Defense of Criminal charges

Defense of Criminal charges

        We provide all my clients with written information explaining how to appear in court, information on surcharges, information on points, and information regarding substance abuse treatment, if applicable.

Once we receive our retainer (are paid), we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor/district attorney and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case and to inquire who handles discovery. We check the Lawyers Diary to determine who are the judges and prosecutor/district attorneys for the county or town. It is important to learn about the judge and the prosecutor.

We require a great deal of cooperation from our clients in an effort to help keep their costs reasonable. We require our clients to take photographs of accident sites and prepare diagrams and provide us with the names, addresses, and telephone numbers of witnesses.

I recommend that my clients provide me with a list of between 10 to 15 reasons why they should not go to jail and why court should impose the minimum license suspension. We recommend they obtain a Motor Vehicle Abstract. This provides us with information for mitigation of penalties and also provides information to be considered by the judge in sentencing.

3. Post Interview Work

       Many states have programs for first time offenders who have never previously been arrested or previously convicted of a criminal offense. Again, to avoid embarrassment it is a good idea to speak with the prosecutor/ district attorney and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a diversions type program.  We also make a Motion to Suppress where there is a question regarding the validity of a stop or search. Any other Motions to Dismiss should be made in writing such as statue of limitations or lack of jurisdiction.

       Oftentimes in cases that deal with just one triable issue such as the admissibility of a blood test result in alcohol or drugs, we can make a Motion in Limine or suggest a pre-trial conference. It is often a good idea to try to know how the judge will decide in order to save us a three-hour trial on a complicated case. If the court rules against us in the Motion in Limine we can enter a guilty plea contingent upon reserving your right to appeal on that one issue.

4. Discovery Phase

       Oftentimes we do not receive all of the discovery that we request. We send a letter to the prosecutor requesting additional discovery and request that the discovery be provided within 10 days. If we do not receive the discovery with 10 days then we prepare a Motion to Compel Discovery.

       In the case involving essential witnesses, we occasionally write to the witnesses and ask them to call us so that we can find out what really happened. If possible I have a law clerk call up after we send the initial letter. The attorney cannot testify if the witness provides an inconsistent statement but our law clerks can testify. I sometimes speak to friendly witnesses myself later to make a decision to determine whether or not the witnesses are credible. 

Upon receiving discovery, we forward a photocopy of all discovery to our client. We then discuss with the client whether or not they have a reasonable prospect of winning.

       

In drunk driving cases we review the videotape with the client prior to the trial date and sometimes make arrangements to retain an expert. 

5. Preparing for Court

       If it is a drug case, we should make an objection to the entry of the lab certificate as evidence at trial. We are also under a responsibility to provide any reciprocal discovery to the prosecutor. Occasionally, in a court where there is only one prosecutor you should call the criminal court prosecutor ahead of time to see if a matter can be worked out or plea bargained. Some Criminal prosecutors in lower courts work part time and are not compensated for the many telephone calls they get in their offices.        

       If we discover a favorable case, we make a copy for the judge, prosecutor, and client. Never assume the part time prosecutor or judge is familiar with all the laws. We can prepare a Subpoena ad Testificandum for witnesses to testify and Subpoena Duces Tecum for witnesses to bring documents.  We have our clients hand deliver the Subpoenas and write out their own check for the subpoena fees. It is better to be over-prepared than under-prepared. 

       Over the years I have made it a practice to build up files on particular legal subjects with complete case law. I now have files for drunk driving, driving while suspended, drug possession, assault, and careless driving. 

       When we receive the hearing notice we send a follow up reminder to the client to be on time, bring all papers and call 24 hours ahead to confirm the case is still on the calendar. The client should be prepared and look neat. The Grateful Dead and Budweiser T-Shirts should be replaced with something that looks presentable. They should have their pregnant wives sitting next to them.     

       Preparation is the key to winning cases or convincing the prosecutor of exceptional defenses. Upon arrival at court, we will attempt to ascertain if the police officer is available. Sometimes the police officer is on vacation, retired, or suspended. This may assist your ability to work out a satisfactory arrangement. 

