2053 Woodbridge Avenue - Edison, NJ 08817

Kenneth Vercammen is a trial attorney in Edison, NJ. He is a speaker at the annual Nuts & Bolts of Estate Administration & Elder Law program, American Bar Association General Practice Division. New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week litigation and contested Probate hearings.

Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

Monday, August 12, 2013

E425 US Supreme Court Requires Warrant Before Taking of Blood in DWI. Police Seeing Defendant Smoking Joint in Open Door Justified the Warrantless Entry into Defendant's Apartment and the Seizure of the Marijuana Cigarette. New Laws: Cell Phone and Prenuptial Agreements Super Lawyers: Nominations Open for New Jersey Super Lawyers PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE


NJ Laws Email Newsletter E425
  


August 8, 2013



US Supreme Court Requires Warrant Before Taking of Blood in DWI.

Police Seeing Defendant Smoking Joint in Open Door Justified the Warrantless Entry into Defendant's Apartment and the Seizure of the Marijuana Cigarette.

New Laws: Cell Phone and Prenuptial Agreements

Super Lawyers: Nominations Open for New Jersey Super Lawyers

Professional Office Space Available in Edison Law Office





1. US Supreme Court Requires Warrant Before Taking of Blood in DWI Missouri v McNeely 133 S. Ct. 1552 (2013).
Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely's BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely's blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying onSchmerber v. California, 384 U. S. 757, in which this Court upheld a DWI suspect's warrantless blood test where the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence,' " id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely's right to be free from unreasonable searches of his person.

Held: The judgment is affirmed.                               Justice Sotomayor delivered the opinion of the Court with respect to Parts I, II-A, II-B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.                                      (a) The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson414 U. S. 218, applies here, where the search involved a compelled physical intrusion beneath McNeely's skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception "applies when ' "the exigencies of the situation" make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.' " Kentucky v. King, 563 U. S.. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart,547 U. S. 398. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene.
2. Police Seeing Defendant Smoking Joint in Open Door Justified the Warrantless Entry into Defendant's Apartment and the Seizure of the Marijuana Cigarette. State v Walker 213 N.J. 281 (2013)
Although the information contained in the tip was uncorroborated, by the time the officers knocked at the door of defendant's apartment, subsequent events, created by defendant's own actions, established probable cause and exigent circumstances which justified an entry into defendant's apartment. Thus, the warrantless seizure of the marijuana cigarette and all the CDS found in defendant's apartment was proper and permissible under the New Jersey and federal constitutions. Although the underlying offense here, possession of marijuana, is a disorderly persons offense, the circumstances indicate that the officers' warrantless entry into defendant's home was objectively reasonable. A limited entry was necessary to arrest defendant for the disorderly persons offense and to retrieve the marijuana cigarette. After entering, the officers saw in the living room CDS and other contraband in plain view. These items were subject to seizure as well.
  

3. New Laws: Cell Phone and Prenuptial Agreements.   
P.L.2013, c.70. Increases fine and Imposes License Suspension 
 for Talking or Texting on Hand-held Device While Driving.
  

  Approved 6/27/2013
Senate Bill No. 69 (2R) imposes increased fines for first, second and subsequent offenses of talking on a hand-held wireless telephone or texting a message with a hand-held wireless electronic communication device while driving.  Specifically, this bill increases the fines to $200 to $400 for a first offense, $400 to $600 for a second offense, and $600 to $800 for third or subsequent offenses.
     
Strengthens Enforceability of Premarital and Pre-Civil Union Agreements.  
PL 2013, c70. 

Approved 6/27/2013 


This floor amendment provides that only premarital and pre-civil union agreements entered into on or after the effective date of the bill (immediately upon enactment), or entered into before effective date but voluntarily revised by the parties on or after that effective date would be subject to its provisions.


