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, 3^rd 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

E4531. What is Hazing in NJ? 2. What is rape in NJ and sexual assault in NJ? 3. Metuchen Fair rescheduled for Saturday Oct. 18 10-4

E453 1. What is Hazing in NJ?   2. What is rape in NJ and sexual assault in NJ? 3. Metuchen Fair rescheduled for Saturday Oct. 18 10-4  1.What is Hazing in NJ? 2C:40-3. Hazing ; aggravated hazing a. A person is guilty of hazing a disorderly persons offense, if, in connection with initiation of applicants to or members of a student or fraternal organization, he knowingly or recklessly organizes, promotes, facilitates or engages in any conduct, other than competitive athletic events, which places or may place another person in danger of bodily injury. b. A person is guilty of aggravated hazing a crime of the fourth degree, if he commits an act prohibited in subsection a. which results in serious bodily injury to another person. 2C:40-4. Consent not available as defense to hazing a. Notwithstanding any other provision of Title 2C of the New Jersey Statutes to the contrary, consent shall not be available as a defense to a prosecution under this Act. b. More information on website www.njlaws.com 2. What is rape in NJ and sexual assault in NJ 2C:14-2? New Jersey calls rape a sexual assault. Below are the NJ statutes on sexual assault. Below are the NJ statutes on sexual assault 2C:14-2  Sexual Assault   a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1) The victim is less than 13 years old; (2) The victim is at least 13 but less than 16 years old; and (a) The actor is related to the victim by blood or affinity to the third degree, or (b) The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status, or    (c)The actor is a resource family parent, a guardian, or stands in loco parentis within the household; (3) The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape; (4) The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object; (5) The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion; (6) The actor uses physical force or coercion and severe personal injury is sustained by the victim; (7) The victim is one whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent. b. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1)The actor uses physical force or coercion, but the victim does not sustain severe personal injury;    2C:14-1  Definitions in sexual assault cases. 2C:14-1.  Definitions.  The following definitions apply to this chapter: a. "Actor" means a person accused of an offense proscribed under this act;   b. "Victim" means a person alleging to have been subjected to offenses proscribed by this act;   c. "Sexual penetration" means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction.  The depth of insertion shall not be relevant as to the question of commission of the crime;   d. "Sexual contact" means an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present;   e. "Intimate parts" means the following body parts:  sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person;   f. "Severe personal injury" means severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain;   g. "Physically helpless" means that condition in which a person is unconscious or is physically unable to flee or is physically unable to communicate unwillingness to act;   h. (Deleted by amendment, P.L.2011, c.232)   i. "Mentally incapacitated" means that condition in which a person is rendered temporarily incapable of understanding or controlling his conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent, or due to any other act committed upon that person which rendered that person incapable of appraising or controlling his conduct;   j. "Coercion" as used in this chapter shall refer to those acts which are defined as criminal coercion in section 2C:13-5(1), (2), (3), (4), (6). and (7), amended 1983, c.249, s.1; 1989, c.228, s.2; 2011, c.232, s.3.  Indictable Criminal Penalties   [Felony type] [ Superior Court]                                      Jail potential         Fine max           Probation          1st degree       10- 20 years              $200,000         [presumption of jail]          2nd degree      5-10 years                 $150,000         [presumption of jail]          3rd degree       3- 5 years                 $15,000           1 year- 5 year          4th degree      0- 18 months             $10,000           1 year- 5 year          There are many other penalties that the court must impose in criminal case. There are dozens of other penalties a court can impose, depending on the type of matter. Readwww.njlaws.com/jail_for_crimes_and_disorderly_conduct.html Sayreville football player also charged with 2C:33-1. Riot    a. Riot. A person is guilty of riot if he participates with four or more others in a course of disorderly conduct as defined in section 2C:33-2a: (1) With purpose to commit or facilitate the commission of a crime; (2) With purpose to prevent or coerce official action; or (3) When he or any other participant, known to him, uses or plans to use a firearm or other deadly weapon.      Riot, if committed under circumstances set forth in paragraph (3) is a crime of the third degree. Otherwise, riot is a crime of the fourth degree. b. Failure of disorderly persons to disperse upon official order. Where five or more persons are participating in a course of disorderly conduct as defined in section 2C:33-2 a. likely to cause substantial harm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a disorderly persons offense. 2C:13-2.  Criminal Restraint A person commits a crime of the third degree if he knowingly: a. Restrains another unlawfully in circumstances exposing the other to risk of serious bodily injury; or b. Holds another in a condition of involuntary servitude.       The creation by the actor of circumstances resulting in a belief by another that he must remain in a particular location shall for purposes of this section be deemed to be a holding in a condition of involuntary servitude. In any prosecution under subsection b., it is an affirmative defense that the person held was a child less than 18 years old and the actor was a relative  or legal guardian of such child and his sole purpose was to assume control of  such child. 3. Metuchen Fair rescheduled for Saturday Oct. 18 10-4

