2053 Woodbridge Avenue - Edison, NJ 08817

Tuesday, April 17, 2018

E537March 20, 2018 Index 1. Even if the request to search were not lawful, defendant's flight attenuated the seizure from the alleged improper police conduct. 2. Strip search after marijuana arrest not permitted. 3. Community Events


NJ LAWS EMAIL NEWSLETTER E537
Kenneth Vercammen, Attorney at Law 
March 20, 2018
Index 
1. Even if the request to search were not lawful, defendant's flight attenuated the seizure from the alleged improper police conduct.  
2.  Strip search after marijuana arrest not permitted.  
3.  Community Events

Recent Cases: Even if the request to search were not lawful, defendant's flight attenuated the seizure from the alleged improper police conduct. State v. Lopez N.J. Super. App. Div. unreported
   Defendant appealed the denial of his motion to suppress evidence and his sentences. Police made a motor vehicle stop of defendant's vehicle, observed that defendant was nervous, saw a large amount of cash in the center console, suspected drug activity and requested consent to search the car. Defendant initially agreed, then drove away throwing a black object out of the car. Defendant eventually stopped and was arrested. The police found a plastic bag-containing heroin near where defendant threw the object from the car. At the hearing on the motion to suppress, the trial judge found the stop was lawful because of the inoperable brake light and defendant's change of lanes without signaling. The court found that sufficient credible evidence supported the stop and the request to search.
    Even if the request to search were not lawful, defendant's flight attenuated the seizure from the alleged improper police conduct. Source NJLJ (14-2-3291) unreported.

2.   Strip search after marijuana arrest not permitted.  State v. Jules, N.J. Super. App. Div. unreported.
  Appellant appealed from his conviction for third-degree possession of alprazolam (Xanax). Appellant's appeal focused solely on the denial of his motion to suppress evidence obtained from a strip search, which police conducted at their headquarters after his arrest. In denying appellant's motion, the judge found the officer had reasonable articulable suspicion justifying the initial stop, probable cause for the arrest and that the strip search was lawful under the search incident to arrest exception to the warrant requirement.             Appellant did not dispute the initial stop or the arrest; appellant argued that the police acted unlawfully by subjecting him to a strip search without first obtaining a warrant. 
  On appeal, the court-reversed denial holding the officer's suspicion that the item in appellant's groin area was a prescription pill bottle did not establish probable cause that appellant committed the named offense. The court found there was no "objectively reasonable" basis to arrest appellant for possession of prescription pills, only that there was probable cause to arrest him for marijuana possession.     Therefore, the police could not use the search incident to arrest exception to circumvent the protections that arose from appellant's arrest. Furthermore, exigency could not support the search once the police handcuffed and secured appellant. Finally, the court found the "plain feel" exception inapplicable because the object believed to be a prescription pill bottle did not make it "immediately apparent" that the bottle contained contraband. Accordingly, the court reversed denial of suppression and remanded for dismissal of the judgment of conviction. Source NJLJ Daily briefing

3.  Community Event

Edison Elks presents - An Evening of Southern Rock & Blues
April 14 at 6 PM - 10 PM        Saturday,
Edison Elks #2487 - Edison, NJ 375 Old Post Road, Edison, New Jersey 08817 Come enjoy Southern Rock & Blues music while eating some good ol' Southern BBQ. All proceeds help fund the Elks Wildwood Convention and Parade. $25.00 Short ribs and chicken Open to the public

April 16, 2018 Please share with your patrons
Metuchen Library
Wills, Estate Planning & Probate Seminar
at 7:00pm Free community program
480 Middlesex Ave. Metuchen, NJ 08840
Open to the public. You do not need to be a resident to attend
WILLS & ESTATE ADMINISTRATION-PROTECT YOUR
FAMILY AND MAKE PLANNING EASY

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ (Author- Wills and Estate Administration by the ABA)
       The January 1, 2018 New Estate Tax law changes administration of estates and trusts in New Jersey.
Main Topics:
1. NJ Estate Tax eliminated on Estates under $5,500,000 as of January 1, 2018 & Veterans Tax credit
2. 2018 changes in Federal Estate and Gift Tax
3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent
4. Power of Attorneys                                                                        
5. Living Will                                                                                       
6. Administering the Estate/ Probate/Surrogate

Upcoming Running Races & Charity events selected by Kenneth Vercammen

March 24, 2018  Jersey Shore Kilt Run/Walk (Lake Como) 11AM
Great event by JerseyRunner.com & Gio Dr. T-shirtjerseyrunner.com Wakefern Shoprite co-sponsor
April 15th at 8:00am - Lincoln Tunnel 5k in Weehawken Sunday Wakefern If you are attending any of these charity races, please call or email Ken V. at Kenv@njaws.com Often we car pool from East Brunswick /Edison or meet at these events. I update this list athttp://vercammensport.blogspot.com/
    Great event by JerseyRunner.com & Gio Dr. T-shirtjerseyrunner.com Wakefern Shoprite co-sponsor