Thus, premarital and pre-civil union agreements entered into before the effective date would remain subject to the current law, which permits agreements to be set aside if deemed, at the time of enforcement, to be "unconscionable."  See R.S.37:2-32, subsection c. and R.S.37:2-38, subsection b. 
     
Only new agreements, or older agreements with new revisions, would be subject to the underlying bill's new standard of unconscionability: such agreements could not be deemed unconscionable unless determined to be unconscionable when executed because the party seeking to set aside the agreement: (1) was not provided full and fair disclosure of the earnings, property, and financial obligations of the other party; (2) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; (3) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or (4) did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
 


4.      Super Lawyers: Nominations Open for New Jersey Super Lawyers


The selection process for New Jersey Super Lawyers and Rising Stars 2014 is underway. Attorneys must Nominate & Update your information by August 29th.

  •  

  • Why?  Because when attorneys update practice information, it puts them on Superlawyer's system - their research department will review your background, experience and credentials as part of their selection process.


5. 
PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE 
2053 Woodbridge Ave.


Edison, NJ 08817

Excellent space for an Attorney, Financial Planners, Accountant, Insurance Agents, and other Business Professionals as a 2nd location or location to meet clients in Edison.

The offices are located on the 1st floor of the building.
2 rooms office  
office room # 6 approx 12.4 x 9.4       
and front room appr 8 x 9 -office room # 5
plus use of reception room  16.6 x 7.2
and use of storage area in basement
         
$600 per month [was $700]
Call 732-572-0500
   Owner of building is local attorney, Kenneth Vercammen who handles Personal Injury, Elder Law, and Criminal Law. 

E423 1. Why choose an Elder Law Attorney? By Tom Begley, Jr. Real Estate Sales - Time to Prepare your Home for Sale, Join the Edison Community Pool Now!


NJ Laws Email Newsletter E423
   

June 25, 2013




  
  

  
  
www.njlaws.com 


  In This Issue:


 Why choose an  Elder Law Attorney?  By Tom Begley, Jr.

Real Estate Sales  -  Time to Prepare your  Home for Sale 








Why choose an Elder Law Attorney? By Tom Begley, Jr.
Rather than being defined by technical and legal distinctions, Elder Law is defined by the clients to be served.  In other words, the attorney who practices Elder Law works primarily with people as they age.

Elder Law attorneys use a variety of legal tools and techniques to meet the goals and objectives of their clients. Elder Law attorneys typically work with other professionals in various fields to provide their clients quality service and ensure their needs are met.

Using this holistic approach, for example, an Elder Law attorney will address general estate planning issues and will counsel clients about planning for incapacity with alternative decision-making documents. This attorney will also assist clients in planning for possible long-term care needs, including nursing home care. Locating the appropriate type of care, coordinating private and public resources to finance the cost of care, and working to ensure the client's right to quality care are all part of the Elder Law practice.
  
Legal problems that affect the elderly are growing in number. Our laws and regulations are becoming more complex. Actions taken by older people with regard to a single matter may have unintended legal effects. It is important for attorneys dealing with the elderly to have a broad understanding of the laws that may have an impact on a given situation, to avoid future problems.
Unfortunately, this job is not made easy by the fact that Elder Law encompasses many different fields of law. Some of these include:

Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home

Conservatorships and guardianships

Estate planning, including planning for the management of one's estate during life and its disposition on death through the use of trusts, wills and other planning documents

Probate

      Administration and management of trusts and estates

You will want to hire the attorney who regularly handles matters in the area of concern in your particular case and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law on the list. For example, if you are going to rewrite your will and your spouse is ill, the estate planner needs to know enough about Medicaid to know whether it is an issue with regard to your spouse's inheritance.

