Kenneth Vercammen, Esq is Chair of the ABA Elder Law Committee and presents seminars to attorneys and the public on Wills, Probate and other legal topics related to Estate Planning and Elder law. Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year and is a lecturer for American Bar Association on Estate Planning for Same Sex Couples. He was a speaker at the 2012 ABA Annual Meeting attended by 10,000 attorneys and professionals.
To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

visit Website www.njlaws.com

Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500

Sunday, January 4, 2015

Arrested for dwi DUI? Pretrial Motions 1. Jury Trial 2. Punishment 3. Vagueness 4. Suppress Evidence 5. Miranda/Privilege 6. Test Ampoules 7. Exclude Breath Tests 8. Discovery 9. Reciprocal Discovery 10. Speedy Trial 11. Notice of Objection

Arrested for DUI?
Pretrial Motions                
1. Jury Trial
2. Punishment
3. Vagueness
4. Suppress Evidence
5. Miranda/Privilege
6. Test Ampoules
7. Exclude Breath Tests
8. Discovery
9. Reciprocal Discovery
10. Speedy Trial
11. Notice of Objection

Post Disposition motions
     12. Enhanced Penalties
     13. Protective Order
     14. Stay


PRE‑TRIAL MOTIONS

        At a time to be set by the Court, Defendant will move for Orders pursuant to R. 3:10‑5, 3:13‑1, and 7:7-7, as follows and requests oral argument pursuant to R. 1:6‑2(d) to preserve all of defendant's rights and defenses:

1. Jury Trial. Defendant will move for trial by jury. Blanton v. North Las Vegas, 109 S.Ct. 1289, l03 L.Ed.2d 550 (1989).

2. Punishment. Defendant will move to dismiss the 39:4‑50 complaint because statutory punishments are cruel unusual in that they are disproportionate to a motor vehicle violation and contrary to US Constitutional. (Amendments VIII and XIV N.J. Const. Art. 1, para. 1'. See Gregg v. Georgia, 428 U.S. 96 S.Ct. 2909. 49 L.Ed.2d 859 (1976); State v. Smith, 58 N.J (1971).

3.  Vagueness. Defendant will move to dismiss the 39:4‑50 complaint because the statute, at least as to the so-called "per se" violation, is vague and contrary to U.S.  Amends. V, VI, IX, and XIV, and N.J. Const. Art.1, paras.1, 5, See Kolender v. Lawson, 461 US. 352, 103 S.Ct. 18S 903 (1983).

4. Suppress Evidence. Defendant will move to suppress, evidence obtained by the State during its investigation of case, pursuant to R. 3:5‑7 and 7:5-2, because evidence‑‑ie defendant's person, breath, blood, and/or other things‑‑was seized unlawfully, without a warrant and contrary to U.S. Const. Amends. IV and XIV and N.J. Const. Art.1, para.7. Defendant believes the State will use this evidence in proceedings before this Court on the above captioned charges.

5. Miranda/Privilege. Defendant will move to exclude statements by, and evidence obtained from, Defendant during the State's investigation of this case because the statements and evidence (a) create substantial danger of undue prejudice to Defendant contrary to Evid.R. 403 (previously Evid.R. 4), (b) are privileged under Evid.R. 503 (previously Evid.R. 25), and (c) were obtained contrary to U.S. Const. Amends. V, VI, IX, and XIV,
NJ Constitution 1, paras.1, 10, and 2], and requirements stated in Miranda v. Arizona, 384 US. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny.

6. Test Ampoule. If police used a breath testing instrument in this case, Defendant will move to either dismiss the N.J.S. 39:4‑50 complaint or exclude evidence of breath test results because the State destroyed material relevant evidence‑‑i.e., test ampoules used in Defendant's breath tests‑‑contrary to U.S. Const. Amends. V, VI, IX, and XIV, and N.J. Const. Art.l, paras.1, 10, and 21.

7. Exclude Breath Tests. If police used a breath testing instrument in this case, Defendant will move to exclude evidence(‑ of breath test results because (a) the Attorney General failed to exercise administrative authority and prescribe methods and procedures for periodic inspection of breath testing instruments as required by N.J.S. 39:4‑50.3, and (b) without such properly prescribed methods and procedures, the State cannot lay the foun­dation needed for admission of breath test results into evidence at trial. See Romano v. Kimmelman, 96 N.J. 66, 81 (1984).

