Rooming House Act did not apply to Assisted Living Facility here ESTATE OF JAMES BURNS, by and through BRIAN BURNS, EXECUTOR, v CARE ONE AT STANWICK, LL

 Rooming House Act did not apply to Assisted Living Facility here

 ESTATE OF JAMES BURNS, by and through BRIAN BURNS, EXECUTOR,

v CARE ONE AT STANWICK, LLC d/b/a CARE ONE HARMONY VILLAGE AT MOORESTOWN and CARE ONE, LLC,

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1344-20

Defendants-Appellants. ______________________________

Argued April 27, 2021 – Decided June 15, 2021

Before Judges Fisher, Gilson and Gummer.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2044-17.

APPROVED FOR PUBLICATION June 15, 2021 APPELLATE DIVISION

The opinion of the court was delivered by FISHER, P.J.A.D.

In this interlocutory appeal, we consider whether inhabitants of an assisted living residence may assert a private cause of action for the facility's alleged breach of their statutory bill of rights. After closely analyzing the statutes applicable to assisted living residences as well as other legislative enactments for similar facilities, we conclude the Legislature did not intend to create a private cause of action despite having done so in similar circumstances; we also decline the invitation to incorporate such a private cause of action into the common law.

I
James Burns was eighty-eight years old when admitted to Care One

Harmony Village at Moorestown on December 29, 2014. He had a history of Lewy body dementia, a disorder that has mental and physical effects. Burns was

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transferred to another facility for long-term care on September 6, 2015, and died eleven days later. His estate commenced this wrongful death action on September 13, 2017, alleging Burns had fallen several times and developed pressure ulcers and infections during his stay at Care One,1 and that he died because of the substandard care Care One provided.

In the complaint, plaintiff asserts claims sounding in negligence and intentional torts; it does not allege any statutory causes of action. When discovery ended in early January 2020, Care One moved for summary judgment, seeking a determination that plaintiff could not assert a claim based on Care One's breach of any state or federal statutes or regulations. During oral argument, plaintiff's attorney confirmed that no statutory or regulatory violation had been or could be asserted, that plaintiff had only a medical negligence claim for the alleged treatment Burns received at Care One, and that he anticipated his experts may refer to a breach of statutes or regulations as evidence of the applicable standard of care. Care One's motion was denied.

In April 2020, plaintiff moved for partial summary judgment, seeking an order declaring that Care One is subject to the rights granted those who reside in a facility falling within the parameters of the Rooming and Boarding House

1 For simplicity's sake, we refer to all defendants as Care One. 3

A-1344-20

Act, N.J.S.A. 55:13B-1 to -21. Plaintiff also sought a ruling permitting the jury to consider whether decedent's rights under this Act – the opportunity to "achieve the highest level of independence, autonomy, and interaction with the community," N.J.S.A. 55:13B-19(j), and "a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident," N.J.S.A. 55:13B-19(l) – were violated by Care One. The Rooming and Boarding House Act expressly authorizes a private cause of action for enforcement of these and other rights and allows for an award of attorneys' fees to a prevailing plaintiff. N.J.S.A. 55:13B-20.

The trial judge granted plaintiff's motion, subject to plaintiff proving at trial that Care One was a facility that, by legislation, allowed plaintiff a private cause of action. The judge concluded that the Rooming and Boarding House Act, as well as the Dementia Care Home Act, N.J.S.A. 26:2H-148 to -157, expressed the Legislature's determination that persons suffering from dementia – like decedent – are vulnerable and in need of protections enhanced by the existence of a private cause of action for their breach.

In seeking leave to appeal the judge's grant of plaintiff's motion for partial judgment, Care One argues that it operates an assisted living residence and that although the Legislature enacted a bill of rights for assisted living residents,

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N.J.S.A. 26:2H-128(b), the Legislature did not expressly incorporate a right to pursue a private cause of action. We granted leave to appeal.

II
The path through numerous statutes and regulations leading to the

conclusion Care One would have us reach – that a resident or the personal representative of a resident has no private cause of action for a breach of an assisted living resident's bill of rights – is not entirely clear. In seeking illumination, we look to the legislation concerning residential health care facilities, rooming and boarding houses, dementia care homes, and nursing homes.

As early as 1953, the Legislature granted the Department of Health or the Department of Community Affairs, "as appropriate," N.J.S.A. 30:11A-1, licensing and regulatory authority over the State's "residential health care facilities," N.J.S.A. 30:11A-3. These facilities were defined, in part, by the fact that their residents were "not in need of skilled nursing care" and were not to be given "skilled nursing care." N.J.S.A. 30:11A-1. The Rooming and Boarding House Act was enacted in 1979 to give the Department of Community Affairs authority over otherwise unregulated rooming houses and boarding houses. The Rooming and Boarding House Act incorporated a bill of rights for "residents of

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rooming houses, boarding houses and residential health care facilities," N.J.S.A. 55:13B-17, delineated in N.J.S.A. 55:13B-19.2 This legislation also affirmatively declared that a resident "shall have a cause of action against any person committing" a violation of the bill of rights, that

may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for their violation. Any plaintiff who prevails in any such action shall be entitled to recover reasonable attorney's fees and costs of the action.

