed by the ABA Law Practice Management Section, was established in 1999 on the occasion of the Section's 25th Anniversary. The award recognizes an individual who has demonstrated outstanding lifetime achievement in the field of law practice management.
The reception is free.
6. Law Audiotapes Available
We have numerous audiotapes on legal seminars Kenneth Vercammen either attended or served as a speaker. If you want to listen to any of these tapes, call the law office and make an appointment to pick them up.
CRIMINAL
Handling a Criminal Case
2006 Criminal Law Institute
Leading New Jersey Supreme Court Criminal Case: Update 2006
Technical Aspects of Handling DWI cases
PROBATE/ESTATE
Guide to Surrogate Court & Probate Proceedings
Estate Administration Basics
Estate Planning without Tax Considerations
Estate & Trust Litigation
Estate Planning for Special Situations
NJ Guardianship Practice
Guardianship Basics
Building a "Successful" Elder Law/ Estate Planning Practice
Advocacy For Seniors
Elder Law after OBRA: Revisited & Reevaluated
Building Profitable Trusts & Estates Elder Law Practice MEDICAID
Planning after Medicaid Reform
The Final Medicaid Regulations
Practical Medicaid Planning
CIVIL/PERSONAL INJURY
Defending Damages in Personal Injury Cases
Hot Tips in Torts
100 Days to Trial
Representing the Gay & Lesbian Client: Update 2001
Thank you for reading our newsletter! God Bless America USA #1
Our new law blogs:
NJLaws' Newsletter Blog-http://njlaws1.blogspot.com/
NJ Criminal Law Blog - http://njcriminallaw.blogspot.com/
NJ Traffic Law & Municipal Court Blog - http://traffic-law.blogspot.com/
NJ Personal Injury & Civil Law Blog- http://njlawspersonalinjury.blogspot.com/
NJ Elder Law Blog -http://elder-law.blogspot.com/
NJ Drug Law Blog - http://drugarrest.blogspot.com/
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer:
All materials Copyright 2007. 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
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
August 2, 2007
--------------------------------------------------------------------------------
In This Issue
_______________
1. What to do when you receive a power of attorney.
2. Police officer can testify on speed limit on street.
3. If warrant defective, all other evidence suppressed.
4. Suppression reversed where inconsistent stories by driver and passenger.
5. ABA Annual Meeting and Voting for House of Delegates in San Francisco.
6. Law Audiotapes Available.
--------------------------------------------------------------------------------
1. What to do When You Receive a Power of Attorney
A Power of Attorney is an appointment of another person as one's agent. A Power of Attorney creates a principal-agent relationship. The grantor of the Power of Attorney is the principal. The person to whom the Power of Attorney is given is the agent. We give the title "attorney-in-fact" to the agent who is given a Power of Attorney.
As attorney-in-fact, you have all of the powers which are set out in the attached Power of Attorney. If you ever have any questions regarding the powers under this Power of Attorney, please examine that document first.
Whenever you exercise any one or more of your powers under this Power of Attorney by signing a document, you should always sign your name as follows: " [your name] , as attorney-in-fact for [name of other person] " Naturally, you need not use the quotation marks.
As the attorney-in-fact, you do not become the owner of their property. The Power of Attorney merely grants to you as their attorney-in-fact the powers enumerated in the Power of Attorney, however, those powers may include the power to deal with the property of the principal. Because you have been entrusted with these powers by your principal, you must take great care to exercise those powers for the benefit of your principal only and not for your own benefit.
If anyone ever questions you when you exercise your powers under the Power of Attorney, please be sure to show such person a copy of your Power of Attorney. I do not recommend that you not give them the original signed Power of Attorney, however, you may give them a photo-copy of it. If you record the Power of Attorney, you may, of course, secure certified copies of it from the County Clerk.
2. Police officer can testify on speed limit on street. State v. Morgan 393 N.J. Super. 411 (App. Div. 2007)
The court considered whether the uncontroverted testimony of a law enforcement officer as to the lawful speed limit in an area is sufficient evidence upon which defendant may be found guilty of "speeding" in violation of N.J.S.A. 39:4-98. The court concluded that such testimony, if admissible and believed by the judge, is sufficient proof of the lawful speed and, thus, reaffirmed its holding in State v. Craig, 150 N.J. Super. 513 (App. Div. 1977). The court concluded the State need not introduce an enacted ordinance or regulation in order to prove the lawful speed and, thus disapprove the holding in State v. Miller, 59 N.J. Super. 538 (Law Div. 1959).
3. If warrant defective, all other evidence suppressed.State v. Dispoto 189 N.J. 108 (2007)
Because there was insufficient evidence to support the issuance of the underlying domestic violence search warrant, the criminal search warrant was invalid as fruit of the poisonous tree.
