2053 Woodbridge Avenue - Edison, NJ 08817

Monday, August 16, 2010

NJ Laws Newsletter E347


1. Defendant Must Invoke Right to Remain Silent. Berghuis v. Thompkins ___ S. Ct. ____ (2010) June 01, 2010 No. 08-1470.

Defendant Thompkins' silence during the interrogation did not invoke his right to remain silent. A suspect's Miranda right to counsel must be invoked "unambiguously." Davis v. United States, 512 U.S. 452, 459. If the accused makes an "ambiguous or equivocal" statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused's intent, id., at 461-462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that "avoid[s] difficulties of proof and ... provide[s] guidance to officers" on how to proceed in the face of ambiguity. Davis, supra, at 458-459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither.

2. Judge Can Suspend DL for Willful Traffic Offense. State v. Moran ______ NJ _______ (2010) (A-55-09) July 13, 2010.

The license suspension provision of N.J.S.A.39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not "hidden," and defendant, like all motorists, is presumed to know the law. To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term "willful violation" contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges.


By Thomas D. Begley, Jr., Esquire

The current federal Medicaid statute has been in effect since 1989.[1] Generally, the statute provides that if an individual makes an uncompensated transfer of resources, the value of those resources are divided by the average monthly cost of a nursing home and the resulting quotient is the number of months during which the applicant will be ineligible for Medicaid benefits.[2] The statute further provides that "an individual shall not be ineligible for medical assistance by reason of [the transfer penalty rules] to the extent that...the assets were transferred to, or to a trust...established solely for the benefit of the individual's child [who is blind or disabled]."[3]

For 20 years New Jersey interpreted that statute to mean that if a parent transferred assets directly to a disabled child, the transfer was exempt from the Medicaid transfer of asset penalty. In 2009, without any change in federal or state statute or regulations New Jersey changed its interpretation and said that if assets are transferred directly to a disabled child, a transfer of asset penalty would be imposed. The state's position was that only assets transferred to a trust solely for the benefit of the disabled child were exempt from the imposition of the transfer of asset penalty.

In a recent case, two individual transferred assets directly to their disabled children. The State rejected the Medicaid applications and imposed transfer of asset penalties. The State asserted that only those transfers that were made to an irrevocable trust established for the sole benefit of a disabled child are eligible for an exemption from the transfer penalty rules.

The plaintiffs filed suit in U.S. District Court to obtain a preliminary injunction enjoining the State of New Jersey from treating an outright transfer of assets to a blind or disabled child as a penalized transfer.[4] The District Court held that the plaintiffs are likely to succeed on the merits of their claim and that irreparable harm would result to the plaintiffs in that there is a serious risk of discharge from nursing facilities and an inability to recover improperly withheld benefits after trial on the merits. The court granted the preliminary injunction. In its analysis, the Court said that the relevant statute reads, "An individual shall not be ineligible for medical assistance by reason of paragraph (1) to the extent that...the assets were transferred to, or to a trust (including a trust described in subsection (d)(4) of this Section) established solely for the benefit of, the individual's child [who is blind or disabled]." The dispute between the parties concerned the phrase "solely for the benefit of." The Medicaid applicants argued that the phrase applies only to transfers made to a trust, while the State insisted that the phrase also applies to transfers made to the individual's child. The Court held that the State's position was untenable. "The phrase 'solely for the benefit of' follows the words 'a trust.' The clause is set off by commas from the rest of the passage, suggesting that the 'solely for the benefit' language is suppose to apply to the noun that immediately precedes it. Once that clause is set off from the rest of the sentence the passage reads, 'An individual shall not be ineligible for medical assistance by reason of paragraph (1) to the extent that...the assets were transferred to the individual's child.' The rating is further supported by the fact that the 'solely for the benefit of' language appears to be modifying the word 'established.' The word 'established' must in turn be referring exclusively to 'a trust.' In summary, it is syntactically implausible to maintain that the 'solely for the benefit' language applies to transfers directly to the applicant's child." Consequently, the statute has the effect of exempting any transfer of resources made directly to an applicant's blind or disabled child, regardless of whether the transferor makes special arrangements to ensure that the transfer is for the child's sole benefit. The Court also noted that the State Medicaid Manual specifically states that the transfer of asset penalty does not apply if "assets were...transferred to the individual's child, or to a trust...established solely for the benefit of the individual's child."

The result of this case is that transfers of assets made directly to a disabled child are exempt from the Medicaid transfer of asset penalty just as they have been for the past 20 years.

[1] 42 U.S.C. §1396p.

[2] 42 U.S.C. §1396p(c)(1)(A) & (B).

[3] 42 U.S.C. §1396p(c)(2)(B)(iii).

[4] Sorber v. Velez, United States District Court, District of New Jersey, Civ. No. 09-cv-3799 (Oct. 23, 2009).


Begley, Begley & Bookbinder, P.C., 509 South Lenola, Building 7, Moorestown, NJ 08057 (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, and Martin Spigner of the 400 plus page book on Elder Law. Should you or a family member require assistance with respect to obtaining guardianship of an individual, please contact Begley, Begley & Bookbinder at (800)-533-7227.

4. Next Events:

Belmar 1 Mile Ocean Swim [no running required]

RACE DATE: Sat. August 21 2010



10th Ave Beach on boardwalk

ENTRY FEE: $22.00


$25 Day of Race


(732) 319-0282 or:peter@newjerseyraceclub.com

PRIZES: Race T-Shirt for every swimmer

1st Male & Female Overall

2nd Male & Female Overall

1st Male & Female over 35

1st Male & Female over 50

RIBBONS: 1st/2nd/3rd in age group

Male & Female

AGE GROUPS: 14&UNDER, 15-19,

20-24, 25-29

30-34, 35-39, 40-44

45-49, 50-54, 55-59

60-64, 65-69, 70+


In the event of rough ocean surf, Check NJRC website: newjerseyraceclub.com or call 732-319-0282.