               Attorneys who primarily work with the elderly bring more to their practice than an expertise in the appropriate area of law. They bring to their practice a knowledge of the elderly that allows them and their staff to ignore the myths relating to aging and the competence of the elderly. At the same time, they will take into account and empathize with some of the true physical and mental difficulties that often accompany the aging process. Their understanding of the afflictions of the aged allows them to determine more easily the difference between the physical versus the mental disability of a client. They are more aware of real life problems, health and otherwise, that tend to crop up as persons age. They are tied into a formal or informal system of social workers, psychologists and other elder care professionals who may be of assistance to you. All of these things will hopefully make you more comfortable when dealing with them and ease your way as you try to resolve your legal problem.
Source: Begley E-Lert, Begley Law Group, 509 South Lenola Road, Building 7, Moorestown, NJ 08057. phone 800.533.7227 Tom Begley Jr. has been a speaker with Ken Vercammen at the Elder Law & Estate Administration program sponsored by the NJ Institute for Continuing Legal Education.


Real Estate Sales  - Time to Prepare your Home for Sale 
      To better serve our Probate and Senior citizen clients, Kenneth Vercammen has taken and passed the NJ Real Estate Salesperson test. The examination consists of numerous questions taken over a 4-hour period after taking numerous classes.  Mr. Vercammen is now also a licensed real estate agent. Even if we cannot handle the closing, we can refer you to realtors or attorneys experienced in real estate purchases or sales.
Join the Edison Community Pool Now!    
The Metuchen Branch YMCA and the Edison Elks are once again pleased to co-sponsor the Edison Community Pool, located on Old Post Road in Edison. They look forward to serving the South Edison Community and surrounding areas this summer.
The newly renovated Edison Community Pool located on Old Post Road in South Edison is surrounded by a wooded picnic area. The facility boasts a 25-yard, 4-lane pool, water slide and a kiddie pool for youngsters.
Bathrooms with showers and a snack area with vending machines are conveniently located around the pool area. A sand-filled volleyball court, basketball courts and playground make this swim club a place for family fun.
Edison Pool Dates and Hours of Operation:

The pool will be open fro the summer starting June 20 through Labor Day

Also available this year swim lessons for children ages 4-6 and 7-8.




E422 1. Recent cases: Decision on defense attorney informing criminals of deportation not retroactive 2. Two Felony convictions can only be expunged if contemporaneous

From:Kenneth Vercammen, Esq.
Subject:E422 1. Recent cases: Decision on defense attorney informing criminals of deportation not retroactive 2. Two Felony convictions can only be expunged if contemporaneous
Reply:vercammenlaw@njlaws.com

NJ Laws Email Newsletter E422

May 15, 2013

 




  
  
www.njlaws.com 


  In This Issue:


1. Recent cases: Decision on defense attorney informing criminals of 

deportation not retroactive.

2. Two Felony convictions can only be expunged if contemporaneous.




  

1. Recent cases: Decision on defense attorney informing criminals of deportation not retroactive State v Brewster 429 NJ Super. 387 (App. Div. 2013)
This PCR appeal addressed Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010); State v. Nunez- Valdez, 200 N.J. 129, 138 (2009); and Rule 3:22-12, the limitations period for filing a PCR petition as amended in 2010. The court hold that defendant did not establish factually a prima facie case of ineffective assistance of counsel by alleging that his attorney at the time he pleaded guilty in 1998 to marijuana charges failed to predict correctly that a federal deportation complaint would be filed against him in 2010. The warning contained in Question 17 of the plea form that defendant "may" be deported was correct and sufficient advice. Also, the PCR was untimely filed under R. 3:22-12, in particular, because an attorney told defendant no later than in 2007 that his conviction would cause immigration problems.
2. Two Felony convictions can only be expunged if contemporaneous In Re Expungement of R.Z. 429 NJ Super. 295 (App. Div. 2013)
The court reversed and remanded an order expunging an adult conviction for two second-degree crimes - theft by deception and financial facilitation of criminal activity - because petitioner failed to prove the crimes were contemporaneous. N.J.S.A. 2C:52-2(a) precludes expungement if a petitioner has been "convicted of any prior or subsequent crime." Crimes are prior or subsequent if committed on "separate occasions." In re Ross, 400 N.J. Super. 117, 122 (App. Div. 2008). The court held the petitioner bears the burden to show one crime was not prior or subsequent to the other. Also, the court hold a crime involving a course of conduct is deemed to occur, for expungement purposes, when the course of conduct begins as well as when it ends, and the court reject the suggestion that the date of commission is determined solely by N.J.S.A. 2C:1-6c, which states, for statute of limitations purposes, a crime involving a course of conduct is committed when the conduct terminates. The court remand to allow petitioner to submit proofs that his two crimes were in fact contemporaneous.

