March 18, 2008
In This Issue
_______________
1. NJ Supreme Court holds Alcotest DWI breath testing machine results admissible
2. Free Wills and Power of Attorney Seminar on Wednesday, April 2, 2008
3. Recent webpages added to www.njlaws.com website.
Greetings ,
1. NJ Supreme Court holds Alcotest DWI breath testing machine results admissible.
The Supreme Court on March 17, 2008 adopted, as modified, the Special Master's reports and recommendations. This landmark decision changes the prosecution of DWI cases in New Jersey forever. Subject to certain conditions, the Court holds that the Alcotest is scientifically reliable and that its results are admissible in drunk driving prosecutions. The Court contemporaneously issued an Order vacating its January 10, 2006, stay of drunk driving prosecutions, appeals, and sentencing, which shall proceed in accordance with the directives set forth therein. This State v Chun has been pending before the court since 2005.
The Supreme Court held:
1. There is sufficient credible evidence to support the continued use of a 2100 to 1 blood/breath alcohol ratio to estimate BAC from a breath sample. The overwhelming evidence demonstrates that use of this ratio tends to underestimate the actual BAC in the vast majority of persons whose breath is tested. Although there may be a small number of individuals who are disadvantaged by a device that uses the 2100 to 1 blood/breath ratio, there is sound scientific support for its continued utilization.
2. The four criteria used by the device to identify a valid breath sample are, with one modification, appropriate. The Court adopts the recommendation that the minimum breath volume requirement should be lowered, for women over sixty years of age only, from 1.5 liters to 1.2 liters and concludes that this modification does not violate equal protection rights. Regardless of minimum breath requirements, no test will be accepted by the machine until the infrared measurement plateaus, which only occurs when a suspect is expelling deep lung air.
Further, while selectively lowering the breath volume requirement will create a different level at which women over sixty may be charged with refusal, the record demonstrates that this group, and only this group, may not have the physiological capability of providing a larger sample. In pending prosecutions, and in future prosecutions based on tests conducted prior to the implementation of the Court's directives, an Alcotest AIR with an insufficient volume error message may not be used as evidence of refusal against women over the age of sixty, unless they also provided another sample of at least 1.5 liters.
3. The Supreme Court in State v. Chun declined to adopt the recommendation that a breath temperature sensor be added to the Alcotest, concluding that this device is both unnecessary and impractical. The record includes scant evidence of a correlation between breath temperature and increased breath alcohol concentration, and no evidence that the theoretical increase in breath alcohol concentration would translate into an inaccurately elevated BAC. Further, any potential effect is ameliorated by the 2100 to 1 blood/breath ratio and by use of truncated, rather than rounded, results, both of which serve to underestimate results. Requiring the addition of a breath temperature sensor would also present an
unreasonable maintenance burden on New Jersey's breath testing program.
4. A tolerance range of an absolute 01 percent (plus or minus 005 percent from the mean) BAC standard, coupled with the use of a like percentage range of tolerance expressed as five percent plus or minus deviation from the mean, is both scientifically appropriate and consistent with the intention of the Legislature in adopting per se limits. The device must therefore be reprogrammed to comply with this standard. In pending prosecutions, and in future prosecutions based on tests conducted prior to the implementation of the Court's directives, in which the AIR reports a BAC obtained using a doubled tolerance range, the reported breath samples must be reviewed to determine whether the results meet this tolerance range. Any AIR that does not include two valid tests within tolerance under this standard cannot be deemed to be sufficiently scientifically reliable to be admissible and shall not be admitted into evidence as proof of a per se violation.
5. The Alcotest's use of the fuel cell "drift" algorithm does not undermine its reliability. Scientific evidence demonstrates that fuel cells begin to age as soon as they are put into service, and will eventually cause the Alcotest's electric chemical test to underestimate BAC. While there may be other means to compensate for this "drift," those means would not, in the end, be any more advantageous to defendants than the minor upward adjustment that the algorithm effects. However, the Court adopts the Special Master's recommendation that the devices be recalibrated semi-annually instead of annually. A semi-annual calibration is consistent with the manufacturer's recommendations and provides a useful safeguard by affording a more regular opportunity to evaluate and replace aging fuel cells
6. The Supreme Court concluded that the Alcotest's "weighted averaging" algorithm is an appropriate calculation that results in a more accurate infrared measurement. It gives greater weight to the breath that, inevitably, includes the deepest air drawn from the lungs. It therefore focuses the analysis on the portion of the breath sample that most accurately represents the subject's BAC
7. The buffer overflow error is a real error in the programming that may cause the Alcotest to report incorrect results in situations involving a third breath sample, which is taken only when the measurements from the first two tests are not in tolerance. The buffer overflow programming error, which must be corrected, affects only the final BAC result reported on the AIR. Because the infrared and electric chemical measurements for all of the test samples are accurately reported on the AIR, the correct BAC value can, and must, be computed from those measurements by applying a corrective formula. In pending prosecutions, and in future prosecutions based on tests conducted prior to the implementation of the Court's directives, the State must review all AIRs that include three tests, perform the calculations to identify the correct BAC in accordance with the corrective formula, and provide that data to the court. The calculations must be made a part of the evidence in any prosecution to facilitate appellate review.