GENERAL PROVISIONS

8. Discovery. 8.1. Defendant requests that the State either produce or permit Defendant's attorneys to inspect and copy or photograph any relevant discovery as required by Rule 3:13-3, Rule 7:7-7(b) (Effective February 1. 1998), the Right to Know Law NJSA 47:1A-1 et seq. and the common law right to know under Shuttleworth v. City of Camden, 258 N.J. Super. 573 (App. Div. 1992). Including all relevant items specifically listed on the DISCOVERY requests submitted. Defendant further requests that the Court enter a DISCOVERY ORDER, provided the prosecutor neither sends notice of specific objections in writing pursuant to R. 3:1‑4 nor moves timely for a protective order pursuant to R. 3:13‑3(d).

8.2. If the State fails to provide discovery as requested herein, Defendant may move either before or during trial pursuant to R. 3:13‑3(f), R. 3:17‑4, and Evid.R. 807 (previously Evid.R 64), as applicable, for an Order (a) permitting discovery or inspection of undisclosed materials, (b) granting a continuance, (c) prohibiting introduction in evidence of undisclosed material, (d) monetary sanctions, (e) dismissal of the charges, and (f) such other order as the Court deems appropriate.

9. Reciprocal Discovery. 9.1. Defendant may call certain fact witnesses to testify, inter alia, that:

a) they have known Defendant, b) they saw Defendant before or after police saw Defendant, c) Defendant was not under the influence of alcohol and was to operate a motor vehicle, d) there was no unexplained motor vehicle operation, and e) there was no articulable suspicion that Defendant had violated the law. The witnesses will  be named following/ after  the state provides complete discovery as set forth on Schedule A.

Defendant may call the following experts to testify, inter alia, about each breath testing instrument ["BTI"] or other analytical device ["AD"] used to test substances seized from Defendant:

a) BTI/AD was not approved, b) analysis method was not approved, c) BTI/AD used is scientifically unreliable, d) analysis method was scientifically unreliable, e) BTI/AD components were not properly inspected, f) BTI ampoules did not contain chemicals of proper quality or quantity to give reliable readings, g) BTI/AD was not properly inspected, h) BTI/AD operator was not properly qualified, i) test conditions, such as temperature and atmospheric pressure, at time of analysis and inspection were not proper, j) BTI/AD inspections were not properly periodic or blanked, k) BTI/AD was not properly inspected for RFI, l) Defendant could not have given them m) BTI/AD test records were not properly used, n) BTI ampoules were not properly gauged, o) BTI/AD operation was not proper, and q) analytical tests were not done within a reasonable time of Defendant's alleged motor vehicle operation.

Expert  Dr. Richard Saperstein,  and/or Others to be provided if and when retained following receipt of the state's expert.

9.2. Defendant may use demonstrative and documentary evidence, which the State may inspect and copy or photograph after paying reasonable expenses therefor: a) photographs c) video e) maps g) pharmacy records h) films d) diagrams f) medical/hospital h) weather records

10. Speedy Trial. Defendant demands a speedy trial pursuant to U.S. Const. Amend. VI and N.J. Const. Art.1, para.10.

11. Notice of Objection. If the State gives notice of intent to proffer a certificate executed by a laboratory employee pursuant to N.J.S. 2C:35‑19c, Defendant hereby objects to it on the grounds that Defendant intends to contest at trial the composition, quality, and quantity of substances submitted to the laboratory for analysis.

POST‑DISPOSITION MOTIONS

12. Enhanced Penalties. If defendant is a subsequent offender under either N.J.S. 39:3‑40, 4‑50, 4‑50.2, 4‑96, 6B‑2, or other statute, Defendant may move to exclude use of prior convictions to enhance penalties pursuant to these statutes on grounds to be determined after further investigation.

13. Protective Order. If Defendant pleads guilty to any charge captioned above, Defendant will move that such plea shall not be evidential in any civil proceeding.