April 7, 2018 Indian Trails now 20k & 10k 9am Middletown [Ken V is past 5k winner] Croydon Hall School raceforum.com

April 15, 2018 at 8:00am - 
Lincoln Tunnel 5k in Weehawken Sunday Wakefern Shoprite is co-sponsor https://www.sonj.org/events/lincoln-tunnel-challenge-5k/

April 21, 2018 Runapoloza Jersey Shore relay & The Asbury Park Half Marathon   Wakefern Shoprite Corporate Team Past Champion www.jsrc.org.

April 28, 2018   JSRC Lake Como 5k Romp 10am
Benefit BPOE Elks Camp Moore for Children with Special Needs & Lake Como Giving Tree      

April 29, 2018     29th Annual Tour de Franklin,Franklin Food Bank 62 mile & 40-mile bike 62 Mile Metric Century or 40 Mile   now Starts at Franklin High School.          http://www.franklinfoodbank.org/events 

April 29, 2018 Captain Ronald Zinn Memorial Races 10k Racewalk 9am, 5krun 11am Wall Municipal Building

May 5, 2018 Farmlands bike This family-friendly event has marked routes in a variety of distances, from a leisurely 15,25,35 mile jaunt to the ambitious 50 mile, metric (62.5 miles) and century (100 miles)
Central Jersey Bike Club Middletown http://www.cjbc.org 

May 6, 2018 Highland Park 5k Run in the Park   9am Sunday RVRR is volunteer group.

Like Us On: Facebook

Endorse Us On: Linkedin  
Editor's Note and Disclaimer:
All materials Copyright 2018. 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


E536 ndex 1. Recent cases: GPS tracking device by police not barred. 2. NJ had jurisdiction for criminal spam attack on NJ business 3. OPRA can also require electronically stored data. 4. Non-running Community events 5. Fun Upcoming Charity Running Races


NJ LAWS EMAIL NEWSLETTER E536
Kenneth Vercammen, Attorney at Law 
March 6, 2018
Index 
1. Recent cases:  GPS tracking device by police not barred.  
2. NJ had jurisdiction for criminal spam attack on NJ business 
3. OPRA can also require electronically stored data. 
4. Non-running Community events 
5. Fun Upcoming Charity Running Races 

1. GPS tracking device by police not barred State v McDuffie 450 NJ Super. 554 (App. Div. 2017).
   The court examined defendants' attack on the State's exercised privilege, refraining from disclosing information regarding details related to a global positioning system (GPS) tracking device used to prove their involvement in two burglaries. The court rejected defendants' constitutional attacks and upheld the privilege granted by N.J.R.E. 516 and N.J.S.A. 2A:84A-28, defining the guidelines reviewed when weighing disclosure in light of the asserted privilege.
These include: (1) whether defendant demonstrates a particularized need for disclosure related to advance a stated defense; (2) whether the opportunity to cross-examine the officer, asserting non-disclosure based on privilege, satisfies a defendant's need to challenge the credibility of the testifying witness; (3) whether law enforcement provided required corroborating evidence extrinsic to the GPS, to protect a defendant's rights of confrontation and fair trial; and (4) whether a defendant has the opportunity to provide expert testimony to attack the evidence without disclosure of the requested information. Docket A-3634-14T3

2. NJ had jurisdiction for criminal spam attack on NJ business. State v Tringali 451 NJ Super. 18 (App. Div. 2017).
    The State alleged that, acting in Florida, defendant paid an accomplice to launch spam attacks on a website that was integral to a New Jersey internet-based business, for the purpose of harming the business owner.
   The Appellate Division reversed an order dismissing the indictment charging defendant with the offenses of disrupting or impairing computer services, N.J.S.A. 2C:20-25(b), and impersonating another for the purpose of obtaining a benefit or depriving another of a benefit, N.J.S.A. 2C:21-17(a)(1). As to both offenses, the harmful result to the victim is an "element" of the offense, within the meaning of the territorial jurisdiction statute, N.J.S.A. 2C:1-3(a)(1) and -3(g).
     Because the prosecutor produced some evidence that the New Jersey victims suffered harm in this State, which was an element of each computer crime statute, New Jersey has territorial jurisdiction to prosecute defendant for those offenses. Therefore, the trial court erred in dismissing those counts of the indictment for lack of territorial jurisdiction. A-1262-15T1

3. OPRA can also require electronically stored data. Paff v. Galloway Township 229 NJ 340 (2017).
   The Appellate Division's overly constrictive reading of OPRA cannot be squared with the OPRA's objectives or statutory language. OPRA recognizes that government records will constitute not only paper documents, but also information electronically stored.
   The fields of information covering "sender," "recipient," "date," and "subject" in the emails sent by the Galloway Township Chief of Police and Clerk over a two-week period are government records under OPRA.