8. The Supreme Court in State v. Chun found adequate support in the record that catastrophic error detection should be re-enabled in the Alcotest. This detection will allow the machine to recognize catastrophic errors and respond by shutting down. There is no basis for the Court to conclude that the lack of catastrophic error detection could result in an inaccurate AIR in any pending prosecution.
9. The Supreme Court found the overall programming style and design of the source code to be acceptable. The exhaustive review undertaken in this case revealed few actual errors or issues within the source code. There being no evidence in the record that any other asserted shortcomings are more than stylistic or theoretical challenges, the Court declines to require any specific programming standards at this time.
10. In future revisions to the Alcotest software, The Supreme Court ruled the State must: have the Alcotest software locked so that only the manufacturer can make revisions to the source code; have the software revised so that the Alcotest identifies and prints the software version that it is utilizing on each AIR; and give detailed notice consistent with due process to the public and the New Jersey State Bar Association of any future revisions.
11. The Supreme Court ruled Draeger must make Alcotest training, comparable to that provided to the State, available to licensed New Jersey attorneys and their experts at reasonable times and locations within New Jersey and at a reasonable cost.
12. The Supreme Court in State v. Chun ruled the twelve foundational documents identified by the Special Master must be provided during discovery in all matters. The operator of the device shall be available to testify and shall produce evidence of his qualifications to operate the device. The following foundational documents, evidencing the good working order of the machine, shall be admitted into evidence in prosecutions based on Alcotest breath testing results: the most recent calibration report, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration; the most recent new standard solution report prior to a defendant's test; and the certificate of analysis of the 10 simulator solution used in a defendant's control tests. These foundational documents are not "testimonial," as defined by the United States Supreme Court in Crawford v. Washington and its progeny. In so holding, the Court aligns itself with the majority of other courts, which have found that such documents are business records, which do not implicate the Confrontation Clause.
13. The Supreme Court ruled the AIR itself, a "statement" of a machine, is not testimonial under Crawford because it does not implicate Crawford's core concerns -- it is not a report of a past event, givenin response to police interrogation, with the purpose of establishing evidence that a defendant committed an offense. Although the AIR is not testimonial evidence, the Court nevertheless mandates various safeguards to protect a defendant's due process rights: the opportunity to cross-examine the operator of the Alcotest, the routine production of all foundational documents in discovery, and the admission of the core foundational documents into evidence at trial.
The full 130 page opinion will be available on website
www.njlaws.com/statevchun.htm
2. Free Wills and Power of Attorney Seminar on Wednesday, April 2, 2008.
Wills & Power of Attorney Program
Learn about documents to save your family money
WHERE: Heritage at Clara Barton, 1015 Amboy Ave. Edison
WHEN: Wednesday, April 2, 2008 8 - 9 P.M.
SPEAKER: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
Sponsor: Metuchen- Edison Women's Club
NJ State Federal of Women's Clubs, Shore District
Co-sponsored by Middlesex County Estate Planning
Council
Cost: Free, open to the public
- So you don't have a Will.
You won't live forever and you can't take it with you.
What should you do?
Main Topics:
1. Wills and the changes to the NJ Probate Law
2. Power of Attorney
3. Living Will
4. Administering the Estate/ Probate/Surrogate
5. Question and Answer
COMPLIMENTARY MATERIAL: Brochures on Wills,
"Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors,
and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute
your property and avoid many rigid provisions of state
law. For more information on Elder law, visit the
Website www.njlaws.com.
You can also subscribe to the free email Elder Law
newsletter by visiting the website, or sending an email
to Kenv@njlaws.com.
Call for information on Metuchen- Edison Women's Club
contactChristine Mullen 732-549-7173
About the Speaker: Kenneth Vercammen is an Elder Law
and Litigation Attorney in Edison, NJ. He often lectures
for the American Bar Association and New Jersey State
Bar Association on Elder Law, personal injury, and criminal / municipal court matters. He has published
125 articles in national and New Jersey publications on legal topics.