       There is no prohibition against speaking with States witnesses in a non-threatening way. Outside of the courtroom, I usually call out the name of the non-law enforcement States witnesses to determine what their version of the facts are. If we have an excellent trial issue but believe the judge is going to rule against us, we bring an appeal notice and file it with the Court on the Record. I keep in my car blank forms for Order to Compel Discovery, Order Mark Try or Dismiss, Order to be Relieved, and an Appeal Notice.

6. Plea to a Lesser Defense

       If the client is going to enter a guilty plea to an offense, it is important they understand what the offense is and put a factual basis on the record.  The Judge will be angry if a person is pleading guilty to a drunk driving case and the judge asked them what he had to drink, the person insists he only had one beer. The judge will send us back to our seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record. 

       

Having previously obtained for my clients their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.  

       

Letters of reference and character reference letters are helpful in cases where the judge has wide discretion in his sentencing. After the client pleads guilty, it is a good idea to also ask the client on the record if he has any questions of myself or of the court. 

7. Conclusion 

              

Whether or not we have a trial or there is a plea to reduce the charge, I wish to walk out knowing I did the best you could for the client. Even if I lose, I want to have been such an articulate advocate that the client walks out saying my attorney is great but the judge is wrong. We try to be innovative and prepare new arguments. We handle a substantial amount of criminal court and personal injury cases and have put case law and certain legal defenses on our website: www.NJLaws.com. 

       About the Author: Kenneth A. Vercammen is an Edison, Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on criminal court and litigation topics. 

Elective share of surviving spouse in New Jers

Elective share of surviving spouse in New Jersey

   What is my share of my spouse's estate if I elect to take against the will of my deceased spouse? 

       In general, a surviving spouse dissatisfied with his or her share under the Will of the deceased spouse may renounce the will and elect to take his or her statutory share of the testator’s entire estate. The surviving spouse is entitled to one-third of the estate provided that at the time of death, the surviving spouse and decedent had not been living separate and apart in different habitations. Generally, the surviving spouse must elect to take his/her elective share by filing a complaint within six months after the appointment of a personal representative of the decedent's estate. 

       Whether to elect to take against a Will is a decision that cannot be made without comprehensive information regarding the affairs of the spouses. This is not a matter for self-help and referral to an attorney familiar with estate administration is normally required.

       The following is the revised New Jersey Law on Elective share of surviving spouse

       Godfrey Statutes in support of Elective Share 

   

3B:8-1 Elective share of surviving spouse or domestic partner of person dying domiciled in this State;  conditions.

     Elective share of surviving spouse or domestic partner of person dying domiciled in this State; conditions.

   If a married person or person in a domestic partnership dies domiciled in this State, on or after May 28, 1980, the surviving spouse or domestic partner has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated, provided that at the time of death the decedent and the surviving spouse or domestic partner had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.

   Amended 2005, c.331, s.7.

   3B :8-3 .  Meaning of "augmented estate."

   The "augmented estate" means the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, or during a domestic partnership, to or for the benefit of any person other than the surviving spouse or domestic partner, to the extent that the decedent did not receive adequate and full consideration in money or money's worth for the transfer, if the transfer is of any of the following types:

   a.   Any transfer made after May 28, 1980, under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property;

   b.   Any transfer made after May 28, 1980, to the extent that the decedent retained at the time of his death a power, either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his own benefit;

   c.   Any transfer made after May 28, 1980, whereby property is held at the time of decedent's death by decedent and another with right of survivorship;

   d.   Any transfer made, after May 28, 1980, if made within 2 years of death of the decedent, to the extent that the aggregate transfers to any one donee in either of the years exceed $3,000.00.

   Amended 2005, c.331, s.9.

3B:8-4.  Valuing property transferred

    Property transferred in the manner set forth in N.J.S. 3B:8-3 is valued as of the decedent's death except that property given irrevocably to a donee during the lifetime of the decedent is valued as of the date the donee came into possession or enjoyment of the property if that occurs first.

