2053 Woodbridge Avenue - Edison, NJ 08817

Wednesday, May 30, 2012

NJ Laws Email Newsletter E394

Greetings Kenneth Vercammen,   
1. Roadside Field Sobriety Tests Require Articulable Suspension. State v. Bernokeits 423 NJ Super. 365 (App. Div. 2011)
The court holds that standard, roadside field sobriety testing does not require the police to have probable cause to arrest or to search, but rather may be undertaken on the basis of a reasonable articulable suspicion alone that defendant was driving while intoxicated.
2. Less Expensive Testing Thermometer is Sufficient with DWI. State v. Holland 423 NJ Super. 309 (App. Div. 2011)

The court holds that sufficient credible evidence supports the remand court's findings that the Control Company digital thermometer is comparable in all material respects to the Ertco- Hart digital thermometer previously used during the Alcotest calibration process, and that the Control Company certificate is facially valid and satisfies the requirements as a foundational document as required by State v. Chun, 194 N.J. 54, cert. denied, 129 S. Ct. 158 (2008).
3. Real Estate Sales  - Spring is the Time to Prepare your Home for Sale 
      To better serve our Probate and Senior citizen clients, Kenneth Vercammen has 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.  Mr. Vercammen is now also a licensed real estate agent, is affiliated with is one of the largest real estate agencies in the country. Even if we cannot handle the closing, we can refer you to realtors or attorneys experienced in real estate purchases or sales.
4. April is National Donate Life Month- Organ Donation

While New Jersey Organ and Tissue Sharing Network (NJ Sharing Network) works to educate New Jersey residents year round about the critical need for more organ and tissue donors, the month of April, associated with renewal and spring, is also National Donate Life Month.  

Established in 2003, the month features local, regional and national educational activities designed to encourage Americans to become organ and tissue donors. We recommend all NJ citizens between 18 and 80 have a Living Will/ Advance Directive prepared. Select organ donation in your Living Will.

Nationally, more than 110,000 people wait for a life-saving transplant-close to 5,000 of them are here in New Jersey. For many, tragically, the gift will never be received. Nearly 6,000 people die a year - about 18 per day - awaiting the gift of life.

One of the most important life-saving decisions you can make is to become a registered donor. Say "yes" to donation on your New Jersey driver license or state ID when you first apply for and each time you renew. The words "Organ Donor" will appear on the front of your license and will be included in your computer record with the Motor Vehicle Commission. Not renewing anytime soon? You can register online today by visiting www.sharenj.org. NJ Sharing Network is a non-profit, federally designated organization responsible for the recovery and placement of donated organs and tissue for New Jersey residents in need of life-saving transplants. For information about donation and transplantation in NJ, contact us at 1-800-SHARE-NJ or info@sharenj.org
5. Join theEdison Community Pool Now and Save!
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, 2012.
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.

Dates and Hours of Operation:

The Pool opens on weekends only from May 26 through June 21- Hours Sat. 11am-8pm and Sun.12-8pm
The pool will be open for the summer starting June 16 through Labor Day
Also available this year swim lessons for children ages 4-6 and 7-8.


Editorial Assistance provided by Sonal Bhatnagar. Ms. Bhatnagar is currently participating in Kenneth Vercammen's Spring Internship Program and will be attending law school in the fall. 

Tuesday, May 29, 2012

E393 1. Asking Location of Handgun Permitted if Exigent Circumstances. 2. Out of Court Statements Not Admissible. 3. Prior NY DWI Counts in NJ for Enhanced Penalty. 4. Nuts & Bolts of Elder Law & Estate Administration Seminar for NJ Attorneys

Greetings Kenneth Vercammen,   
A special thanks goes out to the over 100 attendees of Kenneth Vercammen's St. Patrick's Day Party which was held at Bar A in Belmar on March 16, 2012.  
Stay tuned for details on Kenneth Vercammen's Annual Summer Blast which will also be held at Bar A!  
1. US Supreme Court rules Lab Report Not Admissible in DWI Case.  Bullcoming v New Mexico   131 S. Ct. 2705  (2011)

       The Sixth Amendment's Confrontation Clause gives the accused "[in all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him." In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of "[testimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___, the Court declined to create a "forensic evidence" exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as "testimonial" for Confrontation Clause purposes. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report's statements. 
       The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. 