March 16, 2018 Highland Park Office of Aging at 11am Wills & Estates Free program

March 18, 2018 South Amboy Parade Sunday at 1 PM.

March 18, 2018 Elks Citizen of the Year Awards Dinner Central District held at Carteret Elks Ken V is current Edison Citizen of the Year

March 22 2018, Middlesex County Bar Awards Dinner at The Pines Manor in Edison. [Ken V is a past winner of Municipal Court Attorney of the Year]

March 24, 2018 Highlands Saint Patrick's Day Parade   2pm park near Central, go to Claddagh, then Inlet Cafe

March 25, 2018 Keyport, NJ St. Patrick's Day Parade
Saturday, Kick-off will be at 1:00 PM


March 18, 2018 St. Paddy's 5 mile   9:30 Freehold  great FARC event Dress warm. FARC is a 501(c) 3 not for profit organization. which typically donate over $25,000 each year to local charities.

March 24, 2018  Jersey Shore Kilt Run / Walk (Lake Como) 11 am
 Great event by JerseyRunner.com & Gio Dr. T-shirtjerseyrunner.com Wakefern Shoprite co-sponsor

Editorial Assistance provided by Meriam Kahany. Ms. Kahany is currently attending Rutgers University and is participating in Kenneth Vercammen's Spring Law Office Volunteer Internship Program.

Like Us On: Facebook

Endorse Us On: Linkedin  
Editor's Note and Disclaimer:
All materials Copyright 2018. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.

E535February 15, 2018 Index 1. Recent cases: Dash cam video in fatal shooting public record. 2. Canine dog sniff search cannot be long delay. 3. Defendant had a constitutional right to possess the machete in his home. 4. Non-running Community events & St. Patrick parades. 5. Fun Upcoming Charity Running Races.


NJ LAWS EMAIL NEWSLETTER E535
Kenneth Vercammen, Attorney at Law 
February 15, 2018
Index 
1. Recent cases: Dash cam video in fatal shooting public record.
2. Canine dog sniff search cannot be long delay.
3. Defendant had a constitutional right to possess the machete in his home.
4. Non-running Community events & St. Patrick parades.
5. Fun Upcoming Charity Running Races.

1. Dash cam video in fatal shooting public record. North Jersey Media Group, Inc. v. Township of Lyndhurst.  229 NJ 514 (2017)
   NJMG was entitled to disclosure of unredacted Use of Force Reports, under OPRA, and dash-cam recordings of the incident, under the common law. Investigative reports, witness statements, and similarly detailed records were not subject to disclosure at the outset of the investigation, when they were requested.

2. Canine dog sniff search cannot be long delay. State v. Dunbar 229 NJ 521 (2017).
The Court adopts the federal standard barring unnecessary delays for the purpose of canine sniffs. Officers do not need reasonable suspicion of a drug offense provided that the canine sniff does not prolong the stop beyond the time required to complete the stop's mission. (A-94-15; 077839)

3. Defendant had a constitutional right to possess the machete in his home. State v. Montalvo 226 N.J. 212 (2017)
The right to possess a weapon in one's own home for self-defense would be of little effect if one were required to keep the weapon out-of-hand, picking it up only "spontaneously." Defendant had a constitutional right to possess the machete in his home for his own defense and that of his pregnant wife. Because the trial court's instructions did not convey this principle, the instructions were erroneous. Further, because the erroneous instructions were capable of producing an unjust result in this matter, they constitute plain error.

4. Non-running Community events:
March 1, 2018NJAJ LAW OFFICE MARKETING: ONLINE AND OFFLINE Winter Seminar 2018 Thursday, The Palace at Somerset Park, Somerset, NJ

SEMINAR AGENDA
11:00 am - 12:00 pm, Lunch & Registration, Exhibit Hall
12:00 pm - 12:30 pm
Marketing Without the Internet
Kenneth A. Vercammen, Esq., Edison, NJ
12:30 pm - 1:15 pm
Engaging Your Law Firm in Your Community
Andrew J. D'Arcy, Esq., Egg Harbor Township, NJ
Satish V. Poondi, Esq.,  Woodbridge, NJ   1:15 pm - 2:15 pm
Internet Marketing  2:30 pm - 3:30 pm
Ethics of Internet Marketing: What is Appropriate on Your Website
3:30 pm - 4:15 pm
Networking and Building Your Referral Base  4:15 pm - 5:00 pm
Law Office Marketing Panel Discussion  5:00 pm - 6:30 pm
Cocktail Reception Exhibit Hall Registration fees between $200-$350