3B:8-5.  Transfers excluded.

   Any transfer of property shall be excluded from the augmented estate under N.J.S. 3B:8-3, if made with the written consent or joinder of the surviving spouse or domestic partner.  There shall also be excluded from the augmented estate any life insurance, accident insurance, joint annuity or pension payable to a person other than the surviving spouse or domestic partner.

   3B :8-6 .  Other property to be included in augmented estate.

   There shall also be included in the augmented estate:

   a.   The value of property owned by the surviving spouse or domestic partner at the time of, or as a result of, the decedent's death to the extent that the property is derived from the decedent by means other than by testate or intestate succession without a full consideration in money or money's worth; and

   b.   The value of the property described in subsection a. hereof which has been transferred by the surviving spouse or domestic partner at any time during marriage or domestic partnership without a full consideration in money or money's worth to any person other than the decedent which would have been includable in the spouse's or domestic partner's augmented estate if the surviving spouse or domestic partner had predeceased the decedent.

   Income earned by included property prior to the decedent's death is not treated as property derived from the decedent.

   Amended 2005, c.331, s.11.

NJSA 3B:8-7. Property derived from decedent.

For the purposes of N.J.S. 3B:8-6, property derived from the decedent includes, but is not limited to, any beneficial interest of the surviving spouse or domestic partner in a trust created by the decedent during his lifetime, any property appointed to the spouse or domestic partner by the decedent's exercise of a general or special power of appointment also exercisable in favor of others than the spouse or domestic partner, any proceeds of insurance, including accidental death benefits on the life of the decedent attributable to premiums paid by him, any lump sum immediately payable and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant attributable to premiums paid by him, the commuted value of amounts payable after the decedent's death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent, the value of the share of the surviving spouse or domestic partner resulting from rights in community property acquired in any other state formerly owned with the decedent and the value of any rights of dower and curtesy. Premiums paid by the decedent's employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.

3B:8-8.† Valuation of property derived from decedent.

For the purposes of valuing property derived from the decedent as provided in N.J.S. 3B:8-6:

a. Property owned by the spouse or domestic partner at the decedent's death is valued as of the date of decedent's death; and

b. Property transferred by the spouse or domestic partner is valued at the time the transfer became irrevocable, or at the decedent's death, whichever occurs first.

3B:8-9.† Presumption as to property owned or previously transferred by spouse or domestic partner at decedent's death.

Property owned by the surviving spouse or domestic partner as of the decedent's death, or previously transferred by the surviving spouse or domestic partner, is presumed to have been derived from the decedent except to the extent that any party in interest establishes that it was derived from another source.

3B:8-10.† Waiving right to an elective share.

The right of election of a surviving spouse or domestic partner and the rights of the surviving spouse or domestic partner may be waived, wholly or partially, before or after marriage before, on or after May 28, 1980, by a written contract, agreement or waiver, signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of "all rights" (or equivalent language) in the property or estate of a present or prospective spouse or domestic partner or a complete property settlement entered into after or in anticipation of separation, divorce or termination of a domestic partnership is a waiver of all rights to an elective share by each spouse or domestic partner in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.

3B:8-11.† Who may exercise the right to take an elective share.

The right of election to take an elective share by a surviving spouse or domestic partner may be exercised only during his lifetime.† In the case of a surviving spouse or domestic partner for whom the court has appointed a guardian to manage his estate, the right of election may be exercised only by order of the court making the appointment after finding that the election is necessary to provide adequate support of the surviving spouse or domestic partner during his probable life expectancy.

Amended 2005, c.331, s.16.

†

3B:8-12 Filing complaint for elective share; extension of time.

The surviving spouse or domestic partner may elect to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedent's estate.† The court may, before the time for election has expired and upon good cause shown by the surviving spouse or domestic partner, extend the time for election upon notice to persons interested in the estate and to distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

   3B :8-13 .  Notice of hearing.

