2053 Woodbridge Avenue - Edison, NJ 08817

Monday, December 22, 2014

E457 1. Holiday Gift Idea! .....Gift Certificates for Wills or Power of Attorney 2. Next Events 3. Freezing Cold Hash Run 3 & 5 Mile Group Run & Party Sat. Jan. 3, 2015 10am 4. For unlicensed driver, can't get both fine and jail. State v. Carreon


NJ LAWS EMAIL NEWSLETTER E457
Kenneth Vercammen, Attorney at Law

December 9, 2014

Dear Ken,

1. Holiday Gift Idea! .....Gift Certificates for Wills or Power of Attorney
2. Next Events
3. Freezing Cold Hash Run 3 & 5 Mile Group Run & Party Sat. Jan. 3, 2015 10am
4. For unlicensed driver, can't get both fine and jail. State v. Carreon

1. Holiday Gift Idea! .....Gift Certificates for Wills or Power of Attorney

    During the Holiday & Christmas season, we often buy gifts for our family and friends. May we suggest a holiday gift, which truly shows how much you care? Purchase a Will Gift Certificate for loved ones. Secure their interests and make sure proper planning is done.
   
The Law Office of Kenneth Vercammen's Holiday special includes:
*A Simple Will without Trust
* Follow up legal advice
*A 2-year subscription to the NJ Laws Email News
- All for only $350.00! -
Call 732-572-0500 for the Gift Certificate

Details on Wills:

Power of Attorney:
A portion of your Will and Estate Planning is tax deductible for income tax purposes. Do your Estate Planning prior to December 31 and a portion of your fees can be written off on your taxes as Estate Tax Planning.

2. Next Events

December 13, 9:30 a.m. 5k, Jingle Bell Run, Lake Como, New Jersey
12/14 Toys for Tots 5K, 10am Freehold NJ FARC

 
December 16 WCTC 1450 am radio "NJ Law Talk with Ken Vercammen". Special guest star Adam L. Rothenberg, Esq. medical malpractice. This part of WCTC's 6pm-7pm Sound Advice radio. Listen on WCTC 1450am, or on the Internet at http://www.wctcam.com and now on I Heart Radio, just type in WCTC. To call in, dial 732-545-9282 or 888-545-9282 [WCTC]

12/17 Raritan Valley Pub crawl New Brunswick, NJ

3. Freezing Cold Hash Run 3 & 5 Mile Group Run & Party Sat. Jan. 3, 2015 10am

 
Dismal Swamp, Edison & Metuchen NJ- It's not called Dismal Swamp because it smells nice!
Start: Vidas Field Park, 215 Durham Ave. Metuchen, NJ 08840
Post Run Party: Hailey's Harp, 400 Main St., Metuchen, NJ 08840 [next to Metuchen Train Station] only .8 mile from start

       More powerful than the Mud runs, Warrior Runs and Swamp devil runs. Tired of the same old neighborhood roads, traffic, bad drivers? Join the off-road runners for a great and unusual training run.  Run in the woods and marsh of Edison. Hashing is not a race but a non-competitive group run which follows an off-road course laid out with baking flour. If you like trail running without the competition of a formal race, this will be a fun switch for you. This is a complex course through woods, grass, swamp and marsh.  Wear old running shoes.

       $20.00 TO RUN.   $25.00 DAY OF EVENT. 
Please bring a can food donation for the St. James Food Bank. A fun time is guaranteed! You must be over 21 years old to participate. No times are recorded.  A sense a humor is a must. Prizes and giveaways at the post race social! If you are unable to run you can volunteer. Volunteers receive free beer, food, free skull T-shirt, pirate backpack and skull bandanna. If you wish to volunteer call Kenneth Vercammen Esq. at 732-572-0500 or emailKenvnjlaw@yahoo.com

Freezing Cold Hash Volunteers Needed

       We are active in planning the Jan 3 Freezing Cold Hash Run. We are happy to join Hailey's Harp in Metuchen as the post race party bar since the Green Derby has closed. Volunteers receive free registration, free skull shirt, sandwiches on day they work and day of event. We are not providing sandwiches to mere runners, only to volunteers.

        Please email back if you can help and what you would like to do. We need someone that can borrow a pick up truck or van to bring over the boxes and decorations to Hailey's Harp, and on Sat Jan 3 run day. Jan. 3, 2015 Freezing Cold Hash run & Party. Volunteers needed call Ken V 732-572-0500 or email kenv@njlaws.comWe do not need to set up basement or garage since start will be in Metuchen.