He speaks as a volunteer on Wills and Elder law to Adult
Community Schools and non profit groups including
Edison, Metuchen, Woodbridge, East Brunswick,
North Brunswick, South Brunswick, Piscataway,
Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey's most popular Elder law website on the Internet to provide information
on Probate, Elder Law and Traffic matters located at www.njlaws.com
About Middlesex County Estate Planning Council:
In several counties in New Jersey, estate planning professionals have set up Councils whereby those
assisting seniors and taxpayers with their estate
planning could meet on a quarterly basis to share
ideas. Invited to attend are accountants, financial
planners, Life insurance agents, funeral directors,
bank representatives involved in reserve mortgages,
nursing home managers and Municipal senior citizen
coordinators. We will share ideas on providing advice,
new laws and marketing. Senior Citizen Coordinators
and anyone who provides advice to seniors and the
Elderly should also attend.
http://www.njlaws.com/middlesex_estate_council_speaker_needed.htm
3. Recent webpages added to www.njlaws.com website.
1. Middlesex County Bar Association 3rd Annual Awards Dinner
2. Intestacy
3. Litigation Involving Wills
4. Litigation Involving Intestacy
5. NJ Inheritance Return Form Revised
6. Victims Testifying at Trial
7. Whiplash
8. Strains
9. Sprains
10.Anabolic Steroids
11.Financial Recovery for Fall Down Victims
12.Black Ice Fall Down
13.Wills for Unmarried Women
14.30:4-123.51 Eligibility for parole
15.39:4-50.9. Drunk Driving Victim's Bill of Rights
16.Financial Recovery for Car Accident Victims
17.Injury Help Line
18.Fiduciary Duties, Obligations and Liabilities
19.Brief to Dismiss DWI Summons
20.FIRST INTERIM REPORT OF THE NEW JERSEY CIVIL UNION REVIEW COMMISSION
21.Whiplash in Car Accidents
Thank you for reading our newsletter! God Bless America USA #1
Our updated 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 2008. 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, March 18, 2008
Thursday, March 06, 2008
NJ Laws Email Newsletter E269 - March 6, 2008
March 6, 2008
In This Issue
_______________
1. Where mother neglected and abandoned child, she could not inherit boy's $1 million estate.
2. DWI defendant entitled to step down based on uncounseled prior plea.
3. Police Can Use An Electronic Tracking Devise to Trace a Stolen Cell Phone.
4. New Law effective March 1 Cell phone law.
5. Events this week: March 7 Friendly Sons of St. Patrick Friday.
6. Intestacy [Someone died and no Will].
--------------------------------------------------------------------------------
Greetings,
1. Where mother neglected and abandoned child, she could not inherit boy's $1 million estate.
New Jersey Division of Youth and Family Services v. M.W. // In the Matter of the Guardianship of R.W., F.W. and T.H. A-5756-05T4; A-6485-05T4 02-26-08
DYFS filed an action to terminate parental rights of two children against mother who abused and abandoned them. A third child also abused and neglected by the mother died as the result of abuse by the person to whom mother abandoned her children.
Mother sued DYFS for wrongful death of third child and received $1 million settlement from the State. Trial court permitted amendment of guardianship action to include third child and terminated mother's parental rights to all three children. Held in these unusual circumstances that parental rights to child could be terminated posthumously on principle that equity will not permit wrongdoer to profit by wrongdoing.
2. DWI defendant entitled to step down based on uncounseled prior plea. State v Conroy __ NJ Super. __ (App Div decided January 9, 2008) A-2384-06T5.
The question presented is whether a defendant, who has had three prior convictions for DWI, was entitled to the benefit of the ten-year step-down provision of N.J.S.A. 39:4-50(a)(3) on a fourth conviction, where the first conviction was entered by way of an uncounseled plea. The court answered the question in the affirmative, determining that when defendant appeared before the Law Division he stood as a third offender, not a fourth offender, for the limited purpose of the trial court imposing a jail sentence under the enhanced sentencing provision of the DWI statute. Laurick continued.
3. Police Can Use An Electronic Tracking Devise to Trace a Stolen Cell Phone. State v. Laboo 396 NJ Super. 97 (App. Div. 2007).
Three individual committed a string of armed robberies over the course of a one-hour period, taking items that included two cell phones. Approximately thirty hours after the last robbery, police used a tracking device to track one of the stolen cell phones to a three-family home located in a high crime area. Three officers entered the building and used a handheld tracking device to determine the exact apartment. An officer knocked on the apartment door and announced that he was a police officer. The officer then heard a young female yelling and a man's voice saying "shut up, shut up, 5-0," and scurrying inside the apartment. Without obtaining a warrant, the officers forcibly entered the apartment, wherein they found evidence from the robberies.
The Court reversed the law division's order suppressing the evidence. The search was justified because the exigent circumstances, although police-created, arose as a result of reasonable investigative conduct. The Court held that the police were not required to secure a warrant because a delay presented a real potential danger to the officers and public, under the circumstances.