            Editorial assistance provided by Rocco Seminerio.  Mr. Seminerio will be entering his third year at Seton Hall University School of Law and is currently participating in Kenneth Vercammen's Spring Internship Program. 




E420 Court cannot consider Sup Mt testimony unless agreed by defendant. State v Gibson.


NJ Laws Email Newsletter E420
      April   4, 2013




  
  
www.njlaws.com 


  In This Issue:

 Recent Cases:
Court cannot  consider Sup Mt  testimony unless 
 agreed by  defendant. State v Gibson.

 Bias statute requires  proof of defendant  intended bias, not  victim perception. 
 State v. Pomianek.





Recent Cases:
Court cannot consider Sup Mt testimony unless agreed by defendant. State v Gibson __ NJ Super. __ (App. Div. 2013) A-5163-10T2
The court held that in a driving-under-the-influence prosecution, N.J.S.A. 39:4-50, due process and fundamental fairness preclude a trial court, absent a defendant's consent, from relying upon the evidence heard in a pre-trial suppression hearing as proof of guilt in the trial on the merits. In this case, defense counsel objected to reliance on the suppression hearing record and moved to dismiss in the absence of other proofs. The court nonetheless found defendant guilty of DUI solely on the basis of evidence elicited at the pre-trial hearing to suppress the fruits of a motor vehicle stop and subsequent arrest. The court reversed the conviction and order entry of a judgment of acquittal.
Bias statute requires proof of defendant intended bias, not victim perception. State v. Pomianek 429 NJ Super. 339 (App. Div. 2013)  
The court construed one section of the bias intimidation statute, which defendant challenged as unconstitutional. The court held that a conviction under N.J.S.A. 2C:16-1a(3) requires proof of the defendant's biased intent in committing the predicate crime; proof of the victim's perception of the crime is insufficient for a conviction. That construction is consistent with the legislative history and necessary to avoid holding the statute unconstitutional.
The court also construed the official misconduct statute, N.J.S.A. 2C:30-2a, holding that under the facts of this case defendant could be re-tried for official misconduct based on harassment by conduct but not harassment by communication.


E418 Later Discovery by Police of Parole Warrant does not Purge Taint of Unlawful Detention. 3. New Expungement Law Permits Crime Expungement in 5 years if Exemplary Life and Public Interest Shown.

From:Kenneth Vercammen, Esq.
Subject:E418 1. Please sign Kenneth Vercammen's petition for NJ State Bar 2nd Vice-President- We need 50 more signatures. 2. Later Discovery by Police of Parole Warrant does not Purge Taint of Unlawful Detention. 3. New Expungement Law Permits Crime Expungement in 5 years if Exemplary Life and Public Interest Shown. 
Reply:vercammenlaw@njlaws.com





 New Case: Later  Discovery by Police  of Parole  Warrant 
 does not Purge Taint 
 of  Unlawful    Detention.

 New Expungement 
 Law Permits Crime  Expungement in 
 5 years if Exemplary 
 Life and Public 
 Interest Shown.