   The surviving spouse or domestic partner shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

   Amended 2005, c.331, s.18.

3B:8-14† Withdrawal of demand for an elective share.

.The surviving spouse or domestic partner may withdraw his demand for an elective share at any time before entry of a final judgment by the court.

†

3B:8-15.† Fixing amount of elective share;† payment of elective share

††† The court shall determine the amount of the elective share and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate in the manner as hereinafter set forth in this chapter. If† it appears that a fund or property included in the augmented estate has not† come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who† has possession thereof, whether as trustee or otherwise.† The proceeding may be† maintained against fewer than all persons against whom relief could be sought,† but no person is subject to contribution in any greater amount than he would† have been if relief had been secured against all persons subject to contribution.

3B:8-16.† Enforcing judgment

††† The judgment of the court made pursuant to N.J.S. 3B:8-15 may be enforced as† other judgments are enforced by law.

3B:8-17.† Value of surviving spouse's or domestic partner's interest in any life estate.

In an action for an elective share, the electing spouse's or domestic partner's total or proportional beneficial interest in any life estate in real or personal property or in any trust shall be valued at one-half of the total value of the property or trust or of the portion of the property or trust subject to the life estate.

3B:8-18.† Satisfaction of elective share.

The amount of the surviving spouse's or domestic partner's elective share shall be satisfied by applying:

a. The value of all property, estate or interest therein, owned by the surviving spouse or domestic partner in his own right at the time of the decedent's death from whatever source acquired, or succeeded to by the surviving spouse or domestic partner as a result of decedent's death notwithstanding that the property, estate or interest or part thereof, succeeded to by the surviving spouse or domestic partner as the result of decedent's death has been renounced by the surviving spouse or domestic partner;

b. The value of the property described in subsection b. of N.J.S. 3B:8-6, and

c. The remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse or domestic partner is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.

3B:8-19 Persons subject to contribution.

     Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse or domestic partner.† A person liable to contribution may choose to give up the property transferred to him or to pay its value as fixed in the manner provided in N.J.S. 3B:8-4.

Edison Library New NJ Estate Tax Law, Wills, & Estate Seminar October 2, 2018

    Edison Library

New NJ Estate Tax Law, Wills, & Estate Seminar 

October 2, 2018 at 7pm  Free community program

  Edison Library Main Branch 340 Plainfield Ave. Edison, NJ 08817  

WILLS & ESTATE ADMINISTRATION- PROTECT YOUR FAMILY AND MAKE PLANNING EASY

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ

               Author- Wills & Estate Administration 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 for 2018 & NJ Veterans Tax exemption of up to $3,000

2. The 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

7. Avoiding unnecessary expenses

       You do not need to be an Edison resident to attend.

    COMPLIMENTARY MATERIAL: Brochures on Wills, Probate and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.       

For info call 732-287-2298 x 228

To register go to http://www.edisonpubliclibrary.net/index-ek.shtml

Facebookhttps://www.facebook.com/events/247992682678647/

       

    FREE WILL SEMINARS AND SPEAKERS BUREAU for community groups

       The AARP Network Attorneys of the Edison/Metuchen/East Brunswick area had established a community Speakers Bureau to provide educational programs to AARP and senior clubs, Unions and Middlesex County companies. During the past year, volunteer attorneys of the Middlesex County Estate Planning Council have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups. These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar.For other organizations to schedule a Will Seminar, please callKenneth Vercammen Law Office at (732) 572-0500, email VercammenLaw@njlaws.com

       Kenneth Vercammen is a trial attorney in Edison, NJ. Ken is author of the ABA’s book “Wills and Estate Administration.” He is co-chair of the American Bar Association’s Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  Ken is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of 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. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He established the NJlaws website www.njlaws.comwhich includes many articles on Estate Planning, Probate and Wills. He is a member of the AARP and often lectures to groups on the importance of an up to date Will, Power of Attorney and Living Will.