 
        Sat Dec 20. 12-3 preliminary mark trail with surveyor tape if you don't want to know the course. Then 3pm-6pm, at Ken's Law office in Edison- set up gifts to runners & goodie bags and organize bottles donated, etc, Free Sandwiches ordered from Pino's Main St., Woodbridge then stop over Hailey's for tastee beverages. Ken V pays for drinks, ok to watch football
Sun Dec 21. 12-3 preliminary mark trail with surveyor tape if you don't want to know the course. Then 3pm-6pm, at Ken's Law office in Edison- set up gifts to runners & goodie bags and organize bottles donated, etc, Free Sandwiches ordered from Pino's Main St., Woodbridge then stop over Hailey's for tastee beverages. Ken V pays for drinks, ok to watch football
The following T-shirt pick ups, events are scheduled and we need volunteers:

 
         Fri Dec 26, 2014 10-4:45   T-shirt and goodie bag & skull wristband pick up Ken Vercammen Law Office 2053 Woodbridge Ave. [also need to register persons and set up goodie bags]

         Thursday Jan 1 2pm Mark trail with flour if you don't want to know the course. After 5pm Volunteers help bring decorations to Hailey's Harp and decorate

         Fri Jan 2 10-5:00   T-shirt and goodie bag & skull wristband pick up Ken Vercammen Law Office 2053 Woodbridge Ave [also need to register persons and set up goodie bags]

         Friday 2pm-4:45 individuals not running, they can help put flour the trail. [need volunteers to help mark trail]
noon-4 if individuals not running, they can help put flour the trail.

 
         Fri Jan 2 5:45-7:45   T-shirt and goodie bag & skull wristband pick up at Hailey's Harp 400 Main St., Metuchen
At 6pm help decorate the bar.

        Jan 3 Saturday Volunteers needed day of event -Must be at Start by 8am Vidas Park, Durham Ave. Metuchen, NJ Registration and set up 7:30-10am.

4. For unlicensed driver, can't get both fine and jail. State v. Carreon 437 NJ Super. 81 (App. Div. 2014)

 
       This appeal required the court to consider whether a never-licensed driver may be fined and sentenced to a custodial term under the penalty provisions of N.J.S.A. 39:3-10. Because the court agreed that the statute allows a fine or imprisonment but not both, even for drivers, who, like defendant, have never been licensed, the court-reversed defendant's sentence and remand to the Law Division for re-sentencing.

E456 1. Next WCTC 1450 am radio "NJ Law Talk with Ken Vercammen" set for December 2nd. Hon Glen Berman JSC retired. This part of WCTC's 6pm-7pm Sound Advice radio. 2. Recent case Supervising chemist can testify in rape case if they independently verified correctness of DNA results State v. Roach 219 NJ 58 (2014) 3. Defendant has burden to timely object to testimony by pathologist who did not perform the victim's autopsy State v. Williams 219 NJ 89 (2014) 4. Charity Races


NJ LAWS EMAIL NEWSLETTER E456
Kenneth Vercammen, Attorney at Law

November 25, 2014
Dear Ken,

E456
1. Next WCTC 1450 am radio "NJ Law Talk with Ken Vercammen" set for December 2nd. Hon Glen Berman JSC retired. This part of WCTC's 6pm-7pm Sound Advice radio.
2. Recent  case Supervising chemist can testify in rape case if they independently verified correctness of DNA results State v. Roach 219 NJ 58 (2014)
3. Defendant has burden to timely object to testimony by pathologist who did not perform the victim's autopsy State v. Williams 219 NJ 89 (2014)
4. Charity Races

 
1. Next WCTC 1450 am radio "NJ Law Talk with Ken Vercammen" set for December 2nd. Hon Glen Berman JSC retired. This part of WCTC's 6pm-7pm Sound Advice radio.

     Topic: Rutgers Bias case and Sayreville hazing case. Ken will be doing a radio show on WCTC radio at 6pm every Tuesday for 13 weeks 6-7pm. Each week a special guest will be joining the show to discuss important legal topics.
       Listen on WCTC 1450am, or on the Internet at http://www.wctcam.com
and now on I Heart Radio, just type in WCTC. To call in, dial 732-545-9282 or 888-545-9282 [WCTC]

2. Recent case Supervising chemist can testify in rape case if they independently verified correctness of DNA results State v. Roach 219 NJ 58 (2014)

     Defendant's confrontation rights were not violated by the testimony of the analyst who matched his DNA profile to the profile left at the scene by the perpetrator. Defendant had the opportunity to confront the analyst who personally reviewed and verified the correctness of the two DNA profiles that resulted in a highly significant statistical match inculpating him as the perpetrator. In the context of testing for the purpose of establishing DNA profiles.

3. Defendant has burden to timely object to testimony by pathologist who did not perform the victim's autopsy State v. Williams 219 NJ 89 (2014)

       Defendant's failure to object to the admission of the testimony on confrontation grounds and his decision to cross-examine the medical examiner constitute a waiver of his right of confrontation.