More law videos at the NJ LawsTube:

       A bill introduced in Trenton would decriminalize and ease the penalties for simple possession of marijuana. Current New Jersey law makes possession of 50 grams or less of the drug a disorderly persons offense. The bill, A-4252, would subject possessors of 15 grams or less of marijuana to civil penalties only, collected by the municipality where the offense takes place. The proposed penalties are $150 for a first violation, $200 for a second and $500 for a third or subsequent one. The measure also would amend N.J.S.A. 2B:12-17 to establish the new offenses as subject to municipal court jurisdiction.   
Source: NJLJ  Daily Briefing 

3.  Contesting a Will Can Be Extremely Difficult         

When a will is contested, it usually means that one or more family members feel they have been unfairly cut out or shortchanged. According to Bizactions, the process varies from state to state and it must be done within certain time limits or the opportunity is lost.

Court Upheld Will that Cut Out Relatives 
   A Rhode Island court upheld a woman's will that ignored her nieces and nephews and left most of her assets to a home caregiver she only knew for 18 months. Her relatives sought to invalidate the will alleging a lack of testamentary capacity and undue influence.    
       Facts of the case. Ann Marie Picillo was already frail and receiving in-home hospice care when she changed her will, according to court documents. She contacted an attorney, Richard Walsh, who represented her in a variety of matters over 18 years and asked him to come to her home. However, Walsh was unable to execute a new will that day.    Picillo was anxious to complete her will and summoned another attorney. The second attorney decided against preparing the will "citing concerns about testamentary capacity, as well as the possible undue influence."    Walsh, her original attorney, then came to the home and met privately with Picillo. Although previous drafts of her will created charitable trusts for animals, Picillo told the attorney her wishes had changed. She now wanted to leave her the bulk of her assets to her employee-caregiver, Cristina Castellanos.   
        The two women met when Picillo was hospitalized and Castellanos was a nursing assistant. After hiring her, Picillo moved the caregiver and her sons to an apartment she owned, sent the children to camp, bought them a dog and spent time with the family.    Picillo suffered from several conditions including rheumatoid arthritis. She was immobile, emaciated, had one leg amputated, and was prescribed morphine for pain.    Several witnesses testified that Picillo raved about her relationship with Castellanos. Without her care, Picillo told Walsh, she would certainly be in a nursing home -- which she vehemently opposed.    Her feelings for Castellanos were in contrast to the animosity Picillo expressed for her nieces and nephews. Both attorneys testified Picillo wanted them out of her will. While the reasons for the negative feelings weren't clear, the court found two incidents "enlightening." The first was when a nephew living with Picillo wouldn't feed her in the mornings. The second was when a niece left her alone for a weekend without food, "sitting in her own waste."   After Picillo met with Walsh, he quickly executed a new will. She died 10 days later.    The court found Walsh's testimony credible, pointing to his long relationship with Picillo, his 24 years of experience practicing law, and the fact he completed more than 200 wills.    The court stated there was a "true and caring relationship" between the caregiver and Picillo, that she had testamentary capacity and there was no undue influence. "Her will is a reflection of the relationships she built during her lifetime," the court added "and the relationships she most appreciated as her demise became inevitable." (Estate of Picillo, R.I. Superior Court, KP2007-1217, 4/26/11)
             The expected "natural" manner, which means to spouses, children and other blood relatives. If a will is changed shortly before death to give everything to a neighbor or a new acquaintance, family members are likely to mount a challenge.However, it can be extremely difficult to successfully contest a will. Courts are reluctant to interfere with the wishes of deceased individuals and require substantial evidence to overturn a will. The goal of courts is to determine testators' true intentions. (For an example of one case in which a court upheld a will executed 10 days before a woman died, see the right-hand box.)Here are the basic reasons a will can be contested:
1. Undue Influence. Was the decedent pressured or influenced during the drafting of the will by someone in a position to benefit from it?

One way this might be proved is with the existence of an earlier will that was significantly different.

For example, a father signs a will naming his daughter and his son as equal beneficiaries of his estate. He gives copies to both children. Ten years later, the father becomes ill and moves in with his daughter. She restricts her brother from seeing him. A short time later, the father dies and the brother finds out that the will was secretly rewritten with all assets going to his sister. He challenges the will on the grounds that his father was unduly influenced and the prior will should be reinstated. The brother claims he was prevented from seeing his father. However, the sister argues that she took care of the father and the brother ignored him. That is her understanding of why the father changed his will.

2. Lack of Capacity. Was the decedent mentally able to understand what he or she was signing? Could the person identify his or her assets and their value? Did he or she know the family members?

Challenges can occur when individuals are sick, weak, and heavily medicated. But merely being in failing health is not enough to successfully contest a will. Courts look at the facts and circumstances to determine if a person was mentally competent. Even someone with Alzheimer's disease can be shown to be in a lucid state at the moment a will was executed.