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

 (Fax)   732-572-0030

www.njlaws.com 

A Will is presumed valid

A Will is presumed valid

In any attack upon the validity of a Will, it is generally presumed that "the testator was of sound mind and competent when he executed the Will." Gellert v. Livingston, 5 N.J. 65, 71 (1950). If there is a challenge to the Will, the Court will look to 

-who drafted the Will- example, was the Will drafted by a reputable attorney or a cheap homemade document [Will was prepared by Brian T. Keane Esq., a member of National Academy of Elder Law Attorneys, New Jersey Bar Association, The Florida Bar, Bergen County Bar Association.]

-did the person who typed the Will follow the instruction of the testator or the person who benefits from the Will [Mr. Loeffelman’s wife does not know Atty Keane]

who were the witnesses- example- employees of the attorney independent witnesses, friends of the testator, or friends of the persons who benefited [Witnesses were staff of Brian T. Keane Esq.]

The burden of establishing lack of testamentary capacity is on the one who contests the Will being offered for probate. This burden must be sustained by clear and convincing evidence. In re Hoover, 21 N.J. Super. 323, 325 (App. Div. 1952). Furthermore, it is incumbent upon the caveator to establish lack of capacity at the time the Will was executed. Gellert v. Livingston, 5 N.J. 65, 76 (1950). Indeed, he must show that the disputed will was *4 the product of the decedent's insanity. In re Strittmater, 140 N.J. Eq. 94, 95 (E. & A. 1947).

"The burden of proving undue influence is upon the person asserting it and it must be clearly established." Gellert v. Livingston, supra,5 N.J.at 71; In re Will of Liebl, 260 N.J. Super.519, 527 (App. Div. 1992).If a Will is tainted by "undue influence," it may be overturned. 

"Undue influence" has been defined as "mental, moral or physical" exertion which has destroyed the "free agency of a testator" by preventing the testator "from following the dictates of his own mind and will and accepting instead the domination and influence of another." Gellert,supra, 5 N.J.at 71; In re Blake’s Will, 21 N.J.50, 55-56 (1956); In re Dodge, 50 N.J.192 (1967); Haynes v. First National State Bank, 87 N.J.176 (1981); Pascale v. Pascale, 113 N.J.20 (1988). 

When such a contention is made the burden of proving undue influence lies upon the contestant unless the Will benefits one who stood in a confidential relationship to the testatrix and there are additional circumstances of a suspicious character present, which require explanation. Id.In such case the law raises a presumption of undue influence and the burden of proof is shifted to the proponent. Id.

         Two elements are necessary to create a presumption of undue influence. The first element necessary to raise a presumption of undue influence, a "confidential relationship" between the testator and a beneficiary, arises where trust is reposed by reason of the testator's weakness or dependence or where the parties occupied relations in which reliance is naturally inspired or in fact exists. The law governing undue influence is well established. While we generally presume that the testator is of sound mind and competent to execute a Will, Gellert v. Livingston, 5 N.J. 65, 71 (1950), even a Will which on its face appears to have been validly executed can be overturned upon a demonstration of undue influence. Haynes v. First Nat'l State Bank, 87 N.J. 163, 175-76 (1981). Similarly, an inter vivos transfer, as was this trust, is equally governed by the undue influence analysis. In re Dodge, 50 N.J. 192, 227-29 (1967); see Pascale v. Pascale,113 N.J. 20, 29-31 (1988).

           Undue influence is "defined as 'mental, moral or physical' exertion which has destroyed the 'free agency of a testator' by preventing the testator 'from following the dictates of his own mind and will and accepting instead the domination and influence of another.'" Haynes v. First Nat'l State Bank, supra, 87 N.J. at 176 (quoting In re Neuman, 133 N.J. Eq. 532, 534 (E. & A. 1943)). Where the Will benefits one who enjoyed a confidential relationship with the testator, and where there are suspicious circumstances surrounding the Will, the law presumes undue influence and the burden is upon the proponent of the Will to disprove the presumption.In re Rittenhouse's Will, 19 N.J. 376, 378-79 (1955).