[N.J.S.A. 55:13B-21.]
In 1976, the Legislature enacted the Nursing Home Responsibilities and

Residents' Rights Act, N.J.S.A. 30:13-1 to -17, by virtue of having found that "the well-being of nursing home residents" in this State required "a delineation of the responsibilities of nursing homes and a declaration of a bill of rights for such residents." N.J.S.A. 30:13-1. This Act established the many rights of nursing home residents, N.J.S.A. 30:13-5, and expressly declared that residents' "shall have a cause of action against any person" violating their rights that would include the right to "recover actual and punitive damages" and "reasonable

2 N.J.S.A. 55:13B-19 sets forth a bill of rights possessed by "[e]very resident of a boarding facility." In N.J.S.A. 55:13B-18, the Legislature declared that "boarding facility" means "rooming house, boarding house or residential health care facility."

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attorney's fees and costs" incurred by a prevailing plaintiff in such an action, N.J.S.A. 30:13-8; see also N.J.S.A. 30:13-4.2.

In 1997, the Legislature acted to ensure the protection of the residents of these three types of facilities – rooming houses, boarding houses, and residential health facilities – who were afflicted by Alzheimer's disease, dementia or other related disorders by including definitions of those conditions, see N.J.S.A. 55:13B-3(k) and (l), in the existing legislation and by authorizing the Commissioner of the Department of Community Affairs to establish standards. N.J.S.A. 55:13B-6(n).

Nearly twenty years later, in 2016, the Legislature enacted the Dementia Care Home Act, N.J.S.A. 26:2H-148 to -157. In its definitional provision, this Act defined the residents of "a dementia care home" as adults "with Alzheimer's disease and related disorders or other forms of dementia," who also: are "ambulant with or without assistive devices"; have been "certified by a licensed physician . . . not in need of skilled nursing care"; and "except in the case of a person 65 years of age or over, [are] in need of dietary services, supervision of self-administration of medications, supervision of and assistance in activities of daily living, or assistance in obtaining health care services." N.J.S.A. 26:2H- 150(b). This Act further establishes that a resident of a dementia care home

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"shall not be given skilled nursing care while a resident" except in cases of "emergenciesorduringtemporaryillnessforaperiodofoneweekorless." Ibid. The Dementia Care Home Act also incorporated a bill of rights for the residents of those homes, N.J.S.A. 26:2H-154(a), and expressly allows for a

private cause of action on a breach of those rights for both "actual and punitive damages" as well as the right of a prevailing plaintiff to recover reasonable attorney's fees. N.J.S.A. 26:2H-154(c).

In 2002, prior to enactment of the Dementia Care Home Act, the Legislature recognized the existence of "assisted living residence[s]," defining them as facilities that "provide apartment-style housing and congregate dining." N.J.S.A. 26:2H-7.15. The Legislature defined "assisted living" as "a coordinated array of supportive personal and health services, available 24 hours per day, which promote resident self-direction and participation in decisions that emphasize independence, individuality, privacy, dignity, and homelike surroundings to residents who have been assessed to need these services, including residents who require formal long-term care." Ibid. The Department of Health, which regulates assisted living residences, has determined that they must be capable of providing: "assistance with personal care, nursing, pharmacy, dining, activities, recreational, and social work services to meet the

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individual needs of each resident." N.J.A.C. 8:36-8.2(b). Regulations allow such facilities to establish programs to meet the needs of residents with Alzheimer's disease and other forms of dementia, providing individualized care in light of the cognitive and functional abilities of residents admitted to the program. N.J.A.C. 8:36-19.

In 2011, as it had with these other types of facilities, the Legislature enacted a bill of rights for assisted living residents. See N.J.S.A. 26:2H-128(b). Unlike all its enactments concerning other facilities, the Legislature neither expressly authorized nor expressly precluded an assisted living resident's right to pursue a private cause of action for the violation of the rights enumerated in N.J.S.A. 26:2H-128(b).

III
In considering the parties' arguments – as well as those asserted by amici`

– we acknowledge that the answer to the issues posed is not readily apparent. Our review of various similar legislation set forth above reveals that the Legislature, over the course of many decades, repeatedly extended its reach, encompassed various types of facilities within its protection, and refined its regulation of residences for the elderly and infirm. To summarize, the Legislature:

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• in 1953 began regulating "residential health care facilities";

• in 1976 enacted the Nursing Home Responsibilities and Residents' Rights Act;

• in 1979 expanded its regulation of "residential health care facilities" to include rooming and boarding houses;

• in 1997, folded patients afflicted with Alzheimer's disease, dementia, and other related disorders into the protections provided for residents of residential health care facilities, rooming houses, and boarding houses; and

• in 2016, began regulating what it described as dementia care homes.

  In all these instances, the Legislature declared bills of rights for residents and expressly authorized a resident's right to pursue a private cause of action for violations of those bills of rights. But when it recognized assisted living residences in 2002 and enacted a bill of rights applicable to those residences in 2011, the Legislature did not expressly authorize private causes of action for violations of those rights.

  By the same token, the Legislature did not prohibit private causes of actions for assisted living residents. It just didn't say anything about it. There are two ways a court may proceed in this circumstance. A court might either (a) adopt into the common law a private cause of action based on the legislative

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policy of protecting the elderly and infirm or (b) ascertain whether, through application of statutory-interpretation guidelines, the Legislature intended to create a private cause of action despite its silence.