                         

Fighting a DWI DUI Driving Under Influence
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. Our office helps people with traffic/municipal court tickets throughout New Jersey, including drivers charged with DUI/DWI and refusal. Driving Under Influence and other Motor vehicle violations can cost you.
You will have to pay fines in court, or receive points on your driver's license. A conviction will require you to pay expensive surcharges to the N.J. MVC [Division of Motor Vehicles] and have your license suspended. In New Jersey, the Judge does not have to rule that you were drunk.
The prosecutor only needs to prove a driver was under the influence of alcohol. Don't give up! The Law Office of Kenneth Vercammen offers information and can provide experienced attorney representation for Driving Under Influence and other Motor vehicle violations. When your driver's license is in jeopardy, or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Please schedule an appointment if you need experienced legal representation in a traffic/municipal court matter. Our website njlaws.com provides information on traffic offenses of which we can be retained to represent people. Our website also provides details on jail terms for Driving Under Influence and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
In New Jersey Driving Under Influence (DUI) and Driving While Intoxicated (DWI) are the same charge.
      Due process requires the State disclose evidence that is material to either guilt or punishment; indeed, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise reasonable doubt about a defendant's guilt. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United States v. Agurs, 427 U.S. 97, 98 S.Ct. 2392, 49 L.Ed. 2d 342 (1976). A wide variety of materials in the State's possession could constitute exculpatory information to which a defendant is entitled. Ford, supra at 52
      A demand for discovery has been served upon the prosecutor who has the responsibility to answer. State v. Tull, 234 N.J. Super. 486, 494 (Law Div. 1989). A defendant's right to discovery is not dependent upon an appraisal of the beneficial value of the material sought to be discovered. State v. Polito, 116 N.J. Super. 552 (App. Div. 1977), Ford, supra at 51). Thus, a prosecutor is expected to act reasonably when responding to a discovery demand. Tull, supra at 496. The prosecutor may not refuse a discovery demand simply because the information or materials sought are not in the municipal offices or within easy reach. Id. at 495. The municipal prosecutor cannot refuse production on the ground that the requested information is not known by the prosecutor personally to be in existence when its existence is either common knowledge of the police department or when the knowledge could be obtained by reasonable inquiry. Id. at 500.  
     The municipal prosecutor must either object to what the prosecutor perceives to be irrelevant discovery requests, or respond within 10 days of the receipt of the defendant's request for discovery. Ford supra at 51; see Tull, supra at 500. The municipal prosecutor may be sanctioned for failing to provide discovery. R.3:13_; see State v. Audette, 201 N.J. Super. 410 (App. Div. 1985) State v. Polasky, 216 N.J. Super. 549 (Law Div. 1986). A defendant who believes the State has not supplied relevant materials reasonably required for the defense may give notice to the State and the court prior to the date set for commencement of trial where possible. Ford, supra at 52. Information relating to prerequisite conditions establishing reliability is highly relevant, Ford, supra at 52, and extremely material. Id. at 51. Thus, information concerning conditions under which tests were held, the machine operator's competence, the particular machine's state of repair and identification, and documentation of the ampoule used for defendant's breath tests are all relevant inquiries. Id.
Conclusion
      If charged with Driving While Intoxicated, immediately schedule an in-office appointment with a trial attorney. Don't rely on a real estate attorney, public defender or a family member who simply attended law school. When your driving privileges and ability to drive to work is on the line, hire an experienced attorney.
KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030
TRIAL AND LITIGATION EXPERIENCE In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He appears in Courts throughout New Jersey several times each week on many personal injury matters, Criminal and Municipal/ traffic Court trials, Probate hearings, and contested administrative law hearings.