4. Charity Races

11/27   Thanksgiving Day - Princeton Trinity Church 5k 8am
11/28   Born to Run 5 mile - Freehold 11am
11/30   Navesink 15k & 5k - Middletown 10am Post race at Red Bank elks
12/6     Big Chill 5k Rutgers New Bruns 9:05
12/7     Jingle Bell Run/Walk for Arthritis 5k run/walk, 9:45 Metuchen NJ
12/7    12 noon-3pm Freezing Cold Hash meeting at Ken V office, set up gifts to runners & goodie bags and organize bottles donated, etc, beverages provided
12/13   9:30 a.m. 5k, Jingle Bell Run, Lake Como, New Jersey
12/14   Toys for Tots 5K, 10am Freehold NJ FARC 

Friday, December 19, 2014

E458 1. Happy Holidays and Merry Christmas 2. Court cannot consider Suppression Motion testimony at trial unless agreed by defendant State v. Gibson 3. Happy Holidays & Season's Greetings Worldwide 4. Next events


NJ LAWS EMAIL NEWSLETTER E458
Kenneth Vercammen, Attorney at Law

December 19, 2014
Dear Ken,


1.   Happy Holidays and Merry Christmas
2. Court cannot consider Suppression Motion testimony at trial unless agreed by defendant State v. Gibson
3.   Happy Holidays & Season's Greetings Worldwide
4.   Next events

1. Ken Vercammen, family & dog wish you Happy Holidays & Merry Christmas

 
         In the true spirit of the holiday and Christmas season, may we all be thankful and share in the hope for peace on earth and goodwill toward all.
         
          One of the pleasures of this holiday season is to thank many people for their friendship, goodwill and the pleasant association I have enjoyed with the hundreds of friends and professional people I have dealt with over the past several years. We sincerely appreciate our relationships and are thankful for the confidence many people have shown in us. I again want to take that make our business grow. Client recommendation is a very important source of new clients to us.


2. Court cannot consider Suppression Motion testimony at trial unless agreed by defendant State v. Gibson 219 NJ 227 (2014)
       
          Due to the fundamental differences between a pre-trial motion to suppress and a trial on the merits, the best practice is to conduct two separate proceedings. However, the motion record may be incorporated into the trial record if both parties consent and counsel are given wide latitude in cross-examination. Where the evidence from a pre-trial hearing is improperly admitted at the trial on the merits, the correct remedy is remand for a new trial.


3. Happy Holidays & Season's Greetings Worldwide

FROHE
WEIHNACHTEN
PRÓSPERO AÑO NUEVO
FRIEDEN
GLÃœCKLICHES NEUES JAHR
JOYEUX NOËL
PRETTIGE
KERSTDAGEN
GELUKKIG
NIEUWJAAR
BUON
NATALE
BONNIE ANNEE
HYVÄÄ JOULUA
Wesoly Siat, Bozega Narodzenia (Merry Christmas in Polish)

         We hope you have enjoyed the NJ Laws Newsletter, produced by our Law Office. We spend hundreds of hours each year researching relevant cases, new laws and creating website articles for our clients and readers. We mailed to clients our American Flag calendar during the first week of December.

        After December 27 we will have some additional American Flag calendars, USA flag hats and Ken V T shirts available. If you would like additional calendars and items to give to friends, family or co-workers, stop in our office reception room. Share the Flag and support the USA- America is #1.

4. Next events:

 
December 23 WCTC 1450 am radio "NJ Law Talk with Ken Vercammen". Special guest star Jason Komninos Esq. Municipal Court   This part of WCTC's 6pm-7pm Sound Advice radio.
        Listen on WCTC 1450am, or on the Internet at http://www.wctcam.com and now on I Heart Radio, just type in WCTC. To call in, dial 732-545-9282 or 888-545-9282 [WCTC]
WCTC  Podcast to listen to show is http://www.wctcam.com/NJ-Law.aspx


Sat. Jan. 3, 2015  Freezing Cold Hash Run 3 & 5 Mile Group Run & Party 10am  Dismal Swamp, Edison & Metuchen NJ- It's not called Dismal Swamp because it smells nice!
Register for 2015 at: http://www.active.com/metuchen-nj/running/races/freezing-cold-hash-dismal-swamp-2015
Start: Vidas Field Park, 215 Durham Ave. Metuchen, NJ 08840
Post Run Party: Hailey's Harp, 400 Main St., Metuchen, NJ 08840 [next to Metuchen Train Station] only .8 mile from start
                                 
Wednesday Jan 14, 2015 update Wills and Estate Planning- Free Seminar 12:15-1:00 PM and again 5:15pm-6pm.

Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

       Invited: Clients, Friends, Accountants, Business Owners, HR staff, Financial Planners, Insurance Agents, Nursing Home Staff, Hospital and Nursing Home Social Workers, Office on Aging Personnel, Senior Club Presidents, and Medicaid Workers,

        COST: Free if you pre-register by email.