A
As we have observed, the Legislature was silent about the existence of a

private cause of action for assisted living residents but it was not entirely silent about its desire to create rights and protect those residents; far from it. The 2011 bill of rights for assisted living residents created forty-two rights that focus on the retention of their rights: to "independence" and "individuality," N.J.S.A. 26:2H-128(b)(3); to "be treated with respect, courtesy, consideration, and dignity," N.J.S.A. 26:2H-128(b)(4); to "make choices with respect to services and lifestyle," N.J.S.A. 26:2H-128(b)(5); to "personalized services and care," N.J.S.A. 26:2H-128(b)(1); to "a level of care and services that address the resident's changing physical and psychosocial status," N.J.S.A. 26:2H- 128(b)(2); and to "retain and exercise all constitutional, civil, and legal rights to which the resident is entitled by law," N.J.S.A. 26:2H-128(b)(39).

In so many words, plaintiff and amicus New Jersey Association for Justice argue that we should be responsive to the thrust of these statutes and the Legislature's establishment of these rights in determining whether or how the

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common law should provide remedies to vindicate these interests. This process is nothing new. Indeed, it presents an age-old question, as revealed by what Justice Holmes had to say in similar circumstances while riding the circuit more than a century ago:

The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.

[Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908).]

Justice Cardozo later restated this concept, asserting it would be "a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied"; "[t]here are times," Justice Cardozo observed, "when uncertain words are to be wrought into consistency and unity with a legislative policy which is itself a source of law, a new generative impulse transmitted to the legal system." Van Beeck v. Sabine Towing Co., 300 U.S. 342, 350-51 (1937).

Our approach toward the common law's recognition of new causes of action in the face of legislative recognition of an important policy but silence in

 

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the recognition of remedies is not dissimilar. See Jarrell v. Kaul, 223 N.J. 294, 307-08 (2015); In re Resolution of State Comm'n of Investigation, 108 N.J. 35, 40-41 (1987); Renz v. Penn Central Corp., 87 N.J. 437, 456 (1981); Haynes v. First Nat'l State Bank, 87 N.J. 163, 188-89 (1981); Lally v. Copygraphics, 85 N.J. 668, 670-71 (1981), aff'g, 173 N.J. Super. 162 (App. Div. 1980); Winslow v. Corporate Express, Inc., 364 N.J. Super. 128, 137 (App. Div. 2003).

And so, the Legislature's silence about the right of assisted living residents to bring an action for enforcement of the statutory bill of rights does not, as Care One argues, end the inquiry. It may, in fact, require no great leap – considering the Legislature's recognition of a public interest in the care and protection of the elderly, particularly those lacking the ability to voice their complaints – to recognize an implied private cause of action for a breach of the assisted living resident's bill of rights.

In support of such a theory, it would be sensible to view the statutory bill of rights as establishing, as it states, "rights," not just, as Care One would apparently have it, mere "suggestions" that a facility would be permitted to either comply with or not without fear of a resident's pursuit of a civil remedy.3

3 We are mindful that a facility's failure to abide by the bill of rights may affect its licensing. See, e.g., Kleine v. Emeritus at Emerson, 445 N.J. Super. 545, 548 n.5 (App. Div. 2016). Additionally, we need not – and therefore do not –

         

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The very use of the phrase "bill of rights" – an allusion to the first ten amendments to our federal constitution that limit or prohibit government intrusion into individual liberties – conjures up for the American mind more than mere suggestions. Considering this broad creation of rights – both great and small – it would not be inconsistent with the approach of the common law that a private cause of action be recognized for a violation of those rights.

B
Looking at the issue as a matter of statutory interpretation, we are

counseled to read statutes sensibly in light of their surroundings and other similar or even unrelated legislation. See, e.g., Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 175-76 (2006). The former highest court of this State once said, "[a] statute must be construed with reference to the entire system of which it forms a part[;] . . . statutes upon cognate subjects may be considered in arriving at the legislative intention, though not strictly in pari materia." Modern Indus. Bank v. Taub, 134 N.J.L. 260, 263 (E. & A. 1946). See also 2B Norman J. Singer, Sutherland Statutory Construction, § 53:3 (7th ed. 2012) (recognizing that "the interpretation of a doubtful statute may be influenced by the language

determine whether the Department of Health may sue for the enforcement of this bill of rights.

     

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of other statutes which are not specifically related, but which apply to similar persons, things, or relationships").

The Legislature has repeatedly demonstrated its ability to create private causes of action and, in this same general context, has chosen to expressly declare what types of facilities that house the elderly and infirm may be the subject of a private cause of action for breaching applicable bills of rights and appended regulations. It would not be outside our general approach toward statutory interpretation to view the Legislature's silence about private causes of action against assisted living residences as an ambiguity and to reach a conclusion that the failure to authorize a private cause of action might have been an oversight. In this way, a private cause of action could be found by a logical implication of what the legislation meant, see 2B Sutherland Statutory Construction, § 55:3 (recognizing that "[i]f a statute creates a right but does not indicate expressly the remedy, one is usually implied, and courts may resort to the common law"), there being no other evidence that the Legislature intended to treat assisted living residences in a manner different from how it had treated nursing homes, dementia care homes, residential health care facilities, rooming houses, and boarding houses.