Monday, December 8, 2014

2c:14-4

A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other non consenting persons who would be affronted or alarmed.1
In order to establish the guilt of the defendant the burden is upon the State to prove beyond a reasonable doubt each of the following elements of the offense. They are that on
(date) in the page1image8792 page1image8992(place) the defendant committed an act: 1. which was flagrantly (conspicuously bad) lewd and offensive.
Lewd means sexually indecent behavior. Lewd acts shall include (but are not limited to) the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the defendant (or any other person).
Offensive means an act that is grossly vulgar and causing resentment, one which offends common modesty and delicacy.
2. which the defendant knows or reasonably expects is likely to be observed by non consenting persons who would be affronted or alarmed.
(Define Knowledge)
In other words the State must prove that the defendant intended his/her act to be seen or he/she was aware that (it was probable) it would be seen by casual observers if they had looked.
The defendant's act must be done knowingly and not accidental and further it must be under circumstances through which the defendant knew his/her conduct would or was likely to
1

page1image18128 page1image18288 page1image18448 page1image18608 page1image18768 page1image18928
The statute abandons the limitation of "public" lewdness and broadens the prohibited activities to private as well as public places relying instead on the "circumstances." N.J. Penal Code Commentary. p. 201. But see State v. Ramos, 203 N.J Super 206 (Law Div. 1985).
page1image21424 page1image21584


LEWDNESS (N.J.S.A. 2C:14-4) Page2 of2
cause alarm to those disinterested, casual, non-consenting spectators who would consider the behavior as threatening sexual aggression. 

Wednesday, November 26, 2014

WCTC 1450am radio Dec 2 Rutgers Bias case and Sayreville hazing case Judge Glen Berman JSC retired


Dec 2 Rutgers Bias case and Sayreville hazing case  Judge Berman
WCTC 1450am radio Tuesday 6pm show “NJ Law Talk with Ken Vercammen.”
Topics: Dec 2 Rutgers Bias case and Sayreville hazing case  special guest  Judge Glen Berman JSC retired
 Ken Vercammen is the new host of WCTC 1450am radio Tuesday 6pm show “NJ Law Talk with Ken Vercammen.”

       Listen on WCTC 1450am, or on the Internet at http://www.wctcam.com and now on I heart radio, just type in WCTC. To call in, dial 732-545-9282 or 888-545-9282 [WCTC]
Ken Vercammen is the author of the American Bar Association’s upcoming book “Wills and Estate Administration”. Kenneth A. Vercammen is a trial attorney in Edison, NJ. He is co-chair of the Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  He is a speaker for the NJ State Bar Association at the annual Elder Law & Estate Administration program.
Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on litigation, elder law, probate and trial topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. He established the NJlaws website www.njlaws.com which includes many articles on Estate Planning, Probate and Wills.

Thursday, November 13, 2014

Review of the Major Municipal Court Cases from 2013-2014

Review of the Major Municipal Court Cases from 2013-2014
 Nov 25th Municipal Court Practice CLE Seminar 
When:      Tuesday, November 25, 2014 2:00 PM until 4:00 PM  Where:     MCBA Office 87 Bayard Street New Brunswick, New Jersey  08901 
Presenters:     Kenneth A. Vercammen, Esq., Edison  William G. Brigiani, Esq., East Brunswick 
To Register: http://www.mcbalaw.com/event/id/465040/Nov-25th-Municipal-Court-Practice-CLE-Seminar.htm   

Info Contact:    MCBA Jonathan Cowles  jcowles@mcbalaw.com 
Phone: 732.828.3433, x. 102           
             
Cost: $30-Young Lawyers; $40-MCBA Members; and $75-All Others
Click here to download a reservation form.
This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 2.0 hours of total CLE credit. Of these, 2.0 credits qualify for certification in municipal court law.



Some of the featured cases will include:
State v Kates - Defendant can be entitled to Adjournment to Select Own Counsel;
State v. Gibson - Police can’t search just because person is in no loitering area;
State v. Coles - If Defendant detained, third person’s consent to search no good;
State v. Lamb - Co-Occupant consent to search valid;
State v. Witt - Suppression granted where stop based on driver high beams on;
State v. Frye - Prior DWI counts for enhanced refusal;
State v. Jones - No warrant for DWI blood needed tickets issued before 2013;
State v. Sylvester - Driving While Suspended conviction upheld although DWI conviction vacated;
. . . and a review of the most significant cases from 2013.
Top New Laws: New law finally establishes a Conditional Dismissal for 1st time offenders in Municipal Court