The failure to re-administer Miranda warnings at the time of arrest required suppression of Dispoto's post-arrest incriminating statements, the Court adds in respect of the issue of the Miranda warnings only that no bright line or per se rule governs whether re-administration is required following a pre-custodial Miranda warning.
4. Suppression reversed where inconsistent stories by driver and passenger. State v. Baum 393 N.J. Super. 275 (App. Div. 2007)
In this appeal, the court reversed the trial court's suppression of marijuana and cocaine seize in the course of a traffic stop for driving a vehicle with dark tinted windows and without an inspection sticker. The court approved the twenty-six minute roadside investigation that was expanded beyond the initial reason for the stop when the nervous driver failed to produce a license or insurance card and did not know who owned the car. In addition, the driver and passenger told inconsistent stories regarding whether they had traveled to New York by bus or in the car in which they had been stopped.
5. ABA Annual Meeting and Voting for House of Delegates is at San Francisco, Moscone Center West in Exhibit Hall, 1st Floor. Kenneth Vercammen is a Candidate.
Registration hours will be:
Thursday, August 9 8:00 a.m. to 6:00 p.m.
Friday, August 10 8:00 a.m. to 6:00 p.m.
Saturday, August 11 8:00 a.m. to 6:00 p.m.
Sunday, August 12 8:00 a.m. to 6:00 p.m.
Monday, August 13 8:00 a.m. to 5:00 p.m.
Tuesday, August 14 8:00 a.m. to 5:00 p.m.
Kenneth Vercammen is one of the candidates for the ABA House of Delegates. Six Delegates-at-Large are elected at each Annual Meeting to serve a three-year term in the House of Delegates. Any member of the Association is eligible to be a Delegate-at-Large, although of the six elected each year, no two may be accredited to the same state, territory or possession.
All ABA lawyer members who have registered at the Annual Meeting are entitled to vote for Delegates- at-Large. Voting will commence on Thursday, August 9, and continue until 10:00 a.m. on Tuesday, August 14, adjacent to the ABA Registration Desk at The Moscone Center, West Hall, Level One.
Each year over 10,000 members and their families attend the ABA Annual Meeting for six days of programs, meetings, sightseeing, social events and meetings of the ABA's governing and policy-making bodies-the Board of Governors and House of Delegates.
The Sam Smith Award
will be awarded to Jay Foonberg, author of, How to Start and Build a Law Practice at the LPM Section Gathering on Friday, August 9 at the ABA Annual Meeting.
The LPM Section Gathering Reception will be held from 6:00 p.m. - 7:30 p.m. at The City Club of San Francisco, 155 Sansome, Bechtel Room, 10th Floor.
The Sam Smith Award, the highest honor bestowed by the ABA Law Practice Management Section, was established in 1999 on the occasion of the Section's 25th Anniversary. The award recognizes an individual who has demonstrated outstanding lifetime achievement in the field of law practice management.
The reception is free.
6. Law Audiotapes Available
We have numerous audiotapes on legal seminars Kenneth Vercammen either attended or served as a speaker. If you want to listen to any of these tapes, call the law office and make an appointment to pick them up.
CRIMINAL
Handling a Criminal Case
2006 Criminal Law Institute
Leading New Jersey Supreme Court Criminal Case: Update 2006
Technical Aspects of Handling DWI cases
PROBATE/ESTATE
Guide to Surrogate Court & Probate Proceedings
Estate Administration Basics
Estate Planning without Tax Considerations
Estate & Trust Litigation
Estate Planning for Special Situations
NJ Guardianship Practice
Guardianship Basics
Building a "Successful" Elder Law/ Estate Planning Practice
Advocacy For Seniors
Elder Law after OBRA: Revisited & Reevaluated
Building Profitable Trusts & Estates Elder Law Practice MEDICAID
Planning after Medicaid Reform
The Final Medicaid Regulations
Practical Medicaid Planning
CIVIL/PERSONAL INJURY
Defending Damages in Personal Injury Cases
Hot Tips in Torts
100 Days to Trial
Representing the Gay & Lesbian Client: Update 2001
Thank you for reading our newsletter! God Bless America USA #1
Our new law blogs:
NJLaws' Newsletter Blog-http://njlaws1.blogspot.com/
NJ Criminal Law Blog - http://njcriminallaw.blogspot.com/
NJ Traffic Law & Municipal Court Blog - http://traffic-law.blogspot.com/
NJ Personal Injury & Civil Law Blog- http://njlawspersonalinjury.blogspot.com/
NJ Elder Law Blog -http://elder-law.blogspot.com/
NJ Drug Law Blog - http://drugarrest.blogspot.com/
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer:
All materials Copyright 2007. 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
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Subscribe to:
Posts (Atom)