4. New Law effective March 1 Cell phone law.
Makes it a primary offense for motorists to talk on or text message with hand-held wireless telephone or electronic communication device while driving. S-1099/A-4146.
5. Events this week:
March 7: Friendly Sons of St. Patrick Friday This year's dinner will be at the DoubleTree Hotel in Somerset, NJ The dinner will be a black tie, men only. Tickets will be $100.00 and made payable to Friendly Sons of St. Patrick. Call Kenneth Vercammen if interested.
March 9, Sunday: Newark Distance Classic 20K. The race will start at 9:30 am and the application is available here.
Ken Vercammen looking for a ride from North Brunswick/ Edison area to Newark Sunday March 9 to run with the team
Please let me know as always, to include your name on a team, you need to have be a USATF (2008) member. If you haven't already, please renew your USATF membership for 2008 here (RVRR is still Club # 202) before putting a toe on the line.
March 9: St Patrick Parade - Woodbridge 1pm, followed by corned beef and beer at Hungarian club.
6. Intestacy [Someone died and no Will].
Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the "Intestate Estate". Intestacy law, also referred to as the law of descent and distribution or intestate succession statutes, refers to the body of common law that determines who is entitled to the property from the estate under the rules of inheritance. See http://en.wikipedia.org/wiki/Intestacy
INTESTACY
According to the Bergen County Surrogate, It is estimated that almost one third of the persons who die this year, will die without a will. See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
The estate of every Bergen County resident must be settled with the County Surrogate's Court unless the deceased owned no assets individually in New Jersey. Except in that limited circumstance, an estate must be presented to the County Surrogate before disbursement of the deceased's assets can occur. This estate settlement requirement applies whether the person died with or without a will.
The estate of a person who dies without a will is called an "intestate" estate. The Administrator's responsibilities include notifying the deceased's next of kin of his/her death, assembling the estate's assets and disbursing those assets according to law. The applicant need not be an attorney. In fact, most applicants complete the entire Surrogate's Court process without the need for an attorney. However, if you feel more comfortable bringing an attorney to the Surrogate's Court, you may certainly do so.
To apply to be the Administrator of an intestate estate, a person must bring the following to the County Surrogate's Court: (1) The original death certificate with raised seal; (2) An estimate of the gross value (but not an item-by-item description) of the estate covering all real estate and non-real estate (personal) assets; (3) The complete names and addresses of the deceased's next of kin; (4) A blank New Jersey check or cash for fees-the average fees, excluding bonding costs, are $150-$250); (5) A formal, written Renunciation of the right to serve as the estate's Administrator signed (in the presence of a Notary Public) by every person, if any, who has statutory preference over the applicant to serve as the estate's Administrator.
As a matter of law, the family members of the deceased have the first right to serve as the Administrator, in the following order of preference: spouse, children, parents, brothers and sisters. Should no family member seek appointment, then a creditor or anyone else may do so. A person who renounces the right to serve as Administrator may do so without disclaiming the right to receive any of the deceased's assets. (In contrast, by having a will, a person can choose the individual(s) he/she wishes to take charge and distribute his/her estate's assets (the "Executor(s)"). Source: See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
Once the above-described five items have been received, the Surrogate will appoint the applicant as the Administrator of the intestate estate. In most cases, the Administrator must be bonded until the estate has been properly assembled and distributed. This bonding fee is in addition to the $150-250 in average fees paid by the person seeking to be approved as Administrator. Bonding is required to protect the creditors and beneficiaries of the estate from the possibility that the Administrator will misuse his/her authority to their financial detriment.
There are, however, exceptions to the bonding requirement for intestate estates. If the deceased has a surviving spouse and no surviving parent or child, the surviving spouse need not post a bond. If the deceased left a surviving spouse and a surviving parent or child, then there will be no bond required of the surviving spouse for the first $50,000 of the estate and one-half of the remainder. Otherwise, the cost of bonding is fixed on the value of the estate. Bond premiums are currently $100 per year, if the estate is worth $18,000 or less; $525 per year, if the estate is worth $100,000 or less. (By way of comparison, a person can have a simple Will drafted by an attorney for $250-$350 and the will can state that the person taking charge of the estate's assets, the "Executor", shall serve without any bond.)
After the Administrator has been appointed and bonded, the Surrogate's Court will then issue Surrogate's Certificates (also known as Letters of Administration) that are used to assemble and transfer the intestate's assets. It is recommended that you order several copies of these Certificates, especially if the assets are being held by several banks, brokerage firms, pension plans and insurance companies. They will also be needed to sell or transfer all real estate assets. Along with the Certificates, a General Information brochure regarding the New Jersey Inheritance Tax is sent by the Surrogate's Court to the Administrator by mail within 5-7 business days of his/her appointment.