March 7, 2018 Annual Review of the Major Municipal Court Cases affecting Law Enforcement 2017-2018 at 12 noon,Sponsored by Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFAat South Amboy Ancient Order of Hibernians AOH 271 2nd St, South Amboy, NJ 08879 free for police & law enforcement

March 8, 2018 Catholic Financial Foundations: Protecting your family with insurance and estate planning. at 7pm   St. Thomas the Apostle One St. Thomas Plaza   Old Bridge

March 11, 2018 Asbury Park, NJ St. Patrick Parade@ 1:00 PM   Sunday,

March 14, 2018 Sayreville Public Library
Wills & Power of Attorney Seminar at 6:30pm free

March 15 Piscataway Library Wills & Power of Attorney Seminar at 7pm free

March 16 Highland Park Office of Aging at 11am Wails & Estates Free program

March 18 South Amboy Parade Sunday at 1 PM.

March 18 Elks Citizen of the Year Awards Dinner Central District held at Carteret Elks Ken V is Edison 2017-2018 Citizen of the Year

March __ 2018, MCBA awards Annual Awards Dinner at The Pines Manor in Edison. Middlesex County Bar Awards Dinner [Ken V is a past winner of Municipal Court Attorney of the Year]

March 24 Highlands Saint Patrick's Day Parade   2pm park near Central, go to Claddagh, then Inlet Cafe

March 25 Keyport, NJ St. Patrick's Day Parade
Saturday, Kick-off will be at 1:00 PM

5. Fun Upcoming Charity Running Races
 February 17, 2018 Manasquan Mid-Winter 2 mile Beach Run/Walk 11:00Race starts on Ocean Ave, Boardwalk and you run l 1/4 mile on the Beach, ending at Leggett's restaurant.Post race party at Leggett's, plenty refreshments and food. Wakefern Shoprite co-sponsor jerseyrunner.com

Feb 18, 2018 ORC Winter Series 10am Ocean County Park, Lakewood

Feb 25, 2018 Johnny Mac house of Spirits Train Run Snowball Express approx 10:30 AM when train leaves jsrc.org

March 10 Guinness run Highlands Bahrs Landing Restaurant
2 Bay Ave., Highlands, NJ 07732. Saturday, March 10, 2018 at 2PM. Registration is $30.00 and includes a commemorative t-shirt, a Guinness Pint glass and access to the Post-Race Party at Bahrs Landing Restaurant, with complimentary appetizers and Guinness Beer. The race will begin at Bahrs, 2 Bay Avenue, where contestants will fill their cup and race to Miller St., and back to the finish line at Bahrs. The contestant with the most liquid in their cup at the finish line, wins the 1st Place trophy . There will be a Post-Guinness Run Pub Crawl from 3PM-5PM, included with RUN registration or $10.00 without RUN registration and $3.00 Imported Beer specials at participating restaurants.

March 18, 2018 St. Paddy's 5 mile   9:30 Freehold     great FARC event Dress warm. FARC is a 501(c) 3 not for profit organization. which typically donate over $25,000 each year to local charities. farcnj.com

3/24/18  Jersey Shore Kilt Run/Walk (Lake Como) 11AM

  Great event by JerseyRunner.com & Gio Dr. T-shirtjerseyrunner.com Wakefern Shoprite co-sponsor
Editor's Note and Disclaimer:
All materials Copyright 2018. 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





Monday, April 09, 2018

Winter 2017 Municipal Court Law Review rev 1/10/17

Major cases affecting Municipal Court and criminal cases



1. NJ Supreme Court makes “plain view” car searches easier

State v. Gonzales __ NJ __ (2016)

    The Court now excises the inadvertence requirement from the plain-view doctrine. Because it is setting forth a new rule of law, the Court will apply the reformulated plain-view doctrine prospectively. Nevertheless, the Court holds that the trial court’s finding of inadvertence is supported by credible evidence in the record. The Court therefore reverses the judgment of the Appellate Division and reinstates the trial court’s denial of the motion to suppress.  A-5-15



2. Protective search on house not permitted where no evidence another person present. State v. Bryant __ NJ __ (2016)

   The officers here lacked reasonable and articulable suspicion that another party was present, much less that another party posed a danger to officer safety. The protective sweep was thus insufficient to establish an exception to the warrant requirement, and any evidence found as a result of that sweep—even if it was found in plain view—must be excluded and suppressed as fruit of the poisonous tree. A-2-15