Friday, November 14, 2014

E454 1. Kenneth Vercammen to Host Tuesday Night WCTC Talk Radio Show - NJ Law Talk 2. Recent Case: No warrant needed for DWI blood for DWI tickets issued before 2013 State v Jones 3. Next Events - WCTC at Buffalo Wild Wings 4. NJ Municipal Court Law Review Subscription

NJ LAWS EMAIL NEWSLETTER E454
Kenneth Vercammen, Attorney at Law

October 28, 2014
Dear Ken,
E454
1. Kenneth Vercammen to Host Tuesday Night WCTC Talk Radio Show - NJ Law Talk
2. Recent Case: No warrant needed for DWI blood for DWI tickets issued before 2013 State v Jones
3. Next Events - WCTC at Buffalo Wild Wings
4. NJ Municipal Court Law Review Subscription
1. Kenneth Vercammen to Host Tuesday Night WCTC Talk Radio Show - NJ Law Talk   

    Kenneth Vercammen has been selected as one of WCTC radio's new online personalities. Ken will join the station as the host of the Tuesday 6pm show "NJ Law Talk with Ken Vercammen." This part of WCTC's 6pm-7pm Sound Advice radio.
    Ken will be doing a radio show on WCTC radio starting Nov 11 at 6pm every Tuesday for 13 weeks 6-7pm. Each week a special guest will be joining the show to discuss important legal topics.
    The first show on November 11 will focus on Wills, Power of Attorney and Living Wills. Ken Vercammen is the author of the American Bar Association's upcoming book "Wills and Estate Administration".
   Listen on WCTC 1450am, or on the internet at http://www.wctcam.com and now on I heart radio, just type in WCTC. To call in, dial 732-545-9282 or 888-545-9282 [WCTC]

Other program topics include.....

Nov 18 Divorce / Matrimonial and Termination of Child Support upon Emancipation with Bill Brigiani

Dec 9 Medicaid and nursing home costs with William Isele

Traffic tickets and Municipal Court

Probate and Estate Administration

Personal Injury: and Car accidents

NJ Estate Tax and Trusts

Real Estate and Sale of house
We will be contacting area attorneys to join the show as experts in their field.
  
2. Recent Case: No warrant needed for DWI blood for DWI tickets issued before 2013 State v Jones__ NJ Super. __ (App. Div. 2014) A-0793-13T1   
     The Court granted the State leave to appeal from an order that suppressed the results of a blood sample taken without a warrant prior to Missouri v. McNeely 133 S. Ct. 1552 (2013), and now reverses. Defendant caused a multiple vehicle accident, resulting in personal injuries that required hospitalization. Emergency personnel took approximately thirty minutes to extricate the unconscious defendant from her vehicle and the police investigation took several hours.
     It is undisputed that the blood sample was obtained consistent with New Jersey law that existed at the time. The Court need not decide whether McNeely should be applied retroactively because the facts support a warrantless blood sample even if McNeely applies. Although McNeely rejected a per se exigency rule, it adhered to the totality of the circumstances analysis set forth in Schmerber v. California, 86 S. Ct. 1826, 1836 (1966), stating the metabolization of alcohol was an "essential" factor in the analysis. Further, the Court noted that the facts in Schmerber which, like here, included an accident, injuries requiring hospitalization, and an hours-long police investigation, were sufficient to justify a warrantless blood sample for use in an expert's comparison of DNA samples, a defendant's federal and state confrontation rights are satisfied so long as the testifying witness is qualified to perform, and did in fact perform, an independent review of testing data and processes, rather than merely read from or vouch for another analyst's report or conclusions.

3. Next Events - WCTC at Buffalo Wild Wings 

Wednesday, October 29 at 7:30pm
Halloween Pub Crawl  
Witches, Frankenstein, Freddy Krueger, and the "Real Housewives of New Jersey"... all very scary costumes for Halloween. Join your fellow club members on Wednesday October 29th as we parade around some "watering holes" in downtown New Brunswick after our normal club run. No prizes, just the opportunity to be silly and have fun!
https://www.facebook.com/events/667199540066076

Thursday, October 30 from 7:00pm - 9:00pm
Miller Lite/WCTC/Rutgers Football Pigskin Party
Buffalo Wild Wings 2241 Route 1 South, North Brunswick, New Jersey 08902
Celebrate the Rutgers Football team's home game with Bert Baron of WCTC and your chance to win Miller Lite and RU prizes!

4. NJ Municipal Court Law Review

     We publish the NJ Municipal Court Law Review print newsletter and include the recent criminal and traffic cases. I served as the Prosecutor for Cranbury Township, Middlesex County for nine years and started the newsletter to provide police officers and individuals involved in the criminal justice system with recent criminal and traffic cases. Annual subscription is only $20.00 per year. Attorneys will find the new cases helpful on issues of traffic law and search and seizure. Attorneys and Prosecutors who practice in the Municipal Court and Criminal Courts will want to continue to receive quarterly updates on cases, selected revised motor vehicle laws, and information on Municipal Court practice. To subscribe please send check for $20.00 payable to NJ Municipal Court Law Review
Editor's Note and Disclaimer:
All materials Copyright 2014. 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

Friday, November 07, 2014

E455 1. Veteran's Day 2. First WCTC 1450 am radio "NJ Law Talk with Ken Vercammen" set for November 11. This part of WCTC's 6pm-7pm Sound Advice radio. 3. Recent case Supervising chemist can testify in vehicular homicide if they independently verified correctness of blood test results State v. Michaels­­­­ 219 NJ 1 (2014) 4. DWI Update Thursday, November 13, 2014 3:00 pm - 4:00 pm 5. Charity races

NJ LAWS EMAIL NEWSLETTER E455
Kenneth Vercammen, Attorney at Law

November 5, 2014
Dear Ken,
E455
1. Veteran's Day
2. First WCTC 1450 am radio "NJ Law Talk with Ken Vercammen" set for November 11. This part of WCTC's 6pm-7pm Sound Advice radio.
 