New Case: Later Discovery by Police of Parole Warrant does not Purge Taint of Unlawful Detention. State v. Shaw __ NJ __ (A-48-11) 12-13-12 
                          
   The police did not have a reasonable, articulable suspicion of criminal activity to justify the investigatory detention, which was based on nothing more than a non-particularized racial description of the person sought. The parole warrant was not an intervening circumstance that sufficiently purged the taint from the unlawful detention. 
  New Expungement Law Permits Crime Expungement in 5 years if Exemplary Life and Public Interest Shown. In re Kollman Petition for Expungement __ NJ __ (A-126-10) July 9, 2012

Defendants seeking relief under the statute's new five-year pathway to expungement have the burden of proving why expungement of a criminal record is in the public interest. Because petitioner appears to have met that burden, the Court reverses the denial of his expungement application and remands to the trial court to assess the petitioner's character and conduct as of the date of its new ruling



E417 No automatic right for DWI defendant to inspect inside of police station. Mandatory 180 jail if driving while suspended while revoked for 2nd DWI even if DWI was prior to 2010.

NJ Laws Email Newsletter E417


March 7, 2013






  
  
www.njlaws.com 


 In This Issue:
No automatic right for DWI defendant to inspect inside of police station.

Mandatory 180 jail if driving while suspended while revoked for 2nd DWI even if DWI was prior to 2010.



  




 No automatic right for DWI defendant to inspect inside of police station State v Carrero  428 NJ Super. 419 (App. Div. 2012) State v Baluski  A-3232-11T3/ A-4319-11T3 (CONSOLIDATED) 

The court reviewed discovery orders separately issued in these two DWI cases authorizing defense counsel and/or defense experts to inspect and photograph rooms within the police stations where their respective clients provided breath samples on the Alcotest device in order to verify that the tests were properly administered.

In Carrero, such access was granted to help ascertain whether devices emitting radio frequency interference (RFI) had been located in the station within 100 feet of the testing area. In Baluski, such access was granted to help ascertain whether the interior layout of the station physically prevented defendant from being observed for the required twentyminutes before testing.

The court reversed the discovery orders because neither defendant has shown a reasonable justification to conduct the requested inspection.

The court concluded that Carrero's request is insufficient in light of the Supreme Court's binding legal and evidentiary determination in State v. Chun, 194 N.J. 54, 89 (2008), that the Alcotest is designed in a manner that is " well shielded from the impact of any potential RFI," and also in light of the State's countervailing security interests disfavoring routine civilian access to the interior of a police station.

The court concluded that Baluski's request is likewise insufficient because he has presented no affirmative basis to believe that an officer failed to observe him for the twenty pre-testing minutes required by Chun, supra, 194 N.J. at 79, and also in light of the State's countervailing security interests. Note- In the future, defense counsel can make a Evid. Rule 104 motion to inspect with affirmative certifications.

Mandatory 180 jail if driving while suspended while revoked for 2nd DWI even if DWI was prior to 2010. State v Carrigan428 NJ Super. 609 (App. Div. 2012) A-3751-11T1  11-15-12
    
N.J.S.A. 2C:40-26(b), which became effective on August 1, 2011, makes it a fourth-degree crime for a motorist to operate a vehicle at a time when his or her driver's license is suspended or revoked for a second or subsequent conviction for driving while intoxicated ("DWI") or refusal to submit to an alcohol breath test. Defendant was charged with that crime, upon being found driving a car in September 2011 while his license was suspended due to multiple prior DWI offenses.
    
The trial court initially dismissed the complaint, concluding that the application of N.J.S.A. 2C:40-26(b) to defendant violated ex post facto principles, essentially because his ongoing license suspensions had been imposed before the statute's effective date.
   
The Appellate Division reversed and concluded that a violation of N.J.S.A. 2C:40- 26(b) comprises a new offense based upon new conduct, and that the statute does not impose retrospective punishment for a prior offense. Hence, the law may be constitutionally applied to drivers with suspended licenses, such as defendant, who are caught driving after August 1, 2011, regardless of whether their DWI-based suspensions were imposed before that date.