 

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C
We are persuaded against either concluding the common law should

recognize a private cause of action or that the Legislature intended to include a private cause of action in its enactments concerning assisted living residences. In proceeding in either direction we cannot ignore the legislation concerning other similar facilities that we have already mentioned. As to each of these types of facilities, the Legislature expressly declared both a bill of rights and a private cause of action. It was only when it considered assisted living residences that the Legislature enacted a bill of rights – nine years later – and, in doing so, said nothing about whether it intended to create a private cause of action. Moreover, having departed from the template previously employed in regulating other facilities, the Legislature later felt the need to expressly declare a private cause of action when regulating dementia homes. We find its one departure from the norm to be telling.

When considering the meaning of legislation, we assume the Legislature is "thoroughly conversant with its own legislation and the judicial construction of its statutes." Brewer v. Porch, 53 N.J. 167, 174 (1969); see also Lozano v. Frank DeLuca Constr., 178 N.J. 513, 532 (2004). As the examples we have provided reveal, the Legislature certainly knows how to authorize private causes

   

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of action when it desires to do so. We, thus, find meaning when the Legislature acts differently from what it normally does in similar settings. See State v. Harper, 229 N.J. 228, 238 (2017). Like the dog that didn't bark in the night, we are satisfied that by not expressly declaring a private cause of action for assisted living residents, the Legislature consciously chose not to create one.

This interpretation counsels against the adoption into the common law of a private cause of action for a breach of N.J.S.A. 26:2H-128. Even though there is no doubt the Legislature has recognized and acted on a strong public interest in protecting the elderly and infirm, and even though that legislative recognition infuses the common law with "a new generative impulse," Van Beeck, 300 U.S. at 350-51, we should nevertheless tread lightly before pushing the common law to the recognition of such a new cause of action. In this regard, we must weigh what we have found to be the Legislature's presumably conscious decision not to recognize this new cause of action. That circumstance counsels in favor of a more modest approach.

Analytically, our courts will recognize an implied private cause of action emanating from legislation by employing a three-part test that asks:

  

whether the plaintiff is "one of the class for whose especial benefit the statute was enacted"; whether there is any evidence that the Legislature intended to create a private cause of action under the statute; and whether

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implication of a private cause of action in this case would be "consistent with the underlying purposes of the legislative scheme."

[State Comm'n of Investigation, 108 N.J. at 41 (quoting Cort v. Ash, 422 U.S. 66, 78 (1975)); see also Jarrell, 223 N.J. at 307.]

In employing this test here, there is no doubt that decedent falls within the class of individuals the bill of rights was intended to protect. It also seems likely that the implication of a cause of action would be consistent with the reason the bill of rights was enacted. It is the second part of the test, however, that calls into doubt the soundness of our recognizing a private cause of action.

The Legislature is, as we have already said, presumed to be cognizant of its existing related laws designed to protect the rights of the elderly and infirm. But, unlike other circumstances where private causes of action have been recognized despite legislative silence, the Legislature would be familiar with the fact that someone like decedent would be entitled to press a negligence claim against an assisted living residence which has failed to provide proper care. Additionally, many of the rights delineated in the statutory bill of rights already present judicially cognizable causes of action without the creation of a private cause of action for all those enumerated. See, e.g., N.J.S.A. 26:2H-128(b)(16) (the right to "be free from physical and mental abuse and neglect").

    

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To be sure, those individuals who are benefited by the statutory bill of rights likely lack the ability to voice their concerns about their treatment and are dependent on others for the very reason they reside in these types of facilities. But we simply cannot ignore that the Legislature was appreciative of that fact and chose not to expressly recognize a private cause of action despite its contrary approach in enacting other similar legislation. In short, we find absent the second part of the applicable three-part test, and in the final analysis, we reject the argument that the common law should recognize a private cause of action in this instance.4

4 It may be that the interest in our recognition of a private cause of action is generated by the statutory authorization – accompanied in the other legislation we have referred to – of fee-shifting in favor of prevailing plaintiffs. Even if we were to recognize a private cause of action here, we could not take the further step of declaring its incorporation of a prevailing plaintiff's right to an award of fees. Our jurisprudence has long remained committed to the American rule that litigants bear their own legal fees, Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 404 (2009), and the Supreme Court has recognized a "strong public policy against shifting counsel fees," Innes v. Marzano-Lesnevich, 224 N.J. 584, 592 (2016). A party may be compelled to pay the legal fees of another only: in those types of cases described by rule, R. 4:42-9(a); when the parties contractually agree; in other cases falling with recognized and "carefully limited" exceptions from the American rule, In re Estate of Vayda, 184 N.J. 115, 121 (2005); and when authorized by statute, R. 4:42-9(a)(8). While the Supreme Court may expand the scope of these American rule exceptions – through either its rule-making authority or by decisional law that expands the additional fonts for such an award recognized in cases like Saffer v. Willoughby, 143 N.J. 256, 271 (1996) – other courts cannot.