AUGUST 22, 2010

Wall Ocean Mile Swim, 1 mile ocean swim, 8am, Sea Girt NJ


Editorial Assistance provided by J. Edmund Bryak. Mr. Bryak, is an Army Veteran of Operation Iraqi Freedom and a second year law student at Temple University. Mr. Bryak is currently a summer intern at Kenneth Vercammen and Associates, P.C.

Tuesday, August 03, 2010

NJ Laws Newsletter E345

NJ Laws Email Newsletter E345
Kenneth Vercammen, Attorney at Law

July 30, 2010

Main Website with 500 + articles and 1,000 + links

In This Issue:

1.REMINDER INVITE: Happy Hour, Open House, Client & Community Appreciation Social.


2. PTI Dismissal Does Not Automatically Permit Civil Suit.

3. Assignment Judge Can Designate Other Municipal Court Judges to Sign a Warrant.

4. Next Legal Seminar.

5. Speaker's Bureau

Office Phone Number:

(732) 572-0500
Greetings Kenneth Vercammen,

1. Reminder Invite: Happy Hour, Open House, Client & Community Appreciation Social.

Open to the Public

Friday, July 30, 2010 4-7 PM

Kenneth Vercammen Law Office
2053 Woodbridge Avenue,
Edison, NJ 08817


Thank you to the many persons I've had the pleasure of meeting at community activities, running races, Bar Association events and educational seminars over the past 25 years. You are invited to our 25th Anniversary Party.


-Yes, We will be attending the party


Recent Cases:

2. PTI Dismissal Does Not Automatically Permit Civil Suit. Bustamante v. Borough of Paramus __ NJ Super. ____ (App. Div. 2010) A-1869-08T2 (05-07-10)

Plaintiff's complaint alleging violations of 42 U.S.C.A. §1983, and common law assault and battery, was dismissed pursuant to Rule 4:6-2(e). Plaintiff had been indicted for resisting arrest and aggravated assault upon two of defendant police officers. After pleading guilty to resisting, plaintiff entered PTI and all charges against him were dismissed. Defendants argued that plaintiff's civil complaint was barred by the "unfavorable result" of his guilty plea and entry into PTI, relying upon the holding in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005). The trial judge agreed and dismissed the complaint with prejudice. The Appellate Division concluded that plaintiff's civil claims are barred by the disposition of his criminal charges only if a potential verdict in the civil case was inconsistent with the underlying criminal charges. Because plaintiff alleged that the officers continued to assault him after he was in custody, his claims were not barred as a matter of law, and should not have been dismissed pursuant to Rule 4:6-2(e).

3. Assignment Judge Can Designate Other Municipal Court Judges to Sign a Warrant. State v. Broom-Smith 201 NJ 229 (2010)

The Court affirms the Appellate Division's determination that N.J.S.A. 2B:12-6 and Rule 1:12-3, which address the designation of judges, were broad enough to authorize the Berkeley Township municipal judge to issue the search warrant for defendant's house in Dover Township under the circumstances presented in this case.

4. Next Legal Seminar

Monday, August 9 - Municipal Court Practice CLE Seminar - 4:30 p.m.


2009-2010 Significant Municipal Court Cases & Other Oldies, But Goodies

2.0 NJ CLE Credits


William G. Brigiani, Esq.


Kenneth Vercammen, Esq.


MCBA Office, 87 Bayard Street, New Brunswick.

Cost to attend is $20 for MCBA YLC Members, $25 for MCBA Members and $50 for all others. To RSVP online or print out a registration form click here - August 9th Mun Ct Seminar

5. Speakers Bureau

If you are interested in having an Attorney from Kenneth Vercammen & Associates speak at an event, please the Law Office at 732-572-0500 or kenvnjlaws@verizon.net

Editorial Assistance provided by Nikhil Joshi, who attends The New Jersey Institute of Technology as a Graduate Student. Mr. Joshi obtained his Bachelor's Degree from the University of Washington and is currently participating in Kenneth Vercammen's Summer Internship Program.

Sunday, August 01, 2010

2010 Significant Municipal Court Cases
 August 9th

2010 Significant Municipal Court Cases

August 9th Monday,
4:30 p.m. MCBA Office - 87 Bayard Street, New Brunswick, NJ 08901

Kenneth Vercammen, Esq.

Kenneth Vercammen & Associates – Edison
William G. Brigiani, Esq. BRIGIANI & Cohen - East Brunswick 
William G. Brigiani, Esq. BRIGIANI & Cohen - East Brunswick
Some of the featured cases will include:
-State v. Handy (suppression granted where search based on dispatcher error)
-State v. Marquez (refusal does not stand if driver doesn’t understand English)
-State v. Moran (Judge can suspend Drivers License for Traffic Offense)
-State v. Tsetsekas (DWI dismissed where more than 360 days lapsed)
-State v. Ugrovics (State must prove 20-minute observation prior to breathtest by clear and convincing evidence, but arresting officer can testify to observation)
-State v. Ciancaglini (prior refusal counts for 3rd DWI)
The cost to attend is $20 for Young Lawyers, $25 for MCBA Members and $50 for all others. Light refreshments will be provided.
This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 2.0 hours of total CLE credit.

To reserve online, click on the "Register for Event Now" button above. To reserve by mail, print out a meeting reservation form (see link below) and return with payment to: MCBA, 87 Bayard Street, New Brunswick, NJ 08901.
August 9th Municipal Court Seminar Reservation Form (pdf)
Info call 732-828-3433, x.102