E467
1. NJ Supreme Court Holds Municipal Court improperly admitted into evidence Drinking Driving Questionnaire (DDQ) and Drinking Driving Report.
2. Real Estate Sales - Time to Prepare your Home for Sale
3. Join the Edison Community Pool Now!
4. Available Immediately For Rent Coffee Shop/Deli
2045 Woodbridge Avenue, Edison, NJ 08817
5. Wills For Heroes- Free Basic Will or Power of Attorney for Police Officers
6. Next Seminars and Charity running events
1. NJ Supreme Court Holds Municipal Court improperly admitted into evidence Drinking Driving Questionnaire (DDQ) and Drinking Driving Report. State v. Kuropchak __ NJ __ (A-41-13 )
The municipal court's admission of the Alcotest results without the foundational documents required by State v. Chun, 194 N.J. 54 (2009) was error. Further, because the DDQ and DDR contained inadmissible hearsay, which may have unduly influenced the municipal court's credibility findings, the matter is remanded for a new trial.
HELD: The municipal court's admission of the Alcotest results without the foundational documents required by State v. Chun, 194 N.J. 54 (2009) was error. Further, because the DDQ and DDR contained inadmissible hearsay, which may have unduly influenced the municipal court's credibility findings, the matter is remanded for a new trial.
1. If a municipal court convicts a defendant of DWI, the defendant must first appeal to the Law Division. The Law Division reviews the municipal court's decision de novo, but defers to credibility findings of the municipal court.
Appellate courts should defer to trial courts' credibility findings. Occasionally, however, a trial court's findings may be so clearly mistaken that the interests of justice demand intervention and correction.
2. A court may convict a defendant of DWI if she registers a blood alcohol level of 0.08% or higher. This finding of guilt is subject to proof of the Alcotest's reliability. The operator must observe the subject for twenty minutes. After twenty minutes, the Alcotest machine automatically conducts a blank air test to determine if there are any chemical interferents in the room. Additionally, a control test is conducted; if the Alcotest is working properly, that control test will generate a result between 0.095 and 0.105. The State must also admit certain foundational documents: (1) the most recent calibration report prior to a defendant's test, with part I--control tests, part II--linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard solution report prior to a defendant's test; and (3) the certificate of analysis of the 0.10 simulator solution used in a defendant's control tests to prove that the Alcotest was in working order.
3. Here, the last semi-annual calibration was completed on January 12, 2010, with simulator solution control lot 09D065. The solution control lot for the control test performed prior to and following the three rounds of breath tests performed on defendant was solution control lot 08J060. Under Chun, the State was required to provide the Certificate of Analysis of the 0.10 Simulator Solution used in defendant's control test. The State, however, mistakenly admitted the Certificate of Analysis for the semi-annual simulator solution control lot 09D065 instead. Additionally, the most recent Calibrating Unit New Standards Solution Report was not admitted into evidence during the State's case. Given that the foundational documents were not admitted into evidence, the State presented no evidence as to the reliability or accuracy of the Alcotest results and, therefore, defendant's conviction of per se intoxication was improper.
4. Defendant contends that the DDR and the DDQ were admitted into evidence in violation of the Confrontation Clause. A person charged with a criminal offense has the right to confront his accusers. Officer Serritella's documentation of the incident must be considered the recordation of testimonial statements because his observations were made to establish that defendant was driving while intoxicated. Since the officer testified at trial and was extensively cross-examined, the Confrontation Clause was not violated by the admission of the DDR and DDQ.
5. As for defendant's contention that the DDR and DDQ are hearsay not subject to any exception, the Court observes that hearsay is inadmissible unless it fall into one of certain recognized exceptions. To qualify as a business record, a writing must: (1) be made in the regular course of business, (2) within a short time of the events described in it, and (3) under circumstances that indicate its trustworthiness. Foundational reports for breath testing, with certain qualifications, are admissible under the business record exception to the hearsay rule. Here, however, the DDR contains a narrative account of what the officer saw at the scene and includes factual statements, observations, and the officer's opinions. Thus, the DDR contains inadmissible hearsay. Although the DDQ also does not appear initially to constitute hearsay, it incorporates by reference the DWI report in the "remarks" section and the DWI report, in turn, contains several inadmissible opinions. The DDQ's content thus also rises to the level of inadmissible hearsay and must be excluded. Therefore, the DDR and the DDQ were inadmissible hearsay outside the scope of the business records exception.