   

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The common law may spread to places where the Legislature has not ventured but not without great and careful consideration for the wisdom of the extension, lest before long courts and legislative bodies find themselves on divergent and conflicting paths. If today's judgment is overly cautious or mistaken about the legislative intent, the Legislature is in the best position to correct or alter our course. See Plastic Surgery Ctr., P.A. v. Malouf Chevrolet- Cadillac, Inc., 241 N.J. 112, 113 (2020). Until then, we conclude there is no private cause of action for the breach of the assisted living facility's bill of rights contained in N.J.S.A. 26:2H-128(b).

IV
The order states that the grant of Care One's motion for partial summary

judgment is "subject to proof at trial." The meaning of this is revealed by the judge's oral decision in which, in sum or substance, he distinguished between assisted living residents who suffer from Alzheimer's, dementia or some other similar malady, and those who do not. Those in the former class, in the judge's view, possess a private cause of action; the latter does not. We disagree. There is nothing in the legislation to reveal an intent to create separate classes of assisted living residents.

 

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The judge's oral decision also suggests that if plaintiff can prove Care One was operating something other than an assisted living residence, a jury could consider and ultimately find a violation of the bill of rights applicable to that other type of facility. We reject this position. Care One's facility is governed by the license issued to it as an assisted living residence. Whether, during decedent's stay there, Care One was operating something other than that should be determined only by the Department of Health, which possesses special expertise in these matters, not by either the trial judge or a jury. See Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 269 n.1 (1978). In a circumstance like this, a court must determine whether the agency has exclusive or primary jurisdiction. Muise v. GPU, Inc., 322 N.J. Super. 140, 158-59 (App. Div. 2000). When the claim itself falls within the agency's exclusive jurisdiction, it is subject to dismissal because of the failure to exhaust administrative remedies. But, when a court has jurisdiction over the claim and a pivotal aspect presents a question falling within an agency's expertise, a court will retain jurisdiction, stay the action, and allow for the agency's determination of that aspect. See generally Curzi v. Raub, 415 N.J. Super. 1, 20-21 (App. Div. 2010).

In this case we need not decide whether it is exclusive or primary jurisdiction that the Department of Health would possess over a claim that Care

    

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One acted other than as licensed because the claim should not proceed in either event. If the former, dismissal would follow. And, although a finding of primary jurisdiction would not require dismissal, we are satisfied it is too late here to allow for a stay and a time-consuming detour into an administrative proceeding.

Our reason for reaching this conclusion dovetails with Care One's last argument in which it argued we should bar plaintiff's bill-of-rights claim because it was not asserted until an extremely late point in the litigation, indeed, well after plaintiff said in response to an earlier summary judgment motion that no such claim had been asserted. Although we reject Care One's argument that the claim is barred by the applicable statute of limitations,5 plaintiff's delay in its pursuit of such a claim justifies our conclusion that this nearly four-year-old litigation should not be further delayed.

***

5 Care One's statute-of-limitations argument is without merit because the original complaint was timely filed and a bill-of-rights claim would relate back to the time of the original filing because it arises from the same transactions or occurrences that gave rise to the allegations in the original complaint. See R. 4:9-3; Harr v. Allstate Ins. Co., 54 N.J. 287, 299-300 (1969).

 

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The trial court's December 2, 2020 order is reversed. We remand for further proceedings consistent with this opinion but do not retain jurisdiction.

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Technical erroneous statute charged not defense to refusal here STATE v. SHARON COURSEY

Technical erroneous statute charged not defense to refusal here STATE 

v.
SHARON COURSEY,

Defendant-Appellant. ________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-5496-18T4

Submitted December 8, 2020 – Decided December 30, 2020 Before Judges Yannotti and Natali.

On appeal from the Superior Court of New Jersey, Cape May County, Municipal Appeal No. 05-05-18.

 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

PER CURIAM
Following a trial de novo in the Law Division, defendant Sharon Coursey

was convicted of refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and

resisting arrest, N.J.S.A. 2C:29-2(a)(1). She appeals from both her refusal and resisting arrest convictions, raising the following points for our consideration1:

POINT I

THE LAW DIVISION'S FINDING OF GUILTY WITH RESPECT TO SUMMONS ACSO-38980, REFUSAL TO SUBMIT TO A BREATH TEST, WAS IN ERROR AS THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE CONVICTION.

POINT II

[SERGEANT ADE LACKED PROBABLE CAUSE TO BELIEVE THAT . . . DEFENDANT . . . OPERATED A MOTOR VEHICLE WITHIN THE CONTEXT OF THE DRIVING WHILE INTOXICATED STATUTE, N.J.S.A. 39:4-50.]

POINT III

THE DEFENDANT['S] . . . CONVICTION FOR REFUSAL TO SUBMIT TO A BREATH TEST MUST BE VACATED OR OTHERWISE REVERSED BECAUSE THERE IS INSUFFICIENT EVIDENCE THAT SHE KNOWINGLY AND VOLUNTARILY REFUSED TO SUBMIT TO THE CHEMICAL BREATH TEST.

POINT IV

THE LAW DIVISION, IN ITS LETTER OPINION, FAILED TO ADDRESS DEFENDANT['S] . . . ARGUMENT THA T THE CHARGE UNDER SUMMONS ACSO-38980 CONTAINED THE

1 For ease of reference, we have renumbered defendant's point headings. 2

A-5496-18T4

INCORRECT REFUSAL STATUTE; AND, THE LAW DIVISION ERRED BY NOT REVERSING THE OCEAN CITY MUNICIPAL COURT'S DENIAL OF THE STATE'S MOTION TO AMEND THE CHARGE AND REMANDING THE MATTER BACK TO THE OCEAN CITY MUNICIPAL COURT FOR FURTHER PROCEEDINGS.