3. Recent case Supervising chemist can testify in vehicular homicide if they independently verified correctness of blood test results State v. Michaels­­­­ 219 NJ 1 (2014)
4. DWI Update Thursday, November 13, 2014 3:00 pm - 4:00 pm
5. Charity races

 
1. Veteran's Day - Local military veterans will be holding services and other events this week to commemorate Veterans Day. The holiday, originally called Armistice Day, was created to honor veterans of World War I. The armistice effectively ending the war was signed on Nov. 11, 1918. In 1954, Congress passed legislation setting Nov. 11 as a day to honor American veterans of all wars.
    While in college I wrote my senior class project on my grandfather Albert Louis Vercammen who fought in WWI against the German army with the Belgian Army. I wrote how he single handedly defeated the Germans to make the world safe for democracy.
     Decades later, the Red Chinese stormed into North Korea in the Korean War and threatened Communism throughout Asia. The Army summoned my dad, Albert P. Vercammen, to go over and fight the invaders. He was on the Battleship New Jersey crossing the Pacific when the North Koreans and Chinese heard about the fierce Vercammen fighting spirit. The North Koreans started to retreat and wanted to surrender. The cowardly United Nations let them call it a truce. Again, the world was safe for democracy.
       While in Korea, Al Vercammen was promoted to Sergeant. I recall him saying Korea was the coldest place in the world. Also, unlike the TV show MASH that had hot nurses, the ones in Korea were all ugly. The black and white photos taken in Korea my Dad has show barren hills near their Spartan tents. It looked cold. I am glad I did not have to go over there. So as Americans, we thank our dads and other vets that got the call to duty [draft] and helped turn the tide against the Communists.
2. First WCTC 1450 am radio "NJ Law Talk with Ken Vercammen" set for November 11. This part of WCTC's 6pm-7pm Sound Advice radio.
         Ken will be doing a radio show on WCTC radio starting Nov 11 at 6pm every Tuesday for 13 weeks 6-7pm. Each week a special guest will be joining the show to discuss important legal topics.
       The first show on November 11 will focus on Wills, Power of Attorney and Living Wills. Ken Vercammen is the author of the American Bar Association's upcoming book "Wills and Estate Administration".
           Listen on WCTC 1450 AM, or on the Internet at http://www.wctcam.com
and now on I heart radio, just type in WCTC. To call in, dial 732-545-9282 or 888-545-9282 [WCTC]

3. Recent case Supervising chemist can testify in vehicular homicide if they independently verified correctness of blood test results State v. Michaels ­­­­219 NJ 1 (2014)
        Defendant's confrontation rights were not violated by the admission of Dr. Barbieri's report or his testimony regarding the blood tests and his conclusions drawn there from. Dr. Barbieri was knowledgeable about the testing process, independently verified the correctness of the machine-tested processes and results, and formed an independent conclusion about the results. Defendant's opportunity to cross-examine Dr. Barbieri satisfied her right to confrontation on the forensic evidence presented against her.


4. DWI Update Thursday, November 13, 2014 3:00 pm - 4:00 pm, Hon. Roy F. McGeady, P.J.M.C. Bergen County  Rochelle Park, NJ  Peter H. Lederman, Esq  Freehold, NJ  Kenneth Vercammen, Esq  Edison, NJ
      Part of CRIMINAL & MUNICIPAL LAW MEADOWLANDS SEMINAR 2014 Sponsored by the New Jersey Association for Justice (NJAJ) Hilton Meadowlands Hotel, East Rutherford, NJ More details at: https://www.nj-justice.org/index.cfm?pg=MeadowlandsCriminal
About New Jersey Association for Justice (NJAJ): The New Jersey Association for Justice (NJAJ) is a statewide association of over 2,400 attorney members in private practice and public service, paralegals, law clerks, and law students. NJAJ is dedicated to protecting New Jersey's families by working to preserve and strengthen the laws for safer products and workplaces, a cleaner environment and quality health care.
Hanging Out Your Shingle seminar
Fri, Nov 14 9:00 AM - 3:00 PM
Location: New Jersey Law Center One Constitution Square New Brunswick, NJ

5. Charity races
11/15    Asbury Park Kilt Run 11am Shoprite Wakefern is co-sponsor
11/16    After 11am preliminary mark Freezing Cold hash trail with surveyor tape.
11/22   Manasquan 5-mile 11am Shoprite Wakefern is co-sponsor party at taverns after race discount beer
11/23     After 11am preliminary mark Freezing Cold hash trail with surveyor tape
11/27     Thanksgiving Day - Princeton Trinity Church 5k 8am
11/28     Born to Run 5 mile - Freehold 11am
11/30     Navesink 15k & 5k - Middletown 10am Post race at Red Bank elks 