E452 1. Testimony for State by Defendant's Investigator Violated Right to Counsel. State v. Nunez 436 NJ Super. 70 (App. Div. 2014) 2. Judge must Recuse from case if involved as prosecutor. State v. Presley 436 N.J. Super. 440 (App. Div. 2014) 3. Protective sweep permitted where shots fired in high crime neighborhood. State v. Gamble 218 N.J 412 (2014) 4. Free Office Space for New Attorney and go to Court & Mentor program- Edison, NJ available October 1 5. Next community events 6. Welcome our Fall 2015 Law Clerks

1.   Testimony for State by Defendant's Investigator Violated Right to Counsel. State v. Nunez 436 NJ Super. 70 (App. Div. 2014) 2.   Judge must Recuse from case if involved as prosecutor. State v. Presley 436 N.J. Super. 440 (App. Div. 2014) 3.   Protective sweep permitted where shots fired in high crime neighborhood. State v. Gamble 218 N.J 412 (2014) 4.   Free Office Space for New Attorney and go to Court & Mentor program- Edison, NJ available October 1 5.   Next community events 6.   Welcome our Fall 2015 Law Clerks   1. 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. 2. 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). 3. 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. 4. Free Office Space for New Attorney and go to Court & Mentor program- Edison, NJ available October 1               Kenneth Vercammen's Law Office has a space sharing opportunity for new lawyer or recent unemployed attorney to get experience and go to court and learn NJ Law office procedures. This is a mentoring experience where you can learn NJ Law Office Procedure.            Attorney will be provided with use of desk on main floor, plus if needed private office space in furnished basement to start their practice, rent-free. They can see clients in first floor office rooms. In return they will handle municipal court appearances, Telephone communications with courts, prosecutors, clients, etc, Will signings and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week.            Go to court and get court experience. Excellent opportunity to jump-start your career. You will get to represent people in Municipal Courts in Middlesex, Union and Monmouth County and meet the top Prosecutors and Judges. Must be admitted in NJ and have a car.            Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans and public defender clients. Follow up contact calls with clients, courts, prosecutors and bar associations.   Excellent mentoring position for the right attorney. Are you hardworking and aggressive?  Visit our website:www.njlaws.com to learn about our office. The following is included with office use: Desk space Reception room for clients and use as Bona Fide Office You can copy and use our Complaints, Motions, Form Letters and Pleadings. Use our marketing books, marketing CDs, Criminal, Municipal Court and Elder law audiotapes and video library now located in basement Use of our computer forms Motions, Complaints, and Form letters Ability to use a file cabinet in basement to store your old files Lighting/ Utilities Bathroom Supplies Landscaping / Snow Removal Valuable advice Hot water, municipal water/sewer charge paid If interested, fax, email or mail a resume and cover letter. KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817(Phone) 732-572-0500 (Fax) 732-572-0030   vercammenlaw@njlaws.com 5. Next community events  10/4   Shillelagh 5K Bar A Lake Como, New Jersey  10/5   Jersey Shore Half Marathon & Lighthouse 5k   Sandy Hook 9am 10/6   North B Wills & Power of Attorney Seminar           North Brunswick Chapter #3885 of AARP   1:30           North Brunswick Senior Center, 15 Linwood Place, North Brunswick, NJ 08902           If someone you know does not have a Will, please have them contact us. 10/8    NJSBA Open house 10/11  Race to Outrun Hunger Roosevelt Park 10/11  Metuchen Fair 10/12  East Brunswick 5k & 10k 1pm RVRR well run event www.ebrr.org, post race we go to Lori's  Lakeside on Farrington Lake, North Brunswick 6. Welcome our Fall 2015 Law Clerks: Bangi Laki Northeastern Kerin Sajjad Rutgers Newark James Gomes   William Paterson Daniel Park John Jay       Donte Bronaugh     Rutgers Greg Burton St. Joes High        At the request of several placement offices, we have established the volunteer Law Clerk Internship Program and Public Defender Internship. I serve as a mentor and reference on behalf of students who finish the program. We show students how to communicate with clients, set up litigation files, obtain police reports, and the importance of marketing. We remain available after their 12-week internship for references and questions. I have a feeling of satisfaction helping the students. Someday, when these students become the Chief Justice, they will remember the lawyer who helped them out in the beginning. This personal mentor/internship program has given me friendship and a feeling of accomplishment. We also bridge the gap between school placement offices and the real world by providing career advice and suggestions.          If any other students are also interested, please have them send us a cover letter and resume immediately.         Editorial Assistance provided by Donna DeFrancisco.  Ms. DeFrancisco is currently participating in our Fall Internship Program.