3. Driver with prior school zone DWI sentenced as 2nd Offender State v. Wheatley __ NJ Super. __ (App. Div. 2016) 

       Distinguishing State v. Reiner, 180 N.J. 307 (2004), the court held that a defendant who was previously convicted of driving while intoxicated (DWI) in a school zone in violation of N.J.S.A. 39:4-50(g) is subject to the increased penalties applicable to second offenders under N.J.S.A. 39:4-50(a)(2) when he was subsequently convicted of a conventional DWI in violation of N.J.S.A. 39:4-50(a). A-5026-14T1



4. Town outside surveillance camera not subject to OPRA but maybe subject to common law.

Gilleran v. Township of Bloomfield __ NJ __ (2016)

Compelling release on demand of security surveillance video would be contrary to the legislative intent motivating OPRA’s exemptions based on security concerns. The Township’s explanation for denying the request for the footage was adequate. Requests for video from surveillance cameras protecting public facilities are better analyzed under the common law right of access. The Court therefore reverses the judgment of the Appellate Division and remands the matter for further proceedings based on the unresolved common law claim. A-15-15



5 Twitter statement admissible in criminal trials. State v Hannah __ NJ Super. __ (App. Div. 2016)

Defendant was charged with hitting the victim in the face with her shoe. At trial, the State introduced a screenshot taken by the victim of a "tweet" allegedly posted by defendant after the incident saying "shoe to ya face." Defendant argues that this Twitter posting was improperly admitted into evidence, citing a Maryland case requiring that such social media postings must be subjected to a greater level of authentication. The Appellate Division rejects that contention, holding that New Jersey's current standards for authentication are adequate to evaluate social media postings. Under those standards, it was not an abuse of discretion to admit the tweet based on the presence of defendant's photo and Twitter handle, its content containing information specific to the parties involved, and its nature as a reply to the victim's communications. A-5741-14T3


6. No obstruction for failure to provide DL for parking ticket.  State v Powers __ NJ Super. __ (App. Div. 2016)

Defendant was convicted after a trial in municipal court, and again on appeal to the Law Division, of obstruction based on both physical interference and an "independently unlawful act." N.J.S.A. 2C: 29-1(a). The court remanded for findings that might illuminate the judge's conclusory determination that defendant physically interfered with a state trooper in the issuance of a parking ticket at a highway rest stop.

       The court, however, also held that defendant, in these circumstances, could not be convicted of obstruction by means of "an independently unlawful act" that was based solely on N.J.S.A. 39:4-57, which provides that "[drivers of vehicles . . . shall at all times comply with any direction . . . of a member of a police department" when the officer is in the course of "enforcing a provision of this chapter." Defendant was outside his vehicle and, therefore not a driver, and the trooper was not enforcing Chapter 39 because he was only issuing a parking ticket. A-3764-14T2


7. Official misconduct does not apply to EMT State v. Morrison __ NJ __ (2016)

A municipality’s contracting for emergency medical services through a private, non-profit first-aid squad does not convert the EMTs into public servants because they are not exercising authority of a uniquely governmental nature or performing a function exclusive to government in any traditional sense, regardless of whether there are one or more non-profit providers of publicly funded emergency medical services for the municipality. Morrison did not commit the offense of official misconduct because he was not performing a governmental function and therefore was not a public servant. The Court affirms the judgment of the Appellate Division and remands for proceedings on the four remaining counts. A-36



8. Victim Statement to police not admissible at trial State in Interest of A.R. __ NJ Super. __ (App. Div. 2016)

Appellant, a fourteen-year-old juvenile, was found guilty of sexually touching a seven-year old boy on a bus returning from summer camp. The alleged victim was developmentally comparable to a three-year-old. After getting off the bus, he blurted out to his mother's cousin that appellant had touched him during the ride. Eighteen days later, a detective interviewed the younger child on videotape at the county prosecutor's office. The child repeated the accusation, demonstrating it with anatomical dolls. No eyewitnesses on the bus, including the driver and aide, corroborated the incident.

At a pretrial Rule 104 hearing, the court ruled that both of the child's hearsay statements were sufficiently trustworthy to admit under the "tender years" hearsay exception, N.J.R.E. 803(c)(27). The court then queried the younger child at the start of the trial about his ability to discern and tell the truth. The court twice concluded from the child's troublesome responses that he was not competent to testify under the criteria of N.J.R.E. 601. Nevertheless, the court accepted the child's hearsay statements and trial testimony repeating the accusations, based on the so-called "incompetency proviso" in Rule 803(c)(27), which treats children of tender years as available witnesses even if they are not competent to testify.

The court concluded that the younger child's statements during his recorded interview with the detective were "testimonial" under the Confrontation Clause, as construed by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. The objective "primary purpose" of the interview was to elicit and preserve statements from an identified child victim of sexual abuse about wrongful acts for potential use as evidence in a future prosecution. The child's testimonial statements to the detective here are distinguishable from the non-testimonial statements that a young child victim made to her teachers at school in Ohio v. Clark, 135 S. Ct. 173 (2015).