POINT V

SERGEANT ADE LACKED PROBABLE CAUSE TO ARREST THE DEFENDANT . . . FOR THE OFFENSE OF DRIVING WHILE INTOXICATED, AND THEREFORE, THE DEFENDANT . . . DID NOT RESIST A LAWFUL ARREST AND HER CONVICTION FOR SAME MUST BE VACATED OR OTHERWISE REVERSED.

I.
We rely on the findings of the municipal court judge who conducted the

bench trial and the superior court judge who heard the trial de novo on appeal to the Law Division. We summarize the relevant facts elicited at trial to provide context for our opinion.

On September 5, 2013, the Atlantic County Sheriff's Office (ACSO) responded to a disturbance at the Atlantic County Civil Court Building where defendant was appearing for a custody hearing regarding her two children. When the police arrived, defendant was seen outside a courtroom, "speaking in

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a very loud tone" and "yelling obscenities." Defendant eventually returned to the courtroom, followed by Sergeant William Ade of the ACSO.

Once inside the courtroom, Sergeant Ade observed defendant acting in a manner that led him to conclude that she was intoxicated. He stated that defendant was "swaying in her chair," smelled of alcohol, and her eyes were red and glassy.

Concerned with her behavior, the judge ordered defendant to take a drug and alcohol urinalysis test. Sergeant Ade stated that as he and other officers escorted defendant to the restroom to complete the test, she was "loud and boisterous" and was "using profanity." He further observed defendant "swaying and staggering" as she walked.

At the conclusion of the hearing, Sergeant Ade assisted defendant to the courthouse exit and noticed that she continued to stagger when walking. Sergeant Ade observed defendant remove keys from her purse, and based on his concern that defendant was going to operate a vehicle while intoxicated, he radioed two other officers and asked them to position their vehicle near the parking lot so that they could effectuate a motor vehicle stop if defendant attempted to operate her car. Sergeant Ade observed defendant enter her vehicle and was notified by another officer that she had started it.

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Sergeant Ade approached defendant's vehicle with two other officers, heard the engine running, and saw defendant in the driver's seat with her seatbelt on. Sergeant Ade also observed defendant's head "nodding back and forth" and her "eyelids . . . drooping." When defendant lowered her car window, Sergeant Ade immediately detected the odor of alcohol. Sergeant Ade informed defendant that he believed she was under the influence of alcohol and directed her to exit the vehicle so that he could administer a field sobriety test.

Defendant refused to comply with multiple requests to exit the vehicle and was advised that she was under arrest. As officers attempted to remove her from the car, she began to scream and clutch various parts of the vehicle's interior. Once defendant was removed from the car, she was driven to the Absecon Police Department for the administration of an Alcotest. During the drive, Sergeant Ade testified that he continued to "smell the . . . strong odor of an alcoholic beverage" and noted that defendant was making "incoherent statements."

At the station, defendant was placed in a separate room to "initiate the . . . twenty-minute observation period prior to administering the [A]lcotest." During this period, Sergeant Ade read defendant her Miranda2 rights which she subsequently waived. Sergeant Ade also informed defendant in accordance with

 

2 Miranda v. Arizona, 384 U.S. 436 (1966). 5

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the New Jersey Attorney General's Standardized Statement for Motor Vehicle Operators, that if she did not provide a breath sample for the Alcotest she would be charged with refusal.

Sergeant Ade testified that defendant never gave an "affirmative answer that she was going to submit to the breath test." He noted, however, that as he read the statement he made "sure that [defendant] was still looking at [him] and that she followed along with what [he] was saying."

Defendant explained her actions at the police station by testifying that she had previously been diagnosed with "paranoid schizophrenia" and was currently suffering from post-traumatic distress order. Defendant also testified that she had requested to speak with an auxiliary aid provided to her under the Americans with Disabilities Act.

Defendant was charged under municipal summonses for driving while intoxicated, N.J.S.A. 39:4-50; possession of open container of alcohol, N.J.S.A. 39:4-51b; failure to exhibit registration, N.J.S.A. 39:3-29; failure to exhibit an insurance card, N.J.S.A. 39:3-29; and resisting arrest, N.J.S.A. 2C:29-2(a)(1). Further, rather than being charged with refusal to submit to a chemical breath

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test pursuant to N.J.S.A 39:4-50.4a, defendant was improperly charged under N.J.S.A. 39:4-50.2.3

Defendant entered a conditional guilty plea to refusal to submit to a chemical test, N.J.S.A. 39:4-50.4a, after the municipal court judge amended the original refusal charge to reflect the appropriate statute. The State, thereafter, dismissed the remaining charges. On appeal to the Law Division, however, defendant's guilty plea was vacated on the grounds that that there was an inadequate factual basis to sustain the N.J.S.A. 39:4-50.4a charge. The court also reinstated the open container and resisting arrest charges.

