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Sunday, January 23, 2011

E358 1. Reported Case: DWI Defendants Entitled to Breath Test Machine. 2. Reminder- New law Revises Eligibility for Expungement of Criminal and J

NJ Laws Email Newsletter E358
Kenneth Vercammen, Attorney at Law

January 12, 2011


NJLaws.Com LINKS
In This Issue:

1. Reported Case: DWI Defendants Entitled to Breath Test Machine.

2. Reminder- New law Revises Eligibility for Expungement of Criminal and Juvenile Delinquency Records.

3. Tax Planning Advice is Tax Deductible.

4. Estate Tax Changes

-Temporary Estate Tax Relief. Temporary estate, gift and generation skipping transfer tax relief.


5. Office Furniture for Free - Relocating Metuchen Attorney.


6. 2011 Update Wills and Estate Planning Seminar - Rescheduled to March 16, 2011.

Office Phone Number:(732) 572-0500


Greetings Kenneth Vercammen,

1. Reported Case: DWI Defendants Entitled to Breath Machine Data.State v Maricic ___ NJ Super. ___ (App. Div. 2010) A-5247-08T4.

In this DWI matter, the Court held that defendant has the right to discover downloaded Alcotest results from the subject instrument from the date of last calibration to the date of defendant's breath test and any repair logs or written documentation relating to repairs of the subject Alcotest machine, without a showing of prior knowledge of flawed procedures or equipment. Although the requested items were not included in either Special Master King's list of fundamental documents that must be produced by the prosecutor in discovery or the list adopted by the Court in State v. Chun, 194 N.J. 54, 145, cert. denied 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), they are nonetheless of unquestionable relevance to a determination of the reliability of the Alcotest machine and procedures utilized.



2. Reminder- New law Revises Eligibility for Expungement of Criminal and Juvenile Delinquency Records.

This law makes some changes to the criteria for expungement of criminal convictions & adjudications of delinquency and also adds to the list of crimes that may not be expunged.

Expungement of Indictable Offenses Generally Section 1 of the law reduces the amount of time that must elapse before a person convicted of an indictable offense is eligible for expungement. Under current law, subsection a. of N.J.S.2C:52-2 requires a person to wait 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, before applying to expunge a conviction for an indictable offense. The law would allow expungement for an indictable offense although less than 10 years has expired if the court finds that:

Less than 10 years has expired from the satisfaction of a fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered by the court, or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or

At least five years has expired from the date of conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction.

In determining whether compelling circumstances exist, a court may consider the amount of the fine or fines imposed, the person's age at the time of the offense, the person's financial condition and other relevant circumstances regarding the person's ability to pay.

Expungement of Certain Drug CrimesSection 1 of the law also allows expungement of certain convictions for the sale or distribution of a controlled dangerous substance (CDS) or possession thereof with intent to sell. Expungement would be allowed if the convictions involve crimes of the third or fourth degree, and the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense, and the petitioner's character and conduct since conviction. Under current law, a person may not have his conviction for the sale or distribution of a CDS or possession thereof with intent to sell expunged unless it relates to the sale, distribution, or possession with intent to sell a small amount of marijuana or hashish.

Expungement of Delinquency Adjudications Section 2 of the law changes the criteria for expunging a record of an adjudication of delinquency. Under current law, to expunge an adjudication of delinquency, a minimum of five years must elapse after final discharge of the person from legal custody or supervision or after the entry of any other court order not involving custody or supervision. Also, the person must not have been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the five years prior to the filing of the petition for expungement. Section 2 of the law would except periods of post incarceration supervision pursuant to section 25 of P.L.1982, c.77 (C.2A:4A-44) from these five-year periods.

Need for Availability of Criminal Records Factor Section 3 of the law amends N.J.S.2C:52-14 to require a court to determine whether the need for the availability of a person's criminal record outweighs the desirability of freeing the person from the disabilities normally associated with a criminal conviction in cases of third and fourth degree drug offenses. This change is necessitated by section 1 of the law, which authorizes expungement of third and fourth degree convictions for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell. Under prior, a court only weighs this consideration if an objection to the expungement is raised by a law enforcement official.


3. Tax Planning Advice is Tax Deductible

When Estate Planning is done, certain Tax implications are discussed. A portion of your Estate Planning bills are tax deductible when they pertain to tax planning. Discuss this with your accountant when doing your 2010 tax return.

For Estate Planning, we request out clients fill out the Confidential Will Questionnaire. You may want to fax or mail the interview sheet to our office prior to the appointment.