Monday, October 27, 2014

Fall Municipal Court Law Review 2014


              Supreme Court tells Police “Need a Warrant” for Phone Searches. Riley v. California 134 S. Ct. 999 (2014)
The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested

 2. DWI statute and Alcotest not unconstitutional. State v. Campbell 436 N.J. Super. 264 (App. Div. 2014)
Defendant appeals his conviction of drunk driving ("DWI") and the trial court's denial of declaratory relief on his claim of unconstitutionality.
Defendant's prosecution was based upon an Alcotest reading of his blood alcohol content ("BAC") above the per se level of .08 prohibited by N.J.S.A. 39:4-50(a). He argues that case law authorizing the admission of Alcotest BAC results when the prerequisites for such admissibility are shown by "clear-and-convincing" proof, coupled with the statute's conclusively incriminating treatment of a BAC at or above .08, improperly combine to relieve the State of its constitutional burden of proving a driver's guilt by the more rigorous standard of proof "beyond a reasonable doubt."
The Court rejects defendant's claim of unconstitutionality. The argument fails to distinguish the State's threshold burden of establishing the Alcotest's evidential admissibility from the State's ultimate burden at trail of establishing defendant's guilt of a per se offense beyond a reasonable doubt. Even if a pretrial motion to suppress the BAC results has been denied, a defendant can still present competing evidence or arguments at trial to persuade the court that the testing procedures were flawed and that his guilt has not been proven by the more stringent reasonable doubt standard.

3. Driving While Suspended Conviction Upheld Although DWI Conviction Vacated. State v. Sylvester __ N.J. Super. __ (App. Div. 2014) A-5192-12T4
N.J.S.A. 2C:40-26b makes it a fourth degree offense to drive while one's license is suspended or revoked for a second or subsequent conviction for driving a car while under the influence of alcohol (DWI). In a bench trial before the Law Division on this charge, defendant argued that her second DWI conviction had been voided ab initio by the municipal court when it granted her PCR petition two months after she was indicted for one count of violating N.J.S.A. 2C:40-26b. Thus, defendant argues the State cannot rely on this vacated second DWI conviction to meet its burden of proof under N.J.S.A. 2C:40-26b. The trial court rejected this argument. The court affirmed.
It is undisputed that at the time defendant committed this offense, she was aware her driver's license had been revoked by a presumptively valid second conviction for DWI. The court relied on State v. Gandhi, 201 N.J. 161, 190 (2010) to hold that a second DWI conviction vacated through PCR granted by a court after a defendant engages in conduct prohibited in N.J.S.A. 2C:40-26b, cannot be applied retroactively to bar a conviction under this statute.

4. Court Says Ban on Fake Government Documents Not Unconstitutional. State v. Borjas 436 N.J. Super. 375 (App. Div. 2014) (A-6292-11T2)
Defendant was found guilty by a jury of three counts of knowingly making false government documents, second- degree offenses proscribed by N.J.S.A. 2C:21-2.1(b), and four counts of knowingly possessing false government documents, fourth-degree offenses proscribed by N.J.S.A. 2C:21-2.1(d). The incriminating items were created or stored in hard drives on computers at defendant's residence. The items were discovered by law enforcement officers pursuant to a search warrant, although the officers found no printouts of the false items.
The court rejected defendant's argument that subsections (b) and (d) of N.J.S.A. 2C:21-2.1 are unconstitutionally overbroad because they allegedly infringe too much upon protected forms of expression. In doing so, the court does not foreclose a future "as-applied" challenge to the statute by an artist, student, or other person who, unlike the present defendant, makes or stores false images for benign reasons involving constitutionally protected speech.
Additionally, the court rejects defendant's argument that the statute is void for vagueness because it lacks an express element requiring the State to prove a defendant's specific intent to use the false items for illicit purposes. The court also rejects defendant's criticisms of the trial judge's jury instruction defining the term "document" under the statute to encompass items or images stored on a computer. The instruction is consistent with the broader meaning associated with the term "document" in common modern usage.

5. Testimony for State by Defendant’s Investigator Violated Right to Counsel. State v. Nunez 436 NJ Super. 70 (App. Div. 2014)
The court reverses defendant's murder conviction because the trial judge permitted the State to bolster its case by calling defendant's investigator to testify to a prior consistent statement of the State's only eyewitness in violation of defendant's right to counsel.