Administration of the estate cannot be first completed until several additional steps are taken. First, the Administrator must gather the assets, pay the just debts and taxes, and then distribute the balance of the estate's assets in accordance with the law. Second, once all assets of the estate have been disbursed, the Administrator must have each recipient sign a Refunding Bond. The Administrator should also have the recipient(s) sign a Release at the same time. The Surrogate's Court provides, without charge, a form combining a Release and Refunding Bond. The executed Release and Refunding Bond (signed by the recipient in the presence of a Notary Public) should then be filed with the Surrogate's Court at a cost of $10.00 per Bond.
Source:
See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
The laws of the State of New Jersey provide for the assets of the intestate estate to be distributed to the next of kin by "intestate succession" as follows:
I. If you die leaving a spouse but no children, grandchildren or parents, the surviving spouse receives all.
II. If you die leaving a spouse and children who are also the children of the spouse, the spouse receives the first $50,000 plus one-half of the balance of the estate. The children receive the other one-half of the balance divided equally amongst them. If one of your children dies leaving children then your grandchildren take their deceased's parent's share. However, if all of your children have died before you then all of your grandchildren will share equally.
III. If you die leaving a spouse and children who are not also the children of that spouse, the spouse receives one-half, the children receive one-half divided equally and, if applicable, the grandchildren take their deceased parent's share unless all the children are deceased. Should that occur, all the grandchildren share equally.
IV. If you die leaving children but no spouse, the children receive all divided equally among them. If there are grandchildren, they take their deceased parent's share, unless all the children are deceased. In that event, all the grandchildren share equally.
V. If you die leaving a spouse but no children or grandchildren, and if your mother or father is still living, your spouse receives the first $50,000 of your estate plus one-half of the balance and your parents (or parent, if only one survives you) receives the remainder.
VI. If you die leaving no spouse, no children, no grandchildren, no grandchildren and one or both of you parents survive you, the surviving parent or parents take all divided equally. If no parent survives, then your surviving brothers and sisters receive all divided equally.
VII. If you die leaving no surviving spouse, children, grandchildren, parents, brothers or sisters, then the estate will be divided equally among those people surviving you in the closest degree of kinship (starting with nieces and nephews) until an heir is found if possible.
VIII. If you die leaving no surviving next of kin without a Will, your estate assets escheat to the State of New Jersey.
In a related manner, in addition to the appointment of an Administrator for an intestate estate, if the count resident dies leaving a child under 18 years of age and there is no other legal guardian for that minor child, then the Bergen County Surrogate must appoint that minor child's guardian. The procedure for this appointment is similar to the application and bonding process for an Administrator in the sense that the law gives certain family members priority to serve as guardian of the deceased's minor child, while allowing those lower on the priority ladder to serve as long as the appropriate written renunciations have been received by the Surrogate. (In contrast, if the person who died had a will, the deceased could have designated the guardian(s) of his/her minor child in the will and this designation would have been binding upon the Surrogate and all others.
Source:
See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
Thank you for reading our newsletter! God Bless America USA #1
Our updated 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 2008. 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
In This Issue
_______________
1. Where mother neglected and abandoned child, she could not inherit boy's $1 million estate.
2. DWI defendant entitled to step down based on uncounseled prior plea.
3. Police Can Use An Electronic Tracking Devise to Trace a Stolen Cell Phone.
4. New Law effective March 1 Cell phone law.
5. Events this week: March 7 Friendly Sons of St. Patrick Friday.
6. Intestacy [Someone died and no Will].
--------------------------------------------------------------------------------
Greetings,
1. Where mother neglected and abandoned child, she could not inherit boy's $1 million estate.
New Jersey Division of Youth and Family Services v. M.W. // In the Matter of the Guardianship of R.W., F.W. and T.H. A-5756-05T4; A-6485-05T4 02-26-08
DYFS filed an action to terminate parental rights of two children against mother who abused and abandoned them. A third child also abused and neglected by the mother died as the result of abuse by the person to whom mother abandoned her children.
Mother sued DYFS for wrongful death of third child and received $1 million settlement from the State. Trial court permitted amendment of guardianship action to include third child and terminated mother's parental rights to all three children. Held in these unusual circumstances that parental rights to child could be terminated posthumously on principle that equity will not permit wrongdoer to profit by wrongdoing.
2. DWI defendant entitled to step down based on uncounseled prior plea. State v Conroy __ NJ Super. __ (App Div decided January 9, 2008) A-2384-06T5.
The question presented is whether a defendant, who has had three prior convictions for DWI, was entitled to the benefit of the ten-year step-down provision of N.J.S.A. 39:4-50(a)(3) on a fourth conviction, where the first conviction was entered by way of an uncounseled plea. The court answered the question in the affirmative, determining that when defendant appeared before the Law Division he stood as a third offender, not a fourth offender, for the limited purpose of the trial court imposing a jail sentence under the enhanced sentencing provision of the DWI statute. Laurick continued.