To show capacity, medical records are important. In some cases, a letter is secured from a doctor at the time a will is executed stating that the person signing a will is mentally competent. Additional witnesses (more than legally necessary) can be present at the signing of the will to provide further evidence that the testator had the necessary capacity.

3. Improper Execution. Was the will signed? Was the signature a forgery? Was there fraud involved? Were the required number of disinterested witnesses in the room when the will was signed? Were the required questions asked in front of the witnesses?

A will can be contested if it is not properly executed. In fact, a court may determine on its own that a will is invalid and not acceptable for probate if formalities were not complied with, including the lack of an affidavit of attesting witnesses. Having an attorney supervise a will provides the presumption that a will was properly executed.

Ways to Help Minimize the Chance of a Will Contest
If you are concerned there may be a dispute over your estate someday, proper drafting and execution of the will can go a long way toward making sure your wishes are ultimately carried out. In addition, you may be able to move assets into a trust or vehicles that pass outside of a will, such as a revocable living trust. You may also want to:
   Insert a "no contest" or "in terrorem" provision into your will that states that if any named beneficiary in contests or seeks to invalidate it because of undue influence or lack of capacity, the person will be disinherited (although this depends on the laws of the state).
Consult with your attorney about specific, proactive steps you should take to ensure your wishes are carried out.
4. Community Events in April

April 14               Edison Elks Installation

April 25               ICLE Nuts and Bolts of Elder Law - NJ Law Center

Charity Running races:

April 21     Runapoloza Jersey Shore Relay For Special Olympics 5,4,3,2,1 teams 26 miles, 9am From Seaside Hts To Asbury Park 732-681-9464 free beer!  If you cant run, you can volunteer or pay to go to party
April 22     Stomp the Monster 5K Marlboro, NJ.  The USAT-certified 5K goes off at 10:30. The event includes a festival featuring beer, food and fun after the race
April 28     Lake Como 5k 10:00 free food and reduced price drinks Bar A after race
April 28     Hugs for Brady  6pm
April 29   Franklin Food Bank  62 mile & 40-mile bike 62 Mile Metric Century -   7:30 AM, $45.00 40 Mile 6 Towns of Franklin -  http://www.franklinfoodbank.org/events/registra_tour.htm

Wednesday, May 23, 2012

NJ Laws Email Newsletter E397

NJ Laws Email Newsletter E397
Kenneth Vercammen, Attorney at Law   

May 23, 2012

Office Phone Number:   

(732) 572-0500

In This Issue:

1. Police use of GPS device on car violates 4thAmendment.       

2. If Not Permitted to Leave, Miranda Applies to Custodial Questioning.

3. No DV if No Purpose to Harass.

4. Community Events:
5. Reflections on Memorial Day

6. If A Loved One Is A Victim Of Nursing Home Abuse, We Can Help

7. House for rent 42 Handy St., New Brunswick 08901








Greetings Kenneth Vercammen,   

1. Police use of GPS device on car violates 4th Amendment United States v Jones 131 S. Ct. 3064 (2012)
The Government's attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle's movements, constitutes a search under the Fourth Amendment. GPS not permitted without a warrant.

2. If Not Permitted to Leave, Miranda Applies to Custodial Questioning.

A police officer's sniffing of a teenage partygoer's breath for alcohol constituted custodial questioning that triggered the right to Miranda warnings, a state appeals court has held. Absent those warnings, defendant Zeb Koch's alleged admission to chugging a beer should have been suppressed, the Appellate Division said in reversing his conviction for underage drinking. The case, State v. Koch, A-602-10, stemmed from what was described as a raucous party of minors on May 8, 2009. The officer's "sniffing of their breath was clearly in a custodial setting," the panel said. "His actions were an implied question to Koch and others to indicate whether they had consumed alcoholic beverages."
Daily Briefing - 09/30/2011, provided as a service to members of the NJSBA.

 3. No DV if No Purpose to Harass.

E.M. v. G.M., App. Div. Defendant appeals from a final restraining order by the Family Part pursuant to the Domestic Violence Act of 1991. Finding that the four incidents relied on by the court to find that defendant had committed domestic violence based on the petty disorderly persons offense of harassment are devoid of evidence showing defendant's purpose was to harass plaintiff and that there is no competent credible evidence that final and permanent restraints are necessary to protect plaintiff from future abuse where the court rejected plaintiff's account of physical abuse at the hands of defendant as not credible, the panel reverses.