6. Judge must Recuse from case if involved as prosecutor. State v. Presley 436 N.J. Super. 440 (App. Div. 2014)
In State v. McCann, 391 N.J. Super. 542 (App. Div. 2007), the court announced a prospective "bright-line rule" that called for invalidating search warrants issued by a judge who was bound to recuse himself or herself based on a prior relationship. Upon being advised he had prosecuted one of the defendants when he was an assistant prosecutor, the trial judge recused himself. So, the question here is not one of recusal but of remedy. Defendants here ask us to apply McCann to the following facts: the judge prosecuted only one of the defendants; no defendant alleges the judge was biased or aware of the disqualifying facts when he issued the warrants or that there was insufficient probable cause for their issuance; and finally, the defendant prosecuted by the judge withheld the disqualifying facts while appearing before the judge on unrelated matters for "strategic" reasons for over a year. The court concludes that McCann is distinguishable; the remedy sought by defendants will not serve the interests of the Code of Judicial Conduct; and the appropriate remedy should be determined by what is "required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice." DeNike v. Cupo, 196 N.J. 502, 519 (2008).


7. Protective sweep permitted where shots fired in high crime neighborhood. State v. Gamble 218 N.J 412 (2014) 
Under the totality of the circumstances, which provided the officers with a reasonable and articulable suspicion that defendant was engaged in criminal activity, the investigatory stop and protective sweep of the passenger compartment of the van were valid.

8. No warrant needed for DWI blood for DWI tickets issued before 2013
State v Jones __ NJ Super. __ (App. Div. 2014) A-0793-13T1
The Court granted the State leave to appeal from an order that suppressed the results of a blood sample taken without a warrant prior to Missouri v. McNeely  133 S. Ct. 1552 (2013), and now reverses. Defendant caused a multiple vehicle accident, resulting in personal injuries that required hospitalization. Emergency personnel took approximately thirty minutes to extricate the unconscious defendant from her vehicle and the police investigation took several hours.
It is undisputed that the blood sample was obtained consistent with New Jersey law that existed at the time. The Court need not decide whether McNeely should be applied retroactively because the facts support a warrantless blood sample even if McNeely applies. Although McNeely rejected a per se exigency rule, it adhered to the totality of the circumstances analysis set forth in Schmerber v. California,  86 S. Ct. 1826, 1836 (1966), stating the metabolization of alcohol was an "essential" factor in the analysis. Further, the Court noted that the facts in Schmerber which, like here, included an accident, injuries requiring hospitalization, and an hours-long police investigation, were sufficient to justify a warrantless blood sample for use in an expert’s comparison of DNA samples, a defendant’s federal and state confrontation rights are satisfied so long as the testifying witness is qualified to perform, and did in fact perform, an independent review of testing data and processes, rather than merely read from or vouch for another analyst’s report or conclusions.


9. Supervising chemist can testify in vehicular homicide if they independently verified correctness of blood test results State v. Michaels __ NJ__ (2014) (A-69-12)
Defendant’s confrontation rights were not violated by the admission of Dr. Barbieri’s report or his testimony regarding the blood tests and his conclusions drawn therefrom. Dr. Barbieri was knowledgeable about the testing process, independently verified the correctness of the machine-tested processes and results, and formed an independent conclusion about the results. Defendant’s opportunity to cross-examine Dr. Barbieri satisfied her right to confrontation on the forensic evidence presented against her.

10 Supervising chemist can testify in rape case if they independently verified correctness of DNA results State v.  Roach __ NJ __ (2014)  (A-129-11)
     Defendant’s confrontation rights were not violated by the testimony of the analyst who matched his DNA profile to the profile left at the scene by the perpetrator. Defendant had the opportunity to confront the analyst who personally reviewed and verified the correctness of the two DNA profiles that resulted in a highly significant statistical match inculpating him as the perpetrator. In the context of testing for the purpose of establishing DNA profiles.

11. Defendant has burden to timely to object to testimony by pathologist who did not perform the victim’s autopsy State v. Williams __ NJ__ (2014) (A-5-12)
Defendant’s failure to object to the admission of the testimony on confrontation grounds and his decision to cross-examine the medical examiner constitute a waiver of his right of confrontation.

12

13 For unlicensed driver, can’t get both fine and jail. State v. Carreon __ NJ Super. __ (App. Div. 2014) A-5501-12T1
This appeal required the court to consider whether a never-licensed driver may be fined and sentenced to a custodial term under the penalty provisions of N.J.S.A. 39:3-10. Because the court agreed that the statute allows a fine or imprisonment but not both, even for drivers, who, like defendant, have never been licensed, the court-reversed defendant's sentence and remand to the Law Division for resentencing.