       Although appellant's counsel attempted to cross-examine the child, that exercise was inadequate to safeguard his confrontation rights, given the child's undisputed incompetency. Hence, the court reversed the admission of the detective's interview and the child's in-court testimony because it violated appellant's constitutional rights. However, as appellant concedes, the child's spontaneous assertion after getting off the bus was not testimonial under the Confrontation Clause and was properly admitted. The court remanded for the trial court to reconsider the proofs in light of the determinations. A-2238-14T3


9. Dismissal of DV can’t be used as bargaining chip in divorce case J.S. v. D.S  __ NJ Super. __ (App. Div. 2016)

Defendant appealed a domestic violence final restraining order (FRO), claiming it was void upon entry – despite the parties' settlement of matrimonial issues that included defendant's consent to the FRO – because the judge did not find an act of domestic violence had occurred. A few days before the scheduled date for oral argument in this court, the parties stipulated to a dismissal of the appeal that would allow for the perpetuation of the FRO.

Notwithstanding their agreement, the court exercised its discretion, pursuant to Rule 2:8-2, and determined that the interests of justice required a disposition of the appeal's merits; the court vacated the FRO due to the lack of a finding of domestic violence, reinstated the TRO, and remanded for a final hearing. A-5742-14T2


10. Mandatory Electronic Filing in Criminal cases in eCourts.

The Supreme Court informed that bar that the Court has determined that electronic filing in Criminal matters using eCourts Criminal is mandatory with certain limited exceptions.

    All attorneys and law firms seeking to file documents in criminal matters must do so electronically through eCourts, except in the following limited instances: (1) cases not tracked in PROMIS/Gavel, e.g., expungements, gun permit filings, municipal appeals; (2) filings that are not part of the court's official case file, e.g., prosecutor discovery pursuant to Rule 3:13-3(b)(1); (3) filings where a fee is specifically required, e.g., municipal appeals, expungements; and (4) Megan's Law filings.



11. New Criminal Rules effective Jan 1, 2017

No more mandatory cash bail for indictable criminal charges.

Everyone with a Warrant gets to spend at least one night in jail !!!  Attorneys need to set up an eCourts login and file Superior Court motions online, or refer cases out.

On Jan. 1, 2017, NJ shifted from a system that relies principally on setting monetary bail as a condition of release to a risk-based system that is more objective, and thus fairer to defendants because it is unrelated to their ability to pay monetary bail. The statute also sets deadlines for the timely filing of an indictment and the disposition of criminal charges for incarcerated defendants.

Source: www.judiciary.state.nj.us/criminal/cjr/index.html



Photo: Eric Morrell & Ken Vercammen were speakers at the Annual Middlesex County Bar Association Municipal Court case update. For information on other MCBA events go to http://www.mcbalaw.com



13. Next programs:

March 2, 2017  Review of recent caselaw for Police. Sponsored by  of Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFA 12 noon, followed by monthly meeting of Retired Police & Fire Middlesex & Monmouth Local 9 meeting NJRPFA At South Amboy Ancient Order of Hibernians, 271 2nd St, South Amboy, NJ 08879

March 20, 2017 Municipal Court College seminar

5:30pm-9:00pm

NJ Law Center, New Brunswick

http://tcms.njsba.com/



May 1, 2017 Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and individuals involved in Probate

Nuts and Bolts of Elder Law

5:00 PM- 9:00 PM NJ Law Center

May 16-17 NJSBA Annual Meeting at the Borgata



July  14, 2017 Happy Hour at Bar Anticipation





Photo text Handling Drug, DWI and Serious Cases in Municipal Court 

Kenneth Vercammen, Esq., Past Municipal Court Attorney of the Year
Tara Auciello  Edison Prosecutor
John Menzel, Esq., Past Chair Municipal Court Section
Norma Murgado, Esq., Chief Prosecutor- Elizabeth & Woodbridge
William Brigiani, Esq., Past President Middlesex County Bar
   The 400 page book written by Ken Vercammen and John Menzel is available from NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION

