Kenneth Vercammen, Attorney at Law
August 3, 2015
Greetings!
In this Issue:
1. Mere filming of ex spouse is not violation for FRO. State v. D.G.M.
2 Jail Alternative allowed in 3-40(e) and 6B:2. State v. Toussaint.
3. 3rd offender DWI defendant not entitled to jail credit for house arrest State v Haas.
4. Next Community events we participate in
E474
Recent cases
1. Mere filming of ex spouse is not violation for FRO. State v. D.G.M., 439 N.J. Super. 630 (App.Div. 2015).
In this appeal of a contempt conviction, the court considered whether defendant violated the "no contact or communication" provision of an amended domestic violence final restraining order by sitting near and briefly filming the victim at their child's soccer game. Although the court held that such conduct falls within the restraining order's prohibition on "communication," the court concluded that defendant could not have fairly anticipated this interpretation; therefore, in applying the doctrine of lenity, the court reversed defendant's conviction.
2 Jail Alternative allowed in 3-40(e) and 6B:2. State v. Toussaint,___ N.J. Super. ___ (App.Div. 2015) (A-3654-13T1).
When a defendant is convicted under N.J.S.A. 39:3-40(e) (being involved in an accident that causes injury to another, while driving with a suspended license), or N.J.S.A. 39:6B-2 (driving without insurance), the court has discretion to permit the defendant to serve the sentence in an electronic monitoring program instead of in the county jail. In construing those provisions, we distinguished State v. French, 437 N.J. Super. 333, 335 (App. Div. 2014), certif. denied, 200 N.J. 575 (2015), which held that N.J.S.A. 2C:40-26(c) did not permit sentencing alternatives for driving during a second or subsequent license suspension imposed for DWI.
3. 3rd offender DWI defendant not entitled to jail credit for house arrest State v Haas., (App. Div. Decided March 13, 2015) A-3599-13T4, Unpublished.
Under N.J.S.A. 39:4-50(a)(3) a defendant found guilty of Driving While Intoxicated (DWI) for a third or successive time must be sentenced to imprisonment for a term of "not less than 180 days," and that time must be served "in a county jail or workhouse." Defendant in this third-time DWI case argued that he was entitled to jail credits for the 149-day period he spent under what was characterized as the functional equivalent of a "house arrest." The court concluded that such credits are not authorized under the law as the time that defendant spent in his consensual, so-called house arrest was not time served "in custody in jail or in a state hospital." The mandatory jail consequence prescribed by the Legislature must be carried out in full.
4. Next Community events we participate in
8/8 Asbury Park 5K, Asbury Park, N.J. 8:30am Wakefern co-sponsor - benefiting Boys & Girls Clubs of Mon. Cty.
8/15 Bradley Beach 5k co-Sponsor Wakefern 8:30
8/16 Ray Licata Long Branch Ocean Mile Swim 1 mile 8am
8/22 Belmar Chase 5k 8:30am
8/22 Beach Boys Ocean Grove 8pm tickets still available
Editor's Note and Disclaimer:
All materials Copyright 2015. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
August 3, 2015
Greetings!
In this Issue:
1. Mere filming of ex spouse is not violation for FRO. State v. D.G.M.
2 Jail Alternative allowed in 3-40(e) and 6B:2. State v. Toussaint.
3. 3rd offender DWI defendant not entitled to jail credit for house arrest State v Haas.
4. Next Community events we participate in
E474
Recent cases
1. Mere filming of ex spouse is not violation for FRO. State v. D.G.M., 439 N.J. Super. 630 (App.Div. 2015).
In this appeal of a contempt conviction, the court considered whether defendant violated the "no contact or communication" provision of an amended domestic violence final restraining order by sitting near and briefly filming the victim at their child's soccer game. Although the court held that such conduct falls within the restraining order's prohibition on "communication," the court concluded that defendant could not have fairly anticipated this interpretation; therefore, in applying the doctrine of lenity, the court reversed defendant's conviction.
2 Jail Alternative allowed in 3-40(e) and 6B:2. State v. Toussaint,___ N.J. Super. ___ (App.Div. 2015) (A-3654-13T1).
When a defendant is convicted under N.J.S.A. 39:3-40(e) (being involved in an accident that causes injury to another, while driving with a suspended license), or N.J.S.A. 39:6B-2 (driving without insurance), the court has discretion to permit the defendant to serve the sentence in an electronic monitoring program instead of in the county jail. In construing those provisions, we distinguished State v. French, 437 N.J. Super. 333, 335 (App. Div. 2014), certif. denied, 200 N.J. 575 (2015), which held that N.J.S.A. 2C:40-26(c) did not permit sentencing alternatives for driving during a second or subsequent license suspension imposed for DWI.
3. 3rd offender DWI defendant not entitled to jail credit for house arrest State v Haas., (App. Div. Decided March 13, 2015) A-3599-13T4, Unpublished.
Under N.J.S.A. 39:4-50(a)(3) a defendant found guilty of Driving While Intoxicated (DWI) for a third or successive time must be sentenced to imprisonment for a term of "not less than 180 days," and that time must be served "in a county jail or workhouse." Defendant in this third-time DWI case argued that he was entitled to jail credits for the 149-day period he spent under what was characterized as the functional equivalent of a "house arrest." The court concluded that such credits are not authorized under the law as the time that defendant spent in his consensual, so-called house arrest was not time served "in custody in jail or in a state hospital." The mandatory jail consequence prescribed by the Legislature must be carried out in full.
4. Next Community events we participate in
8/8 Asbury Park 5K, Asbury Park, N.J. 8:30am Wakefern co-sponsor - benefiting Boys & Girls Clubs of Mon. Cty.
8/15 Bradley Beach 5k co-Sponsor Wakefern 8:30
8/16 Ray Licata Long Branch Ocean Mile Swim 1 mile 8am
8/22 Belmar Chase 5k 8:30am
8/22 Beach Boys Ocean Grove 8pm tickets still available
Editor's Note and Disclaimer:
All materials Copyright 2015. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