Old  Index:
              Supreme Court tells Police “Need a Warrant” for Phone Searches. Riley v. California
              DWI statute and Alcotest not unconstitutional. State v. Campbell
              Driving While Suspended Conviction Upheld Although DWI Conviction Vacated. State v. Sylvester
              Court Says Ban on Fake Government Documents Not Unconstitutional. State v. Borjas
              Testimony for State by Defendant’s Investigator Violated Right to Counsel. State v. Nunez
              Abuse and Neglect Upheld Where Father Let Children Ride with Drunk Mother. New Jersey Division of Child Protection and Permanency v. J.A
              School Bus Driver Who Left Young Child on Bus Committed Act of Neglect. New Jersey Department of Children and Families v. R.R.
              Criminal Charge where later civil violation can be expunged. In the Matter of the Expungement Application of P.H.
              Judge must Recuse from case if involved as prosecutor. State v. Presley
               Protective sweep permitted where shots fired in high crime neighborhood. State v. Gamble
              No warrant for DWI blood for DWI tickets issued before 2013. State v, Jones
              Expungement of Single Judgment Encompassing Multiple Crimes Denied. I/M/O The Expungement of the Criminal Records of G.P.B.,
13. Supervising chemist can testify in vehicular homicide if they independently verified correctness of blood test results State v. Michaels

14. Supervising chemist can testify in rape case if they independently verified correctness of DNA results State v.  Roach
15. Warrantless DWI blood taking allowed where multiple vehicle accident and hospitalization State v Jones
   16. Defendant has burden to timely to object to testimony by pathologist who did not perform the victim’s autopsy State v. Williams
17 For unlicensed driver, can’t get both fine and jail. State v. Carreon



Removed from Fall and will use in Winter, 2015

6. Abuse and Neglect Upheld Where Father Let Children Ride with Drunk Mother. New Jersey Division of Child Protection and Permanency v. J.A. 436 N.J. Super. 61 (App. Div. 2014)
In this appeal, the court concluded that a parent fails to exercise the minimum degree of care required by N.J.S.A. 9:6-8.21(c)(4) when permitting children to be passengers in a vehicle driven by a person who appears to be inebriated.

7. School Bus Driver Who Left Young Child on Bus Committed Act of Neglect. New Jersey Department of Children and Families v. R.R. 436 NJ Super. 53 (App. Div. 2014)
Appellant was a school bus driver. At the end of her route she did not visually inspect the bus to make sure there were no children left on board, as required by N.J.S.A. 18A:39-28. Instead, she had relied upon a school bus aide's representation there were not any children on the bus, even though in the past the driver had found the aide to be unreliable. In fact, a five-year old was left on board after the bus driver left for the day. The child was not discovered for fifty-five minutes.
The court affirmed the finding of the Assistant Commissioner of the Office of Performance Management and Accountability of the Department of Children and Families that the bus driver had engaged in willful and wanton conduct in violation of N.J.S.A. 9:6-8.21(c)(4)(b), for relying upon an undependable aide's representation and not personally inspecting the bus herself to determine if any children remained on board.
8. Criminal Charge where later civil violation can be expunged. In the Matter of the Expungement Application of P.H. 436 N.J. Super. 427 (App. Div. 2014)
The court considered the application of the expungement statute, N.J.S.A. 2C:52-1 to -32, where petitioner was charged with a fourth degree offense but ultimately agreed to a violation of a statute for which he paid a civil penalty. Petitioner requested expungement of all criminal records, which was granted by the trial judge; records of the civil violation and the file of the NJSPCA were not subject to expungement.
The State appealed, advancing numerous reasons for reversal, primarily arguing the final disposition controls whether expungement relief is available. Maintaining the initial criminal charges were part of the same file that was disposed of through a plea agreement-allowing defendant to pay a civil penalty, the State asserts expungement cannot be permitted. The court disagreed and concluded petitioner was not convicted and the final disposition was not a plea agreement. Rather, the criminal charges were dismissed. Accordingly, expungement was permitted under N.J.S.A. 2C:52-6(a).

              Expungement of Single Judgment Encompassing Multiple Crimes Denied. I/M/O The Expungement of the Criminal Records of G.P.B., 436 NJ Super. 48 (App. Div. 2014)
The court held that expungement is not permitted by N.J.S.A. 2C:52-2(a), which allows expungement for a person convicted of "a crime," where the petitioner had pleaded guilty to multiple briberies over the course of two days even though those crimes had a single purpose and even though they were memorialized in a single judgment of a conviction. 


Editorial Assistance by Jillian Spielman, 3rd year law student, New York Law School.


Photos: Happy Hour July 18  NJSBA President Paris Eliades was among the hundreds of persons at the Summer Happy Hour at Bar Anticipation. The St. Patrick Happy Hour is March 13, 2015.

Seminar: Handling Drug DWI and Serious Motor Vehicle Cases in Municipal Court
Monday, October 27, 2014 5:30PM-9:00PM
NJ Law Center, New Brunswick

Speakers: Kenneth A.  Vercammen, Esq., Past Municipal court Attorney of the Year
William G. Brigiani, Esq., Past President Middlesex County Bar
Hon. William D. Feingold, Esq.,  North Brunswick
John Menzel, Esq., Past Chair Municipal Court Section
Norma M. Murgado, Esq., Chief Prosecutor- Elizabeth
Assistant Prosecutor-Woodbridge
Joshua H. Reinitz, Esq., Vice Chair Municipal Court Section
For registration, contact NJ Institute for Continuing Legal Education 732-214-8500
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Ave.
Edison, NJ, 08817
732-572-0500