3. Police Can Use An Electronic Tracking Devise to Trace a Stolen Cell Phone. State v. Laboo 396 NJ Super. 97 (App. Div. 2007).
Three individual committed a string of armed robberies over the course of a one-hour period, taking items that included two cell phones. Approximately thirty hours after the last robbery, police used a tracking device to track one of the stolen cell phones to a three-family home located in a high crime area. Three officers entered the building and used a handheld tracking device to determine the exact apartment. An officer knocked on the apartment door and announced that he was a police officer. The officer then heard a young female yelling and a man's voice saying "shut up, shut up, 5-0," and scurrying inside the apartment. Without obtaining a warrant, the officers forcibly entered the apartment, wherein they found evidence from the robberies.
The Court reversed the law division's order suppressing the evidence. The search was justified because the exigent circumstances, although police-created, arose as a result of reasonable investigative conduct. The Court held that the police were not required to secure a warrant because a delay presented a real potential danger to the officers and public, under the circumstances.
4. New Law effective March 1 Cell phone law.
Makes it a primary offense for motorists to talk on or text message with hand-held wireless telephone or electronic communication device while driving. S-1099/A-4146.
5. Events this week:
March 7: Friendly Sons of St. Patrick Friday This year's dinner will be at the DoubleTree Hotel in Somerset, NJ The dinner will be a black tie, men only. Tickets will be $100.00 and made payable to Friendly Sons of St. Patrick. Call Kenneth Vercammen if interested.
March 9, Sunday: Newark Distance Classic 20K. The race will start at 9:30 am and the application is available here.
Ken Vercammen looking for a ride from North Brunswick/ Edison area to Newark Sunday March 9 to run with the team
Please let me know as always, to include your name on a team, you need to have be a USATF (2008) member. If you haven't already, please renew your USATF membership for 2008 here (RVRR is still Club # 202) before putting a toe on the line.
March 9: St Patrick Parade - Woodbridge 1pm, followed by corned beef and beer at Hungarian club.
6. Intestacy [Someone died and no Will].
Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the "Intestate Estate". Intestacy law, also referred to as the law of descent and distribution or intestate succession statutes, refers to the body of common law that determines who is entitled to the property from the estate under the rules of inheritance. See http://en.wikipedia.org/wiki/Intestacy
INTESTACY
According to the Bergen County Surrogate, It is estimated that almost one third of the persons who die this year, will die without a will. See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
The estate of every Bergen County resident must be settled with the County Surrogate's Court unless the deceased owned no assets individually in New Jersey. Except in that limited circumstance, an estate must be presented to the County Surrogate before disbursement of the deceased's assets can occur. This estate settlement requirement applies whether the person died with or without a will.
The estate of a person who dies without a will is called an "intestate" estate. The Administrator's responsibilities include notifying the deceased's next of kin of his/her death, assembling the estate's assets and disbursing those assets according to law. The applicant need not be an attorney. In fact, most applicants complete the entire Surrogate's Court process without the need for an attorney. However, if you feel more comfortable bringing an attorney to the Surrogate's Court, you may certainly do so.
To apply to be the Administrator of an intestate estate, a person must bring the following to the County Surrogate's Court: (1) The original death certificate with raised seal; (2) An estimate of the gross value (but not an item-by-item description) of the estate covering all real estate and non-real estate (personal) assets; (3) The complete names and addresses of the deceased's next of kin; (4) A blank New Jersey check or cash for fees-the average fees, excluding bonding costs, are $150-$250); (5) A formal, written Renunciation of the right to serve as the estate's Administrator signed (in the presence of a Notary Public) by every person, if any, who has statutory preference over the applicant to serve as the estate's Administrator.
As a matter of law, the family members of the deceased have the first right to serve as the Administrator, in the following order of preference: spouse, children, parents, brothers and sisters. Should no family member seek appointment, then a creditor or anyone else may do so. A person who renounces the right to serve as Administrator may do so without disclaiming the right to receive any of the deceased's assets. (In contrast, by having a will, a person can choose the individual(s) he/she wishes to take charge and distribute his/her estate's assets (the "Executor(s)"). Source: See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
Once the above-described five items have been received, the Surrogate will appoint the applicant as the Administrator of the intestate estate. In most cases, the Administrator must be bonded until the estate has been properly assembled and distributed. This bonding fee is in addition to the $150-250 in average fees paid by the person seeking to be approved as Administrator. Bonding is required to protect the creditors and beneficiaries of the estate from the possibility that the Administrator will misuse his/her authority to their financial detriment.