BY KENNETH A. VERCAMMEN

1 Court cannot consider Suppression Motion testimony unless agreed by defendant  State v Gibson __ NJ __ A-11-13


2  US Supreme Court requires warrant before taking of blood in DWI
 Missouri v McNeely 133 S. Ct. 1552 (2013)
       

3 Police seeing defendant-smoking joint in open door justified the warrantless entry into defendant’s apartment and the seizure of the marijuana cigarette.
 State v Walker 213 N.J. 281 (2013)


4 Sixteen-month delay for DWI inhibited defendant’s speedy trial right. State v Cahill 213 N.J. 253 (2013)


5 Bias statute requires proof of defendant intended bias, not victim perception. State v. Pomianek 213 N.J. 253 (2013)

6 Municipal Court Judge must recuse where there is an appearance of impartiality, not just actual conflict
   Judge can’t hear police cases in town where his son is a cop.
  In the Matter of ADVISORY LETTER NO. 7–11 OF the SUPREME COURT ADVISORY COMMITTEE ON EXTRAJUDICIAL ACTIVITIES 213 NJ 63 (2013)


7 Investigator violated rules by destroying notes. State v. Dabas 215 NJ 114 (2013)
         

8 Sometimes AIR permitted mid trial where defense did not claim prejudice
State v Wolfe 431 NJ Super. 356 (App. Div. 2013)
       
9 Prosecution should not interfere with defense ability to interview witnesses
State v Blazas 432 NJ Super. 326 (App. Div. 2013)
        

10 Police Officer reading inaccurate refusal warning is not a defense to refusal charge
State v. O’Driscoll 215 NJ 461 (2013)
           

11 Court must examine perceived attorney conflict before hearing motion to adjourn.
State v Vasquez 432 NJ Super 354 (App. Div. 2013)


12 Cellphone can’t be tracked without warrant State v. Earls 214 N.J. 564 (2013)


13. No suppression of blood result from 2008 based on 2013 new case
State v Adkins 433 NJ Super. 479 (App. Div. 2013)



14. After eviction, tenant does not have expectation of privacy State v Hinton 216 NJ 211(2013)
         

15. The community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency. State v Vargas 213 N.J. 301 (2013)
        

16. Denying Public defender client adjournment did not violate rights State v. Miller 216 NJ 76 (2013)

17. Failure by State Police to create and maintain a centralized statewide database not a violation of the Supreme Court Chun Order. 
State v Chun 215 NJ 489 (2013)   
         
18. Defendant can be entitled to Adjournment to Select Own Counsel. State v Kates 216 NJ 393 (2014)

19. Police can’t search just because person is in no loitering area.
    State v. Gibson 214 NJ 564 (2014)

20. In the Matter of Louis DiLeo 216 NJ 449 (2014)
         The Judge should have adjourned trial for defendants to have an attorney

21. If Defendant detained, third person’s consent to search no good. State v. Coles 217 NJ 467 (2014)

22. Co-Occupant consent to search valid. State v. Lamb ­­­­­

23 If mandatory 180 days without parole, can’t get credit for inpatient State v. French  __ NJ Super. __ (App. Div 2014)

24 Suppression granted where stop based on driver high beams on. State v. Witt 435 NJ Super. 608 (App. Div. 2014) 
25. Prior DWI counts for enhanced refusal. State v. Frye ­­­217 NJ. 566 (2014)

26 Driving While Suspended Conviction Upheld Although DWI Conviction Vacated. State v. Sylvester __ N.J. Super. __ (App. Div. 2014

27. No warrant for DWI blood needed for tickets issued before 2013. State v, Jones __ NJ Super. __ (App. Div. 2014)

Supervising chemist can testify in vehicular homicide if they independently verified correctness of blood test results State v. Michaels ­­­­__ NJ__ (2014)

29 Supervising chemist can testify in rape case if they independently verified correctness of DNA results State v.  Roach __ NJ __ (2014) 

30 Defendant has burden to timely to object to testimony by pathologist who did not perform the victim’s autopsy State v. Williams __ NJ__ (2014)

31 For unlicensed driver, can’t get both fine and jail. State v. Carreon __ NJ Super. __ (App. Div. 2014)

      Top new Laws:
       New law finally establishes a Conditional Dismissal for 1st time offenders in Municipal Court. Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.

No insurance Law 39:6 R-2 amended to provide discretion for no DL suspension