             

       Under influence was explained in In Re Probate of the Last Will and Testament of Catelli361 N.J. Super.478 (App. Div. 2003), Thomas was named executor of his Aunts Estate. The Aunt had a stroke and limited ability to speak and see and was paralyzed. Thomas had a power of attorney which he used to gift himself and his wife $10,000 and later created a trust which he used to his benefit. 

The Court found the combination of the confidential relationship and the suspicious circumstances was more than sufficient to shift the burden to Thomas. The judge pointed to the fact that Thomas retained his own attorney to prepare the trust, where he knew his Aunt had an attorney, he prepared the documents without consultation to the testator, the documents were markedly different than what was provided for in the testator’s Will, the testator of debilitated and vulnerable, the effect of the documents immediately vested control of all assets of testator through and intervivos gift, and he dispensed substantial gifts through himself and his family. Thomas was unable to prove by a preponderance of the evidence that he did not assert undue influence on the testator.

     There is a legal presumption that "the testator was of sound mind and competent when he executed the Will." Haynes v. First Nat'l State Bank of N.J., 87 N.J.163, 175-76 (1981) (quoting Gellert v. Livingston, supra, 5 N.J.at 71); In re Hoover,supra, 21 N.J.Super.at 325. The gauge of testamentary capacity is "whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to the others, and the distribution that is made by the Will." Gellert v. Livingston, supra, 5 N.J.at 73. 

Testamentary capacity is to be tested at the date of the execution of the Will. Id.at76. Furthermore, "as a general principle, the law requires only a very low degree of mental capacity for one executing a Will." In re Rasnick, 77 N.J. Super.380, 394 (Cty. Ct. 1962); seeLoveridge v. Brown, 98 N.J.Eq.381, 387 (E. & A.1925). "The burden of establishing a lack of testamentary capacity is upon the one who challenges its existence and that burden must be sustained by clear and convincing evidence." In re Hoover, supra, 21 N.J. Super.at 325; accordIn re Rasnick, supra, 77 N.J. Super.at 395. A testator's misconception of the exact nature or value of his assets will not invalidate a Will where there is no evidence of incapacity. SeeIn re Livingston's Will, 37 A.770, 772 (Prerog. 1897); McCoon v. Allen, 45 N.J.Eq.708, 719 (Prerog. Ct. 1889); Collins v. Osborn, 34 N.J.Eq.511, 520 (Prerog. Ct. 1881). "Even an actual mistake by a testator as to the extent of his property does not show as a matter of law that he was wanting in testamentary capacity." 79 Am.Jur.2d Wills s. 72 at 331 (1975). Rather, a testator need only know that his property is worth some value and have a general estimate as to the nature of his estate. Ibid. "It is not ignorance of the kind or amount of property owned by the testatrix which invalidates [a] Will, but ignorance resulting from a mental incapacity to comprehend the kind and amount of such property." In re Livingston's Will, supra.

                                                      Respectfully submitted,

                                                      KENNETH  VERCAMMEN

  Copyright 2018 Vercammen Law

Not criminal harassment to publish rude flyers State v. Burkert

Not criminal harassment to publish rude flyers

State v. Burkert (A-6-16)

This case tests the limits to which a broadly worded harassment statute, N.J.S.A. 2C: 33-4(c), can criminalize speech. 

William Burkert and Gerald Halton were corrections officers, who held positions in different unions representing distinct classes of officers. Their relationship became particularly strained after Burkert read online comments attributed to Halton’s wife that Burkert felt insulted him and his family. Angered by the insulting online comments, Burkert retaliated. Burkert downloaded the Haltons’ wedding photograph. He then copied the photograph and made two flyers, writing lewd dialogue in speech bubbles over the faces of the bride and groom. 

Burkert admitted that he had prepared the flyers but denied circulating them. Burkert explained that he expressed himself through the flyers rather than “get physical with the guy.”