There are, however, exceptions to the bonding requirement for intestate estates. If the deceased has a surviving spouse and no surviving parent or child, the surviving spouse need not post a bond. If the deceased left a surviving spouse and a surviving parent or child, then there will be no bond required of the surviving spouse for the first $50,000 of the estate and one-half of the remainder. Otherwise, the cost of bonding is fixed on the value of the estate. Bond premiums are currently $100 per year, if the estate is worth $18,000 or less; $525 per year, if the estate is worth $100,000 or less. (By way of comparison, a person can have a simple Will drafted by an attorney for $250-$350 and the will can state that the person taking charge of the estate's assets, the "Executor", shall serve without any bond.)
After the Administrator has been appointed and bonded, the Surrogate's Court will then issue Surrogate's Certificates (also known as Letters of Administration) that are used to assemble and transfer the intestate's assets. It is recommended that you order several copies of these Certificates, especially if the assets are being held by several banks, brokerage firms, pension plans and insurance companies. They will also be needed to sell or transfer all real estate assets. Along with the Certificates, a General Information brochure regarding the New Jersey Inheritance Tax is sent by the Surrogate's Court to the Administrator by mail within 5-7 business days of his/her appointment.
Administration of the estate cannot be first completed until several additional steps are taken. First, the Administrator must gather the assets, pay the just debts and taxes, and then distribute the balance of the estate's assets in accordance with the law. Second, once all assets of the estate have been disbursed, the Administrator must have each recipient sign a Refunding Bond. The Administrator should also have the recipient(s) sign a Release at the same time. The Surrogate's Court provides, without charge, a form combining a Release and Refunding Bond. The executed Release and Refunding Bond (signed by the recipient in the presence of a Notary Public) should then be filed with the Surrogate's Court at a cost of $10.00 per Bond.
Source:
See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
The laws of the State of New Jersey provide for the assets of the intestate estate to be distributed to the next of kin by "intestate succession" as follows:
I. If you die leaving a spouse but no children, grandchildren or parents, the surviving spouse receives all.
II. If you die leaving a spouse and children who are also the children of the spouse, the spouse receives the first $50,000 plus one-half of the balance of the estate. The children receive the other one-half of the balance divided equally amongst them. If one of your children dies leaving children then your grandchildren take their deceased's parent's share. However, if all of your children have died before you then all of your grandchildren will share equally.
III. If you die leaving a spouse and children who are not also the children of that spouse, the spouse receives one-half, the children receive one-half divided equally and, if applicable, the grandchildren take their deceased parent's share unless all the children are deceased. Should that occur, all the grandchildren share equally.
IV. If you die leaving children but no spouse, the children receive all divided equally among them. If there are grandchildren, they take their deceased parent's share, unless all the children are deceased. In that event, all the grandchildren share equally.
V. If you die leaving a spouse but no children or grandchildren, and if your mother or father is still living, your spouse receives the first $50,000 of your estate plus one-half of the balance and your parents (or parent, if only one survives you) receives the remainder.
VI. If you die leaving no spouse, no children, no grandchildren, no grandchildren and one or both of you parents survive you, the surviving parent or parents take all divided equally. If no parent survives, then your surviving brothers and sisters receive all divided equally.
VII. If you die leaving no surviving spouse, children, grandchildren, parents, brothers or sisters, then the estate will be divided equally among those people surviving you in the closest degree of kinship (starting with nieces and nephews) until an heir is found if possible.
VIII. If you die leaving no surviving next of kin without a Will, your estate assets escheat to the State of New Jersey.
In a related manner, in addition to the appointment of an Administrator for an intestate estate, if the count resident dies leaving a child under 18 years of age and there is no other legal guardian for that minor child, then the Bergen County Surrogate must appoint that minor child's guardian. The procedure for this appointment is similar to the application and bonding process for an Administrator in the sense that the law gives certain family members priority to serve as guardian of the deceased's minor child, while allowing those lower on the priority ladder to serve as long as the appropriate written renunciations have been received by the Surrogate. (In contrast, if the person who died had a will, the deceased could have designated the guardian(s) of his/her minor child in the will and this designation would have been binding upon the Surrogate and all others.
Source:
See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
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Saturday, March 01, 2008
WILLS, PROBATE AND ELDER LAW- East Brunswick Community Adult Education
WILLS, PROBATE AND ELDER LAW- East Brunswick Community Adult Education
WHEN: Tuesday April 8, 2008 7 - 8:30 P.M.
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.njlaws.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
Course # SPS ....... Fee: $29
Tues. 7:00–9:00 pm ........ 1 session: 4/8
$ 29.00 registration fee required by adult school for all others. Call the Adult Education Office for registration information 732- 613-6989
http://www.ebnet.org/Community_Programs/downloads/Spring_2008_Web.pdf
Please make checks payable to Adult and Community Education and mail to:
Director, East Brunswick Adult and Community Education,
EBHS, 380 Cranbury Road, East Brunswick, NJ 08816-3095.