E438 1. Points in Motor Vehicle Violations. 2. Defendant can be entitled to Adjournment to Select own Counsel. 3. Juvenile adjudication does not bar adult expungement.

2014 update Wills and Estate Planning Seminar materials

1. Federal Estate Tax exemption now permanently increased so no tax for Estates 

under $5,340,000, and will be adjusted annually for inflation. However, New Jersey

taxes estates over $675,000.

2. Gifts permitted without Federal Estate & Gift tax was increased to $14,000 per

person.

3. We recommend Self- Proving Wills since witnesses often move or pass away

4. Non-formal writings could be Wills under the New Probate Law

5. Undue influence: Recent cases can void Will signed under suspicious circumstances

6. NJ Inheritance tax

7. Power of Attorney

8. Federal Health Privacy Law (HIPAA)

9. Competency required to sign a Will or Power of Attorney

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

In this issue:

1. Points in Motor Vehicle Violations

2. Defendant can be entitled to Adjournment to Select Own Counsel.

3. Juvenile adjudication does not bar adult expungement.

1. Points in Motor Vehicle Violations

Motor vehicle violations and criminal charges can cost you. If you plead guilty 

by mail or in court for almost all traffic tickets, you will have to pay fines in

court and will later receive points on your driver's license. Both the DMV/MVC and

your car insurance company will impose surcharges and eligibility points for one-three

years.

N.J.A.C. 13:19-10.1 Point Assessment

Any person who is convicted of any of the following offenses, including offenses

 committed while operating a motorized bicycle, shall be assessed points for each

conviction in accordance with the following schedule:

N.J.S.A. Statutory Violation             Description                            

                Points

39:4-14.3             Operating motorized bicycle on restricted highway         

              2

39:4-14.3d            More than 1 person on a motorized bicycle.                

                    2

39:4-35               Failure to yield to pedestrian in crosswalk.              

                     2

39:4-36               Failure to yield to pedestrian or passing a vehicle yielding

to

pedestrian in crosswalk                                                         

               2

39:4-41               Driving through safety zone.                              

                                2

39:4-52               Racing on Highway                                         

                             5

39:4-55               Improper action or omission on grades and curves          

           2

39:4-57               Failure to observe directions of officer.                 

                        2

39:4-66               Failure to stop before crossing sidewalk                  

                     2

39:4-66.1             Failure to yield to pedestrians or vehicles while entering

 or

leaving highway                                                                 

                 2

39:4-66.2             Driving on private property to avoid traffic signal or stop

sign     2

39:4-71               Improper driving on sidewalk                              

                               2

39:4-80               Failure to obey direction of officer                      

                        2

39:4-81               Failure to observe traffic signal                         

                            2

39:4-82               Failure to keep right                                     

                                       2

39:4-82.1             Improper operating of vehicle on divided highway or divider

      2

39:4-83               Failure to keep right at intersection                     

                          2

39:4-84               Failure to pass right of vehicle proceeding in opposite direction