4. Community Events:
     May 25, 2012 - "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 5:30 D'Jais, 7:30 Bar A Not a race, just great social event. Show your support for the USA by putting American flag stickers on 21-year-olds
50th Annual Edison Memorial Day Parade
   As 2012 marks the 50th Anniversary of the parade we are in the process of planning a larger, more exciting event! The parade, hosted this year by VFW Post Number 3117, will begin at 1 p.m. Sunday, May 27th.  Staging area and kickoff will be on Division Street.  The route to be followed is Plainfield Avenue to Jefferson Boulevard ending at Post #435 on Oakland Avenue.   The reviewing stand will be on Plainfield Avenue at Seymour Avenue. http://www.edisonnj.org 
Memorial Day Parade 2012-Honoring Our Women in the Military
On Memorial Day, Monday, May 28, 2012, Metuchen will continue its tradition with one of the area's longest established Memorial Day parades; the first one was held on May 30, 1927.  The parade begins at 10:00 a.m., rain or shine, from Metuchen's Pearl Street parking lot.  It will proceed across Center St., turn right (north) onto Route 27, and right onto Main Street.  The parade will continue through the tree-lined streets of beautiful Metuchen and turn right onto High Street and then right again onto Lake Avenue where it will end at Memorial Park with a brief ceremony. This year's ceremony features remarks from guest of honor, Rear Admiral Timothy Beard, III of the US Naval Reserve and an invocation lead by Rev. Hazel Shue, Chaplain, Commander, U.S. Navy.

Memorial Day in Metuchen honors the lives of the forty-one Metuchen men who sacrificed their lives in our nation's wars and the many Metuchen men and women currently serving in the armed forces.  The Memorial Day Parade Committee invites all veterans, community groups, scouts and youth groups to be a part of this very special day!

5. Reflections on Memorial Day

Memorial Day used to be a solemn day of mourning, a sacred day of remembrance to honor those who paid the ultimate price for our freedoms. Businesses closed for the day. Towns held parades honoring the fallen, the parade routes often times ending at a local cemetery, where Memorial Day speeches were given and prayers offered up. People took the time that day to clean and decorate with flowers and flags the graves of those the fell in service to their country.
We need to remember with sincere respect those who paid the price for our freedoms; we need to keep in sacred remembrance those who died serving their country. We need to never let them be forgotten. However, over the years the original meaning and spirit of Memorial Day has faded from the public consciousness.
"If it is considered a holiday, why is it so? I consider it to be a national day of mourning. This is how we observe this day in our home. Because of what that day represents the rest of the days of the year are our holidays." -- F L Lloyd West Chester, Pa USA - February 26, 2000

On Memorial Day we need to stop and pay with sincere conviction our respects for those who died protecting and preserving the freedoms we enjoy, for we owe those honored dead more than we can ever repay.

6. If A Loved One Is A Victim Of Nursing Home Abuse, We Can Help

         Over 1.5 million seniors live in nursing homes. Although they are entitled to receive proper care, unfortunately many suffer from severe abuse and neglect, including poor medical care, bad sanitation, and physical and verbal abuse.

         If you have a loved one in a nursing home make sure he or she is being treated properly. If you think a loved one is being abused or neglected, call us. We can contact persons to help stop the wrongful conduct and obtain damages for it.

7. House for rent 42 Handy St., New Brunswick 08901
2 blocks from Douglas/Cook  
 Save money with NEW COST EFFICIENT FURNACE/PROGRAMMABLE THERMOSTAT/DOORS & WINDOWS, Huge closets, basement with separate entrance.  Washer, dryer, dishwasher. Corner property with fenced backyard. Street permits for parking, garage available. 3 bedrooms  $1750 per month.  Ideal for Rutgers students
732-816-4449 edison2llc@live.com

Editorial Assistance was provided by Taylor Votek. Ms. Votek is currently participating in Kenneth Vercammen's Summer Internship Program and will be entering her Junior year at The University of Miami.

Saturday, May 05, 2012

House for rent 42 Handy St., New Brunswick 08901

House for rent 42 Handy St., New Brunswick 08901
2 blocks from Douglas/Cook   
  Save money with NEW COST EFFICIENT FURNACE/PROGRAMMABLE THERMOSTAT/DOORS & WINDOWS, Huge closets, basement with separate entrance.  Washer, dryer, dishwasher. Corner property with fenced backyard. Street permits for parking, garage available.  $1750 per month.  Ideal for Rutgers students
 732-816-4449 edison2llc@live.com