Clients should bring to the appointment:


1. The completed Will Questionnaire Sheet

2. Your questions written out.

3. All papers you have in connection with your Will.

4. If available, you may want to bring at the signing of your Will, not the initial appointment, a list of your assets, along with:


Copy of Real Estate Tax Bills, Health Insurance Policy, Existing Nursing Home Contract (if any), Existing Life Insurance Policies, Life insurance paperwork indicating the face value, death benefit, and cash value with respect to the policy, Copies of all current bank statements, Copies of all Series E or EE bonds, Most current statement from Stock Broker, Most current Mutual Fund statements, Most current statement for IRA account, Most current statement of Qualified Retirement Account (Non-IRA),


Complete copies of any Annuities, Copies of any Notes or Mortgages Receivable by you.

The scope of the services we anticipate performing for you are as follows:

1. Will review and update, if appropriate.

2. Living Will review and update, if appropriate.

3. General Durable Power of Attorney review and update, if appropriate.

At our initial meeting, we will discuss the matter, and provide a written retainer statement. I will quote you a fixed fee for the projected legal work. This way you will know at the beginning what your costs will be. Client can now pay fees by check, Visa, MasterCard, American Express, Discover, cash or money order. Once retained, we will represent your interest vigorously.

As you might imagine, we have many requests for appointments and our schedule is very full. Therefore, we ask that you make every effort to keep your appointment.



4. Estate Tax Changes-Temporary Estate Tax Relief. Temporary estate, gift and generation skipping transfer tax relief.

Prior law phased-out the estate and generation-skipping transfer taxes so that they were fully repealed in 2010, and lowered the gift tax rate to 35 percent. The new 2011 law sets the exemption at $5 million per person and $10 million per couple and a top tax rate of 35 percent for the estate, gift, and generation skipping transfer taxes for two years, through 2012. The exemption amount is indexed beginning in 2012. The law is effective January 1, 2010, but allows an election to choose no estate tax and modified carryover basis for estates arising on or after January 1, 2010 and before January 1, 2011.

The Clinton-era rate of 55 percent with a $1 million exclusion was due to return for 2011. The compromise package sets for two years a rate of 35 percent with an exclusion amount of $5 million. The cost of this provision was estimated at $68 billion.



5. Office furniture for Free - Relocating Metuchen Attorney


Four 6 drawer file cabinets


4 three drawer cabinets


3 two drawer cabinets


3 secretary desks


2 Executive desks,

one real walnut round Conference table


Law Library books


Four Associates desks


Misc office furniture


Call Pete Muscato, Esq. 732-319-5537

407 Main St., Metuchen, NJ 08840

You must pick up 2nd Floor


Editorial Assistance provided by Samantha Farro. Ms. Farro is a Senior at Rider University, majoring in Psychology and is currently participating in Kenneth Vercammen's Winter Internship Program.


E352 1. Selecting A Guardian in Your Will for Minor Children 2. What You Should Know about Organ Donation in Your Living Will 3. State Bar App

NJ Laws Email Newsletter E352
Kenneth Vercammen, Attorney at Law

October 27, 2010


NJLaws.Com LINKS
In This Issue:



1. Selecting A Guardian in Your Will for Minor Children

2. What You Should Know about Organ Donation in Your Living Will



Recent Cases:

4. No More than 180 Days Jail in a Municipal Court Case.


5. No Warrantless Search of Truck Sleeper Compartment Based on Smell of Weed.

Office Phone Number:(732) 572-0500
Greetings Kenneth Vercammen, Esq.,

1. Selecting A Guardian in Your Will for Minor Children

If you have minor children, the most important reason to plan your estate is to ensure proper provisions are made for your children. While it can seem overwhelming to deal with all the issues involved, consider what would happen if you died with no provisions. At that point, your children's guardian would be determined by the courts and there may not be adequate funds available until they reach adulthood, leaving them dependent on the goodwill of relatives.

When selecting a guardian, consider the following:

Who would be the best guardian for your children?

While your first inclination may be to select your parents, consider whether they will have the energy to raise your children. A better alternative may be a sibling or friend. One of your most important considerations will be whether you think that individual will be able to raise your child like one of their own. If you have several children, is it reasonable to expect one person to raise all of them? You may want to name more than one guardian, but make sure the guardians will work together to keep the children as close as possible. If the person you are considering lives in another city or state, consider whether you want to uproot your children while they are going through the trauma of their parents' death. Make sure you're comfortable with the guardian's parental style and moral beliefs.