The municipal court entered a guilty verdict against Burkert for harassing Halton on January 8 and 11 in violation of N.J.S.A. 2C: 33-4(c). The court found that Burkert made and circulated the flyers in the garage and locker room, that the bubble dialogue inscribed on the Haltons’ wedding photograph was “lewd and obnoxious,” and that such language would “seriously annoy any person, in this case Mr. Halton.” In a de novo trial before the Law Division, the court found Burkert guilty beyond a reasonable doubt of committing acts of harassment. 

HELD: To ensure that N.J.S.A. 2C:33-4(c) does not exceed its constitutional reach in cases involving the prosecution of pure speech, repeated acts to “alarm” and “seriously annoy” must be read as encompassing only repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interferes with that person’s reasonable expectation of privacy. 

1. N.J.S.A. 2C:33-4 distinguishes between “communications” and “language” that violate the statute in subsection (a), and “conduct” and “acts” that do so in subsection (c). Although a “course of alarming conduct” or “repeatedly committed acts” can occur through communications and language alone, it is far from clear that the Legislature had in mind offensive speech as the object of N.J.S.A. 2C:33-4(c). That the primary thrust of N.J.S.A. 2C:33-4(c) is not to interdict speech, but rather conduct, is reinforced in State v. Hoffman, 149 N.J. 564 (1997). 

2. Criminal laws touching on speech must give fair notice of where the line is set between what is permissible and proscribed and must be drawn with appropriate definiteness. A court can invalidate a statute that is substantially overbroad on its face if the statute reaches a substantial amount of constitutionally protected conduct. Such a drastic remedy, however, is not the only—and not even the preferred—approach. Provided that a statute is reasonably susceptible to an interpretation that will render it constitutional, courts must construe the statute to conform to the Constitution. 

3. The vaguely and broadly worded standard in N.J.S.A. 2C:33-4(c) does not put a reasonable person on sufficient notice of the kinds of speech that the statute proscribes. The statute’s vagueness also gives prosecuting authorities undue discretion to bring charges related to permissive expressive activities. That, in turn, means that the statute—if not more narrowly defined—has the capacity to chill permissible speech. Under N.J.S.A. 2C:33-4(c), a person who, with the purpose to seriously annoy another, does seriously annoy another is guilty of harassment. Speech, however, cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt. The First Amendment protects offensive discourse, hateful ideas, and crude language because freedom of expression needs breathing room and in the long run leads to a more enlightened society. Outside of the category of obscenity, courts should not play the role of censor by engaging in a weighing of an expression’s value or relative social costs and benefits. Speech cannot be criminalized merely because others see no value in it. Nonetheless, neither the First Amendment nor Article I, Paragraph 6 of our State Constitution prohibits the State from criminalizing certain limited categories of speech, such as speech that is integral to criminal conduct, speech that physically threatens or terrorizes another, or speech that is intended to incite imminent unlawful conduct. The First Amendment also does not bar states from enacting laws that punish expressive activity when substantial privacy interests are being invaded in an essentially intolerable manner.

4. N.J.S.A. 2C:33-4 provides: “[A] person commits a petty disorderly persons offense if, with purpose to harass another, he: . . . (c) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.” In cases based on pure expressive activity, the amorphous terms “alarming conduct” and “acts with purpose to alarm or seriously annoy” must be defined in more concrete terms consonant with the dictates of the free-speech clauses of our Federal and State Constitutions. Narrowly reading the terms alarm and annoy will save the statute from constitutional infirmity. Therefore, for constitutional reasons, the Court will construe the terms “any other course of alarming conduct” and “acts with purpose to alarm or seriously annoy” as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy. That standard applies only in those cases where the alleged harassing conduct is based on pure expressive activity. 

5. The prosecution in this case targeted purely expressive activity and therefore the Court applies the heightened standard of subsection (c) set forth above. Neither the municipal court nor Law Division judge who sat in this case had the benefit of the standard developed in this opinion. They applied the statute as written. Although in other circumstances a remand might be appropriate, the Court sees no point here because even the most indulgent view of the record favoring the State would not support a harassment conviction under N.J.S.A. 2C: 33-4(c).