NJICLE, A Division of the NJSBA NJ State Bar Association  732-214-8500



Index

1. NJ Supreme Court makes “plain view” car searches easier

State v. Gonzales

2. Protective search on house not permitted where no evidence another person present. State v. Bryant

3. Driver with prior school zone DWI sentenced as 2nd Offender State v. Wheatley

4. Town outside surveillance camera not subject to OPRA but maybe subject to common law.

Gilleran v. Township of Bloomfield

5 Twitter statement admissible in criminal trials. State v Hannah

6. No obstruction for failure to provide DL for parking ticket.  State v Powers

7. Official misconduct does not apply to EMT State v. Morrison

8. Victim Statement to police not admissible at trial State in Interest of A.R.

9. Dismissal of DV can’t be used as bargaining chip in divorce case J.S. v. D.S 

10. Mandatory Electronic Filing in Criminal cases in eCourts.

11. New Criminal Rules effective Jan 1, 2017

12 Photo: Eric Morrell

13. Next events:

14. Photo text Handling Drug, DWI and Serious Cases in Municipal Court 



1.       NJ Estate Tax eliminated effective January 1, 2018 and changes to Federal Taxes. In NJ, there is no longer a NJ Estate tax, although there is still an inheritance tax for money that is not going to spouse, children, grandchildren, etc.
     The basic Federal Estate Tax exclusion amount for 2018 is

$5,600,000. For our NJ clients, you can leave to a spouse $100,000,000  [One hundred million to your spouse without tax] This also means you can leave $5,600,000 to children, charity, family etc. without any estate tax with proper tax planning by your attorney.

 In 2018, the annual Federal gift tax exclusion is $15,000.



2. New law permits Executor to be replaced if all parties consent
The new law provides for a voluntary discharge process for personal representatives overseeing the administration of estates, whether those personal representatives were appointed by the Surrogate’s Court or the Probate Part of the Superior Court, Chancery Division.  One beneficiary must agree to serve as the new Personal Representative of the Estate.

The new law is NJSA 3B: 10-30.1  Voluntary discharge of personal representative for an estate.



3.   NJ Inheritance Tax must still usually be paid if assets are going to persons other than spouse or children.   

      Separate from the Estate Tax, New Jersey imposes an Inheritance Tax on the estates of limited resident and nonresident decedents. P.L. 2016, c. 57 made no changes to the New Jersey Inheritance Tax.

        Even if no inheritance tax due, a Tax Waiver on a house must still be obtained and filed if the house was not co-owned by the spouse.



INHERITANCE TAX BENEFICIARY CLASSES

Class A

No Tax

§Parent
§Grandparent
§Spouse
§Child of a decedent (includes legally adopted child)
§Grandchild, great-grandchild, etc. of a decedent
§Stepchild of a decedent
(does not include a step-grandchild or great-step grandchild)

§Mutually acknowledged child
§Civil union partner (after 2/19/2007)
§Domestic partner (after 7/10/2004)
Class C

§Brother or sister of a decedent

§Spouse or surviving spouse of a child of a decedent

§Civil union partner or surviving civil union partner (after 2/19/2007) of a child of a decedent

Class D

§Anyone not included in Classes A, C, or E

Class E

No Tax is due

Including, but not limited to:
§Qualified charities
§Religious institutions
§Educational and medical institutions
§Non-profit benevolent or scientific institutions
§The State of New Jersey or any of its political subdivisions

See exempt organizations Exempt Organizations:

"Class E transferee" means any of the following:

• The State of New Jersey or any political subdivision thereof;
Any educational institution, church, hospital, orphan asylum, public library or Bible and tract society or to, for the use of or in trust for any institution or organization organized and operated exclusively for religious, charitable, benevolent, scientific, literary or education purposes, including any institution instructing the blind in the use of dogs as guides, no part of the net earnings of which inures to the benefit of any private stockholder or other individual or corporation; provided, that the exemption does not extend to transfers of property to such education institutions and organizations of other states, the District of Columbia, territories and foreign countries which do not grant an equal and like exemption of transfers of property for the benefit of such institutions and organizations of this State.



2018 INHERITANCE TAX RATES

Class A- No tax is due



Class C

First $25,000.......................No tax is due

Next $1,075,000................ 11%

Next $300,000..................... 13%

Next $300,000..................... 14%

Over $1,700,000................... 16%



Class D [other people]

First $700,000......................... 15%*

Over $700,000......................... 16%



Class E- charities:  No tax is due


      4. Set up a testamentary trust in your Will for Protection for a second spouse to protect assets for children and grandchildren

         The Credit Shelter Trust (sometimes referred to as a “Bypass Trust” or an “A/B Trust”) was a popular estate planning technique used by married couples with combined assets to avoid the NJ Estate Tax. A Testamentary Trust (sometimes referred to as a Will trust or trust under will) is a trust, which arises upon the death of the testator [person who signed the Will]. A Credit Shelter Trust is a type of Testamentary Trust.

     The purpose of the Credit Shelter Trust was to avoid the wasting of federal and state exemptions on the death of the first spouse. Instead of leaving all assets to the surviving spouse and thereby exposing the surviving spouse’s estate to more tax, Nursing Home & Medicaid issues, plus elective share by a future spouse, both spouse’s Wills are drafted to establish a Credit Shelter Trust to come into existence and be funded on the first spouse’s death.