Have you talked to your selected guardian? Once you've settled on a guardian, discuss your decision with that person to make sure he or she is willing to take on the responsibility? Be sure to name a contingent guardian in case your first choice is unable to serve. Discuss your wishes regarding how you want your children raised, indicating your preferences for education, religion, lifestyle, and other factors.

Have you made adequate financial arrangements for your children? You wouldn't want your children to be a financial burden, or their presence may be resented. Determine how much is needed for living expenses, hobbies, medical expenses, and college. Consider other items as well. For instance, will your guardian's home comfortably accommodate your children, or should you leave funds for an addition to the home? Include a financial cushion so there is plenty of money until your children at least reach adulthood. Should the person who has physical custody also handle their finances? You can name two guardians, one for physical custody and one to handle their finances. Decide whether trusts should be set up and how money should be distributed when your children reach adulthood.

Have you reviewed your choice of guardian recently? Just because you've selected a guardian doesn't mean that person is still the best choice. As your children grow, review your guardian choice every couple of years.

SOURCE: kbowman@bizactions.com

2. What You Should Know about Organ Donation in Your Living Will

When planning your estate, spend some time thinking about whether you want to donate your remains to help another individual or to further medical research. Putting that intent in writing can be a great help to the loved ones you leave behind.

Organ Donation wishes should be included in your Living Will Advanced Directive.

What are the options?

Transplantation: Successful organ and tissue transplant are more common than ever before. Doctors have success using donations to save the lives of people whose organs have been damaged through trauma or disease.

Education or Scientific Research: Perhaps you want to help eradicate a debilitating disease or medical condition. Or maybe you believe that medical students should have the opportunity to study and learn from a body with the conditions you possess. If so, you may want to donate your entire body for research and instruction.

Most medical schools need such donations. These institutions do not accept bodies from which organs have been removed. Each institution has other specific criteria that it uses to determine whether a donation can be accepted.

After the medical school has used a donated body for study or instruction, it will generally cremate and bury, or scatter, the ashes in a specified plot. However, the remains can be returned to family members for burial - usually within a year or two. An attorney can help draft a document that specifies your intentions in this area.

SOURCE: kbowman@bizactions.com

3. State Bar Applauds Municipal Court Law Certification Plan

The New Jersey State Bar Association is pleased the New Jersey Board on Attorney Certification is recommending adding municipal court law to the list of specialties for which lawyers can be certified. Creating Municipal Court Certification was first proposed to the Supreme Court 5 years ago, and many of the most experienced attorneys have supported establishing the Certification program

The state bar brought the concept to the attention of the courts last year, saying municipal court law is a unique and meaningful area of law similar to the other categories the Judiciary already certifies, including matrimonial, civil, criminal and workers compensation.

"The profession and the public will be well served through the certification of municipal court lawyers. For many people, the only exposure to the court system is through the municipal courts which handle roughly 6 million cases each year," said State Bar President Richard H. Steen. "Allowing this certification means people will have an easier time finding a lawyer who is best able to represent them in a municipal court matter."

The state bar will study the court's proposal carefully and submit any comments it may have to the courts for consideration, Steen said.

Attorney certification programs are the result of the U.S. Supreme Court opinion allowing attorneys to advertise their services. In New Jersey, the certification program began in 1980. In order to become a certified attorney, lawyers must take continuing legal education courses for several years, show substantial involvement in litigation, have an unblemished reputation, and pass a written exam.


Recent Cases:

4. No More than 180 Days Jail in a Municipal Court Case. State v. Federico 414 NJ Super. 321 (App. Div. 2010)

Defendant, convicted at a bench trial in municipal court and on trial de novo in the Law Division, may not receive a custodial sentence of more than 180 days for all consolidated charges disposed of in a single proceeding.



5. No Warrantless Search of Truck Sleeper Compartment Based on Smell of Weed. State v. Pompa 414 NJ Super. 219 (App. Div. 2010)

Following his conviction of various drug offenses, defendant appealed the denial of his motion to suppress in excess of thirty pounds of marijuana seized by police without a warrant from a closet in the sleeper cabin of defendant's tractor trailer. The court held that the closely regulated business exception permitted a warrantless administrative inspection of certain areas of the tractor-trailer, but concluded that the search turned unlawful when it progressed into unregulated areas without the exigent circumstances required by State v. Pena-Flores, 198 N.J. 6, 28 (2009).


Editor's Note and Disclaimer:

All materials Copyright 2010. 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


Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court

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