6. Here, the municipal court heard defendant's testimony concerning the events on the day of the incident, as well as the testimony of Officer Serritella. The court found the Officer's testimony more credible than defendant's and therefore found defendant guilty. The court's credibility determinations, however, were made after the DDR and the DDQ were admitted into evidence, notwithstanding the impermissible hearsay statements they contained, and after the Alcotest results were admitted into evidence despite the lack of requisite foundational documents.
The cumulative effect of the inclusion of the DDR, the DDQ, and the Alcotest results may have tilted the municipal court's credibility findings. Thus, the Court lacks sufficient confidence in the proceedings to sanction the result reached and concludes that the interests of justice require a new trial. It is only because of the unique confluence of events in this case - the inappropriate admission of the Alcotest results as well as the DDR and DDQ - that the Court remands for a new trial. Had the only flaw been the admission of the DDR and DDQ, which contained hearsay, Officer Serritella's testimony would have alleviated much of that problem. Here, however, the cumulative effect of the errors may have tilted the municipal court's credibility findings.
The judgment of the Appellate Division was REVERSED. The matter was REMANDED for a new trial. Full opinion of case at http://www.njlaws.com/Kuropchakcase.htm
2. Real Estate Sales - Time to Prepare your Home for Sale
To serve our Probate and Senior citizen clients, Kenneth Vercammen had 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. If panning on selling a house, please call us. Even if we cannot handle the closing, we can refer you to realtors or attorneys experienced in real estate purchases or sales.
3. 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 opens on weekends from Memorial Day through June 14- Hours Sat. 11am-8pm and Sun.12-8pm
The pool will be open fro the summer starting June 14 through Labor Day
Also available this year swim lessons for children ages 4-6 and 7-8. For details to join, contact the Y. http://www.ymcaofmewsa.org/ or call for info 732-548-2044
4. Available Immediately For Rent Coffee Shop/Deli
2045 Woodbridge Avenue, Edison, NJ 08817
Great Store Front On Corner Lot. Great Location For A New Deli, Coffee Shop Or other Personal Service Business. New tile floor, freshly painted, and other recent remodeling. Approximately 700 Sq. Ft. $1650 per month. For more information or to schedule a time to see space please contact:
5. Wills For Heroes- Free Basic Will or Power of Attorney for Police Officers
To recognize National Police Week May 10-16, Kenneth Vercammen's Law Office will provide a Free Simple Will, Living Will or Power of Attorney for Central Jersey Police Officers..
I appreciate the service provided by police who protect my family. We want to say thank you to local police. Please call for the free consultation and Will. Ken Vercammen is co-chair of the American Bar Association ABA Estate Planning and Probate Committee. The ABA founded the "Wills for Heroes" program. Appointments need to be scheduled by May 31.
Ken Vercammen served as the prosecutor for Cranbury Township, Middlesex County for nine years. We established the Municipal Court Law Review to provide information on recent criminal and traffic cases to New Jersey police officers.
6. Next Seminars and Charity running events
April 30 Hot Topics in DWI Atlantic City
Thursday, April 30, 2015
2:15 pm - 3:00 pm
NJAJ Boardwalk Seminar
Speakers:
Jeffrey Gold, Esq. * Cherry Hill, NJ
Peter H. Lederman, Esq. * Freehold, NJ
Kenneth A. Vercammen, Esq. * Edison, NJ
https://www.facebook.com/events/646009375544467/
Saturday, May 2, 8 a.m. 5K, Harvest of Hope 5K, North Brunswick, New Jersey [Ken V finished 2nd overall]
May 6, 2015 Seminar: Remove & Expungement of Criminal Arrests and Convictions- Free Seminar from 5:00pm-5:45 https://www.facebook.com/events/635566993237148/
May 7 - Piscataway Wills Seminar 7PM at Piscataway Library
May 9, Brick 5K, 9am Brick, New Jersey
5/22/15 Friday - "Start of Summer Happy Hour with the Legends of Belmar" Join Ken V and friends the Friday night before Spring Lake 5 race for "Legends Night" in Belmar at D'Jais 5:30 free food 1803 Ocean Ave, Belmar, NJ 07719 , then 7:30 Bar Anticipation 16th Ave not a race, just social event
May 23/15 Spring Lake 5 mile 8:30 free food and reduced price drinks Bar A after race benefiting Spring Lake Recreation
5/30/15 Avon 5k, 8:30 Avon, N.J. Sponsor Wakefern/ Shoprite
1. NJ Supreme Court Holds Municipal Court improperly admitted into evidence Drinking Driving Questionnaire (DDQ) and Drinking Driving Report.