The matter was reassigned to the Ocean City Municipal Court. Defendant filed a motion to dismiss the refusal charge for "lack of probable cause with

3 N.J.S.A. 39:4-50.2(a) provides that drivers who operate a "motor vehicle on any public road, street or highway or quasi-public areas in the State shall be deemed to have given . . . consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in [the operator's] blood." N.J.S.A. 39:4-50.4a includes a delineated list of penalties for an operator who "refuses to submit, upon request, to a test provided for in [N.J.S.A. 39:4-50.2]." N.J.S.A. 39:4-50.4a further provides that "[t]he municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue."

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regard to operation" of her vehicle. The State opposed the motion and moved to "amend [the refusal summons] to reflect the appropriate refusal statute, i.e., N.J.S.A. 39:4-50.4a." During oral argument, defendant "agreed that the appropriate refusal statute [was] N.J.S.A. 39:4-50.4a." The municipal court judge, however, denied the motion to dismiss and the motion to amend the refusal charge.

On April 18, 2018, after a bench trial, the municipal court judge found defendant guilty of refusal to submit to a breath test, N.J.S.A. 39:4-50.2, and resisting arrest, N.J.S.A. 2C:29-2(a)(1). On June 25, 2019, after a trial de novo, Judge Sarah Beth Johnson issued a thirteen-page written decision and found defendant guilty of refusal to submit to a breath test in violation of "N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a" and resisting arrest.

With respect to the refusal charge, Judge Johnson found that based upon the credible testimony of Sergeant Ade and other officers, the police had probable cause to arrest defendant for operating a motor vehicle under the influence of an intoxicant contrary to N.J.S.A. 39:4-50. Specifically, the judge noted that defendant smelled of alcohol, spoke incoherently, used profanity, appeared to stagger as she walked, and was ordered to submit to a drug test by an Atlantic County judge.

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Judge Johnson also found that defendant had "actual control of her vehicle" and that she "intended to operate the vehicle while under the influence because she was sitting in the driver's seat, with her seatbelt engaged and the engine running." Further, the judge found that defendant was read "the DWI standard statement" which indicates that "if [d]efendant did not provide a breath sample, she would be charged with refusal." Moreover, the judge determined that defendant "did not respond in any way" after "[Sergeant Ade] read the final paragraph of the DWI standard statement."

The judge further found that defendant failed to provide "any competent evidence detailing the nature of her mental disorders and how they may have affected her ability to understand requests such [as those] contained in the DWI standard statement." Moreover, the judge noted that defendant's "understanding of events negates the claim that [she] was confused as to the officer's instructions or her obligations under the law."

Finally, Judge Johnson concluded that defendant "purposely attempted to prevent officers from effecting an arrest." The judge found that defendant "did not exit her vehicle when asked to do so . . . had to be forcibly removed from the vehicle . . . grabbed on to the inside of her vehicle, attempting to prevent officers from removing her" and "continued to behave in a combative manner,

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cursing and spitting at officers, after she was removed from the vehicle and handcuffed." This appeal followed.

II.
In defendant's first, second, and fifth points, she argues that her

convictions for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and resisting arrest, N.J.S.A. 2C:29-2(a)(1), should be reversed because the police lacked probable cause to arrest her and there was insufficient evidence in the record to uphold the convictions. Defendant also argues in her third point that there is "insufficient evidence that she knowingly and voluntarily refused to submit to the chemical breath test." We find that these arguments are without sufficient merit to warrant extended discussion in a written opinion, Rule 2:11- 3(e)(2), and affirm substantially for the reasons detailed in Judge Johnson's comprehensive written opinion. We provide the following comments to amplify our decision.

On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a)(2). The Law Division judge must make independent findings of fact and conclusions of law but defers to the municipal court's credibility findings. State v. Robertson, 228 N.J. 138, 147 (2017).

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Our review of a de novo conviction by the Law Division is limited to the issue of whether the court's findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We are "not permitted to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). We review the legal rulings of the trial court de novo. Robertson, 228 N.J. at 148.

"It is well-settled that the trial judge 'giv[es] due, although not necessarily controlling, regard to the opportunity of the' municipal court judge to assess 'the credibility of the witnesses.'" Ibid. (alteration in original) (quoting Johnson, 42 N.J. at 157). "[A]ppellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, 157 N.J. at 474.

Here, Judge Johnson found that the police had probable cause to arrest defendant for operating her vehicle under the influence. The court also determined that defendant refused consent to provide a breath sample after being fully informed of the consequences attendant to her refusal. Judge Johnson

      

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further noted that defendant failed to "provid[e] any competent evidence detailing the nature of her 'mental disorders'" and any effect on her ability to understand the information in the "DWI standard statement." Finally, the judge found that defendant purposely prevented the police from effectuating her arrest.

We are satisfied that Judge Johnson's findings were supported by sufficient, credible evidence in the record. Johnson, 42 N.J. at 162. We therefore affirm defendant's convictions for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and resisting arrest, N.J.S.A. 2C:29-2(a)(1).

III.
In defendant's fourth point, she argues that her refusal conviction should

be reversed because the summons mistakenly cited to N.J.S.A. 39:4-50.2 rather than to N.J.S.A. 39:4-50.4a. She further argues that Judge Johnson should have reversed the municipal court's decision denying her motion to amend the charge and remanded the matter to the municipal court "for further proceedings." We disagree.