         Even though NJ has eliminated the NJ Estate Tax, a Testamentary Trust within the Will is still a useful device to help ensure children and grandchildren with receive money down the road. Otherwise, the surviving spouse can spend all the money in Atlantic City. The surviving spouse could also get remarried and do a new Will leaving all assets to the new spouse. Also, if your spouse gets remarried and their new spouse has to go into a nursing home, your spouse may have to use some of your hard earned money to pay for the new spouse’s expensive nursing home. Many families want to protect at least some of the money from wasteful spending or a new spouse.

        In a typical Will Testamentary Trust, the surviving spouse is entitled to receive all of the income from the Trust for his or her lifetime, and has the right to demand principal distributions for his or her health, education, support and maintenance in his or her accustomed manner of living. Distributions in excess of that standard require the cooperation of a Co-Trustee – often an adult child of the surviving spouse or another trusted family member or friend.

        If the Will Testamentary Trust technique is implemented as part of a Client’s Estate Plan, you can hire the attorneys for a separate fee  to assist the Client in re-titling his or her assets so that assets are available to fund the Credit Shelter Trust. Re-titling is necessary because most Clients tend to hold assets jointly with right of survivorship and assets must be titled individually in a person’s name in order to be eligible to fund a Testamentary Trust. We work with a tax attorney to help our clients. Protect your money if you pass away and your spouse gets re-married or has to go into a nursing home.
             Some persons even hire an attorney to set up a personal residence trust or irrevocable trust and have the assets taken out of your name and put into a trust or given to children and grandchildren in the trust. Minimum fees for trust are $3,000. This is not something a non-attorney can do on their own. It is also illegal for a non-attorney to provide legal advice or prepare most legal documents.
        Beware of the “Elective share” rights of a new spouse. Have a Prenuptial Agreement if entering into a 2nd marriage
    Currently, the new spouse who is not given money in a Will can challenge the terms of the Will. This is called "electing against the Will by a spouse". A spouse could receive up to 1/3 of the estate, even if only married for 2 weeks. The spouse must file a Caveat or lawsuit in Superior Court.  We suggest a formal prenuptial agreement in 2nd marriage situations. If there is no Will, the new spouse receives 50% of the estate even if only married three days.


        5. Always have proper Self- Proving Wills since witnesses often move or pass away, don’t rely on cheap online forms

        An old New Jersey Probate law required one of the two witnesses to a Will to travel and appear in the Surrogate’s office and sign an affidavit to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located.  Some witnesses would require a $500 fee to simply sign a surrogate paper. My Grandmother’s Will was not self- proving, and the witness to Will extorted a $500 fee.

        The New Jersey Legislature later passed a law to create a type of Will called a “Self-Proving Will.”  In such a Will, the person for whom the Will is made must sign.  Then two witnesses sign.  Then the attorney or notary must sign; with certain statutory language to indicate the Will is self-proving.  Beware of online documents not prepared by an attorney. Never use a cheap form on line. No one tries to do their own electrical work on their home anymore or change their own oil. Have a professional do it right.

        When done properly, the executor does not have to locate any witnesses. This usually saves time and money.  If your Will is not “self-proving” or if you are unsure, schedule an appointment with an estate planning attorney. Some law offices ignore the revised law, and fail to prepare self proving Wills. Do not use a law office that follows old methods and does not do a self-proving Will. Also make sure your Will includes a formal “no bond required” clause so the executor/ personal representative does not have to spend thousands of dollars being bonded.


      8. Power of Attorney- Do not use a form purchased online.

      A Power of Attorney should contain reference to the NJ statute requiring banks to honor the Power of Attorney. Section 2 of P.L. 1991, c. 95 (c. 46:2B-11). A NJ bank does not have honor a Power of Attorney without the NJ language. Also, if you or your representative move it is a good idea to have a new POA prepared since a bank may give your selected person a hard time if the address on their ID is different than the address on the POA.


       9 Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared

         The federal regulation known as the Health Insurance Portability and Accountability Act (HIPAA) was adopted regarding disclosure of individually identifiable health information. This necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents and interested persons of the patients. 

        Any previously executed Powers of Attorney, Living Wills, Revocable Living Trusts, and certainly all Medical Directives now require HIPAA amendments.  After you sign the Living Will in your attorney’s office, provide a copy to your doctor and family.

         Powers of attorneys and Living Wills should be updated to reference this Federal reg. More information on the HIPAA law at http://www.njlaws.com/hipaa.html

 More information on Wills and Probate at http://njwillsprobatelaw.com

      To schedule an appointment for Wills and Estate Planning
Contact KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817(Phone) 732-572-0500
If you or anyone you know needs an updated Will, Power of Attorney or Living Will, please have them fill out our confidential interview from and schedule a consult.






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