2. Real Estate Sales - Time to Prepare your Home for Sale
3. Join the Edison Community Pool Now!
4. Available Immediately For Rent Coffee Shop/Deli
2045 Woodbridge Avenue, Edison, NJ 08817
5. Wills For Heroes- Free Basic Will or Power of Attorney for Police Officers
6. Next Seminars and Charity running events
1. NJ Supreme Court Holds Municipal Court improperly admitted into evidence Drinking Driving Questionnaire (DDQ) and Drinking Driving Report. State v. Kuropchak __ NJ __ (A-41-13 )
The municipal court's admission of the Alcotest results without the foundational documents required by State v. Chun, 194 N.J. 54 (2009) was error. Further, because the DDQ and DDR contained inadmissible hearsay, which may have unduly influenced the municipal court's credibility findings, the matter is remanded for a new trial.
HELD: The municipal court's admission of the Alcotest results without the foundational documents required by State v. Chun, 194 N.J. 54 (2009) was error. Further, because the DDQ and DDR contained inadmissible hearsay, which may have unduly influenced the municipal court's credibility findings, the matter is remanded for a new trial.
1. If a municipal court convicts a defendant of DWI, the defendant must first appeal to the Law Division. The Law Division reviews the municipal court's decision de novo, but defers to credibility findings of the municipal court.
Appellate courts should defer to trial courts' credibility findings. Occasionally, however, a trial court's findings may be so clearly mistaken that the interests of justice demand intervention and correction.
2. A court may convict a defendant of DWI if she registers a blood alcohol level of 0.08% or higher. This finding of guilt is subject to proof of the Alcotest's reliability. The operator must observe the subject for twenty minutes. After twenty minutes, the Alcotest machine automatically conducts a blank air test to determine if there are any chemical interferents in the room. Additionally, a control test is conducted; if the Alcotest is working properly, that control test will generate a result between 0.095 and 0.105. The State must also admit certain foundational documents: (1) the most recent calibration report prior to a defendant's test, with part I--control tests, part II--linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard solution report prior to a defendant's test; and (3) the certificate of analysis of the 0.10 simulator solution used in a defendant's control tests to prove that the Alcotest was in working order.
3. Here, the last semi-annual calibration was completed on January 12, 2010, with simulator solution control lot 09D065. The solution control lot for the control test performed prior to and following the three rounds of breath tests performed on defendant was solution control lot 08J060. Under Chun, the State was required to provide the Certificate of Analysis of the 0.10 Simulator Solution used in defendant's control test. The State, however, mistakenly admitted the Certificate of Analysis for the semi-annual simulator solution control lot 09D065 instead. Additionally, the most recent Calibrating Unit New Standards Solution Report was not admitted into evidence during the State's case. Given that the foundational documents were not admitted into evidence, the State presented no evidence as to the reliability or accuracy of the Alcotest results and, therefore, defendant's conviction of per se intoxication was improper.
4. Defendant contends that the DDR and the DDQ were admitted into evidence in violation of the Confrontation Clause. A person charged with a criminal offense has the right to confront his accusers. Officer Serritella's documentation of the incident must be considered the recordation of testimonial statements because his observations were made to establish that defendant was driving while intoxicated. Since the officer testified at trial and was extensively cross-examined, the Confrontation Clause was not violated by the admission of the DDR and DDQ.
5. As for defendant's contention that the DDR and DDQ are hearsay not subject to any exception, the Court observes that hearsay is inadmissible unless it fall into one of certain recognized exceptions. To qualify as a business record, a writing must: (1) be made in the regular course of business, (2) within a short time of the events described in it, and (3) under circumstances that indicate its trustworthiness. Foundational reports for breath testing, with certain qualifications, are admissible under the business record exception to the hearsay rule. Here, however, the DDR contains a narrative account of what the officer saw at the scene and includes factual statements, observations, and the officer's opinions. Thus, the DDR contains inadmissible hearsay. Although the DDQ also does not appear initially to constitute hearsay, it incorporates by reference the DWI report in the "remarks" section and the DWI report, in turn, contains several inadmissible opinions. The DDQ's content thus also rises to the level of inadmissible hearsay and must be excluded. Therefore, the DDR and the DDQ were inadmissible hearsay outside the scope of the business records exception.