About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law, personal injury, and criminal / municipal court matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey's most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.njlaws.com
WHEN: Tuesday April 8, 2008 7 - 8:30 P.M.
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.njlaws.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
Course # SPS ....... Fee: $29
Tues. 7:00–9:00 pm ........ 1 session: 4/8
$ 29.00 registration fee required by adult school for all others. Call the Adult Education Office for registration information 732- 613-6989
http://www.ebnet.org/Community_Programs/downloads/Spring_2008_Web.pdf
Please make checks payable to Adult and Community Education and mail to:
Director, East Brunswick Adult and Community Education,
EBHS, 380 Cranbury Road, East Brunswick, NJ 08816-3095.
About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law, personal injury, and criminal / municipal court matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey's most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.njlaws.com
Middlesex County Bar Association 3rd Annual Awards Dinner
Middlesex County Bar Association 3rd Annual Awards Dinner
On March 19, 2008, the Middlesex County Bar Association will hold its third annual awards dinner at Sunny Palace Restaurant on Route 18 South in East Brunswick. Awards will be given to bar members in the following areas: Pro Bono; Non-Litigation; Civil Trial Practice; Criminal Trial Practice; and Municipal Court Practice.
The guest speaker will be Hon. Travis L. Francis, AJSC.
The MCBA will pay tribute to these bar members for their significant contributions to their respective practice areas.
The following awards will be given:
-Pro Bono Attorney-of-the Year Henry Gurshman
-Civil Trial Practitioner-of-the-Year John Gorman
-Criminal Trial Attorney-of-the-Year Jim Nolan & Nicole Albert
-Municipal Court Practitioner-of-the-Year Kenneth Vercammen
-Young Lawyer of the Year Kimberly Yonta Aronow
-Transactional Attorney of the Year Michael Schaff
The purpose of the Awards is to recognize attorneys practicing in Middlesex County and adjacent municipalities who devote a significant portion of their law practice to their respective practice areas and exhibit one or more of the following:
- Leadership in the potential candidate’s field of practice;
- Significant, tangible contributions to the Bar, such as participation in educational panels, Bar committees, etc, pertaining to non-litigation issues;
- Contributions to the community and/or charitable endeavors;
- A record promoting participation and involvement in the MCBA and collegiality within the Association; and
- A reputation for personal and professional integrity.
The evening will commence with a cocktail hour (cash bar) at 6:00 p.m. and dinner will be served at 7:00 p.m. The cost to attend is $35 for MCBA Young Lawyers, $40 for MCBA Members and $45 for all others, in advance.
For additional information, contact the Bar Office at (732) 828-3433, ext. 102.
More details at http://www.mcbalaw.com/cde.cfm?event=186648
Sunny Palace
1069 Route 18 South
East Brunswick, NJ 08816
On March 19, 2008, the Middlesex County Bar Association will hold its third annual awards dinner at Sunny Palace Restaurant on Route 18 South in East Brunswick. Awards will be given to bar members in the following areas: Pro Bono; Non-Litigation; Civil Trial Practice; Criminal Trial Practice; and Municipal Court Practice.
The guest speaker will be Hon. Travis L. Francis, AJSC.
The MCBA will pay tribute to these bar members for their significant contributions to their respective practice areas.
The following awards will be given:
-Pro Bono Attorney-of-the Year Henry Gurshman
-Civil Trial Practitioner-of-the-Year John Gorman
-Criminal Trial Attorney-of-the-Year Jim Nolan & Nicole Albert
-Municipal Court Practitioner-of-the-Year Kenneth Vercammen
-Young Lawyer of the Year Kimberly Yonta Aronow
-Transactional Attorney of the Year Michael Schaff
The purpose of the Awards is to recognize attorneys practicing in Middlesex County and adjacent municipalities who devote a significant portion of their law practice to their respective practice areas and exhibit one or more of the following:
- Leadership in the potential candidate’s field of practice;
- Significant, tangible contributions to the Bar, such as participation in educational panels, Bar committees, etc, pertaining to non-litigation issues;
- Contributions to the community and/or charitable endeavors;
- A record promoting participation and involvement in the MCBA and collegiality within the Association; and
- A reputation for personal and professional integrity.
The evening will commence with a cocktail hour (cash bar) at 6:00 p.m. and dinner will be served at 7:00 p.m. The cost to attend is $35 for MCBA Young Lawyers, $40 for MCBA Members and $45 for all others, in advance.
For additional information, contact the Bar Office at (732) 828-3433, ext. 102.
More details at http://www.mcbalaw.com/cde.cfm?event=186648
Sunny Palace
1069 Route 18 South
East Brunswick, NJ 08816
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