  5

39:4-85               Improper passing on right or off roadway                  

                 4

39:4-85.1             Wrong way on one-way street                               

                      2

39:4-86               Improper passing, in "No Passing" zone                    

                 4

39:4-87               Failure to yield to overtake vehicle                      

                          2

39:4-88               Failure to observe traffic lanes                          

                                    2

39:4-89               Tailgating                                                

                                           5

39:4-90               Failure to yield at intersection                          

                                    2

39:4-90.1             Failure to use proper entrances to limited access highway 

             2

39:4-91              Failure to yield to emergency vehicle                      

                    2

39:4-96               Reckless driving                                          

                               5

39:4-97               Careless driving                                          

                                        2

39:4-97a             Destruction of agricultural or recreational property       

                2

39:4-97.1             Slow speed blocking traffic                               

                                  2

39:4-98               or Speeding up to 14 mph above limit                      

             2

39:4-99               Speeding 15-29 mph above limit                            

                     4

Speeding 30 mph or more above limit                                             

   5

39:4-105             Failure to stop at traffic light                           

                                     2

39:4-115             Improper turn at traffic light                             

                                   3

39:4-119             Failure to stop at flashing red signal                     

                         2

39:4-122             Failure to stop for police whistle                         

                                2

39:4-123             Improper right or left turn                                

                                    3

39:4-124             Improper turn: from approved turning course                

               3

39:4-125               Improper U-turn                                          

                                      3

39:4-126             Failure to give proper signal                              

                         2

39:4-127             Improper backing or turn in street                         

                      2

39:4-127.1            Improper crossing of railroad grade crossing              

           2

39:4-127.2            Improper crossing of bridge                               

                      2

39:4-128             Improper crossing of railroad grade                        

               2

39:4-128.1            Improper passing of school bus                            

                               5

39:4-128.4            Improper passing of frozen dessert truck                  

                  4

39:4-129             Leaving scene of accident- No injuries                     

                    2

39:4-129             Personal Injury                                            

                                      8

39:4-144             Failure to observe of stop or yield signs                  

                    2

39:5D-4              Moving violation out-of-state                              

                       2

27:23-29             Moving against traffic-NJ Turnpike, Garden State Pkwy. and

Atlantic City Expressway                                                        

        2

27:23-29             Improper passing-NJ Tpke., Garden State Pkwy. and Atlantic

City Expressway                                                                 

               4

27:23-29             Unlawful use of median strip-NJ Tpke., Garden State Pkwy.

and Atlantic City Expressway                                                   2

39:3-20               Operating Constructor vehicle in excess of 30 mph         

             3

DWI, Driving While Suspended, No insurance, unlicensed driver and other violations

also have both MVC/DMV surcharges and car insurance surcharges/ increases. More 

details at www.njlaws.com

Recent Cases:

2. New cases: Defendant can be entitled to Adjournment to Select Own Counsel. State

v Kates __ NJ __ (2014) (A-40-12)

The judgment of the Appellate Division is affirmed substantially for the reasons

 expressed in Judge Ostrer's opinion below. Deprivation of a defendant's right to

counsel of choice is found where, as here, a trial court denies an adjournment without

properly considering the relevant factors or abuses its discretion in doing so.

The Appellate Division held Defendant Entitled to Adjournment to Select Own Counsel.

State v. Kates 426 NJ Super. 32 (App. Div. 2012)

The Appellate Division concluded the trial court mistakenly exercised its discretion

in denying defendant a continuance to enable him to retain counsel of his choice,

after he learned on the eve of trial that the assistant deputy public defender who

had been representing him was about to deployed for active military service. Although

the right to counsel of choice is not absolute and may be balanced against the court's

interest in managing its calendar, the trial court failed to weigh the appropriate

factors governing the discretionary decision whether to grant the requested continuance.

The availability of competent counsel not of defendant's choice was an insufficient

basis for denying the continuance. As deprivation of counsel of choice is a structural

error not subject to harmless error analysis, reversal of defendant's conviction

 and a new trial is mandated.

3. Juvenile adjudication does not bar adult expungement. In the Matter of the Expungement

Application of D.J.B. __ NJ __ (2014)

Based on its language and legislative history, N.J.S.A. 2C: 52-4.1(a) applies only

to the expungement of juvenile adjudications and does not transform a juvenile adjudication

into a "crime" that would bar a later attempt to expunge an adult conviction under

N.J.S.A. 2C:52-2.

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