6. Here, the municipal court heard defendant's testimony concerning the events on the day of the incident, as well as the testimony of Officer Serritella. The court found the Officer's testimony more credible than defendant's and therefore found defendant guilty. The court's credibility determinations, however, were made after the DDR and the DDQ were admitted into evidence, notwithstanding the impermissible hearsay statements they contained, and after the Alcotest results were admitted into evidence despite the lack of requisite foundational documents.
The cumulative effect of the inclusion of the DDR, the DDQ, and the Alcotest results may have tilted the municipal court's credibility findings. Thus, the Court lacks sufficient confidence in the proceedings to sanction the result reached and concludes that the interests of justice require a new trial. It is only because of the unique confluence of events in this case - the inappropriate admission of the Alcotest results as well as the DDR and DDQ - that the Court remands for a new trial. Had the only flaw been the admission of the DDR and DDQ, which contained hearsay, Officer Serritella's testimony would have alleviated much of that problem. Here, however, the cumulative effect of the errors may have tilted the municipal court's credibility findings.
The judgment of the Appellate Division was REVERSED. The matter was REMANDED for a new trial. Full opinion of case at http://www.njlaws.com/Kuropchakcase.htm
2. Real Estate Sales - Time to Prepare your Home for Sale
To serve our Probate and Senior citizen clients, Kenneth Vercammen had 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. If panning on selling a house, please call us. Even if we cannot handle the closing, we can refer you to realtors or attorneys experienced in real estate purchases or sales.
3. 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 opens on weekends from Memorial Day through June 14- Hours Sat. 11am-8pm and Sun.12-8pm
The pool will be open fro the summer starting June 14 through Labor Day
Also available this year swim lessons for children ages 4-6 and 7-8. For details to join, contact the Y. http://www.ymcaofmewsa.org/ or call for info 732-548-2044
4. Available Immediately For Rent Coffee Shop/Deli
2045 Woodbridge Avenue, Edison, NJ 08817
Great Store Front On Corner Lot. Great Location For A New Deli, Coffee Shop Or other Personal Service Business. New tile floor, freshly painted, and other recent remodeling. Approximately 700 Sq. Ft. $1650 per month. For more information or to schedule a time to see space please contact:
5. Wills For Heroes- Free Basic Will or Power of Attorney for Police Officers
To recognize National Police Week May 10-16, Kenneth Vercammen's Law Office will provide a Free Simple Will, Living Will or Power of Attorney for Central Jersey Police Officers..
I appreciate the service provided by police who protect my family. We want to say thank you to local police. Please call for the free consultation and Will. Ken Vercammen is co-chair of the American Bar Association ABA Estate Planning and Probate Committee. The ABA founded the "Wills for Heroes" program. Appointments need to be scheduled by May 31.
Ken Vercammen served as the prosecutor for Cranbury Township, Middlesex County for nine years. We established the Municipal Court Law Review to provide information on recent criminal and traffic cases to New Jersey police officers.
6. Next Seminars and Charity running events
April 30 Hot Topics in DWI Atlantic City
Thursday, April 30, 2015
2:15 pm - 3:00 pm
NJAJ Boardwalk Seminar
Speakers:
Jeffrey Gold, Esq. * Cherry Hill, NJ
Peter H. Lederman, Esq. * Freehold, NJ
Kenneth A. Vercammen, Esq. * Edison, NJ
https://www.facebook.com/events/646009375544467/
Saturday, May 2, 8 a.m. 5K, Harvest of Hope 5K, North Brunswick, New Jersey [Ken V finished 2nd overall]
May 6, 2015 Seminar: Remove & Expungement of Criminal Arrests and Convictions- Free Seminar from 5:00pm-5:45 https://www.facebook.com/events/635566993237148/
May 7 - Piscataway Wills Seminar 7PM at Piscataway Library
May 9, Brick 5K, 9am Brick, New Jersey
5/22/15 Friday - "Start of Summer Happy Hour with the Legends of Belmar" Join Ken V and friends the Friday night before Spring Lake 5 race for "Legends Night" in Belmar at D'Jais 5:30 free food 1803 Ocean Ave, Belmar, NJ 07719 , then 7:30 Bar Anticipation 16th Ave not a race, just social event
May 23/15 Spring Lake 5 mile 8:30 free food and reduced price drinks Bar A after race benefiting Spring Lake Recreation
5/30/15 Avon 5k, 8:30 Avon, N.J. Sponsor Wakefern/ Shoprite