In support of her argument, defendant relies on State v. Cummings, 184 N.J. 84 (2005), for the proposition that the "appropriate statute for refusal to submit a breath sample is N.J.S.A. 39:4-50.4a." The issue before us, however, is the effect of the municipal court's failure to amend the summons to reflect that

 

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defendant should have been charged with N.J.S.A. 39:4-50.4a as opposed to N.J.S.A. 39:4-50.2, and Judge Johnson's subsequent reliance on N.J.S.A. 39:4- 50.4a in her June 25, 2019 opinion to sustain defendant's conviction for refusal.

In Cummings, the Supreme Court commented in a footnote that care should be taken to list N.J.S.A. 39:4-50.4a rather than N.J.S.A. 39:4-50.2 when charging a refusal offense. 184 N.J. at 90 n.1. The Court also indicated "we see no prejudice resulting from it [the incorrect citation in the complaint]." Ibid.

Here, as in Cummings, the police should have listed N.J.S.A. 39:4-50.4a in the body of the summons, and we can discern no basis in the record for the municipal court to deny the State's uncontested request to amend the charge to reflect that correct statutory provision. But, as in Cummings, defendant was not prejudiced by the error. In this regard, defendant offers no explanation as to how or why the faulty statutory citation inhibited her ability to prepare and present a trial defense. Frankly, it is hard to imagine how she might possibly have been confused as to what specific offense she had to answer to at trial, particularly where she initially pled guilty to N.J.S.A. 39:4-50.4a, and subsequently failed to object to the State's application to amend the charge in the remanded municipal court proceeding.

  

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In State v. Marquez, 202 N.J. 485 (2010), the Supreme Court recognized that N.J.S.A. 39:4-50.2 and N.J.S.A. 39:50.4 are "plainly interrelated" and that they "not only cross-reference one another internally, but they also rely on each other substantively. They must therefore be read together." Id. at 501-02. In the present case, defendant was fully aware of the charge for which she was tried. As such, there is no basis to overturn defendant’s refusal conviction or remand the matter for further proceedings.

Affirmed.

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"2021 Update-Wills and Estate Planning” January 13, 2021 at 12:15-1:00 PM on Facebook live

 We are offering a Free Program to our Neighbors, friends and any persons who assist with parents and seniors.  We will be having this program on Facebook live. 

      Please join us at the annual Update-Wills and Estate Planning Seminar.

"2021 Update-Wills and Estate Planning” 

January 13, 2021 at 12:15-1:00 PM   

         Program  can be watched on your computer or IPhone via Facebook live

https://www.facebook.com/Kenneth-Vercammen-Associates-PC-Law-Office-Edison-NJ-08817-149816077985

 

The Program is Free, but we request you bring a canned food donation, which will be given to the St. Matthews’s St. Vincent DePaul Food Bank. 

                                               

                                           Main Topics:

                                     1. Elimination of NJ Estate Tax 

2. Dangers of not having a proper current Will      

3. 2020 changes in Federal Estate and Gift Tax

4. The need for current Power of Attorney      

5.  Living Will & Advance Directive                    

6.  Administering the Estate & Probate

AARP recommends seniors and Home Owners to put their affairs in order. Get your Will done now!

Sandy Hook § 2.34 Disorderly conduct.

 Sandy Hook § 2.34 Disorderly conduct.

Sandy Hook § 2.34 Disorderly conduct.

(a) A person commits disorderly conduct when, with intent to cause public alarm, nuisance, jeopardy or violence, or knowingly or recklessly creating a risk thereof, such person commits any of the following prohibited acts:

(1) Engages in fighting or threatening, or in violent behavior.

(2) Uses language, an utterance, or gesture, or engages in a display or act that is obscene, physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace.

(3) Makes noise that is unreasonable, considering the nature and purpose of the actor's conduct, location, time of day or night, and other factors that would govern the conduct of a reasonably prudent person under the circumstances.

(4) Creates or maintains a hazardous or physically offensive condition.

(b) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States.

Federal jurisdiction , including Sandy Hook and National Gateway, Gunnison Beach, Fort Dix, Fort McGuire, Picatinny Arsenal, Naval Station Earle Lakehurst Joint Base McGuire-Dix-Lakehurst

 

Federal DWI in Sandy HookNJ 18 U.S.C.A 13 Laws of States adopted for areas within Federal jurisdiction , including Sandy Hook and National Gateway, Gunnison Beach, Fort Dix, Fort McGuire, Picatinny Arsenal, Naval Station Earle Lakehurst Joint Base McGuire-Dix-Lakehurst

   Federal DWI in Sandy HookNJ 18 U.S.C.A 13 Laws of States adopted for areas within Federal jurisdiction , including Sandy Hook and National Gateway, Gunnison Beach, Fort Dix, Fort McGuire, Picatinny Arsenal, Naval Station Earle Lakehurst Joint Base McGuire-Dix-Lakehurst

 

If charged with a DWI or drug offense at Sandy Hook, the case will be handled in the Federal Magistrate Court, currently in Newark at the Federal Courthouse. A Federal case takes much longer and is more complicated than the typical local Municipal Court case. Ken Vercammen has office has handled drug, DWI and different criminal charges arising out of charges at Sandy Hook. 

Hire an attorney with experience. You would not want a doctor for surgery that you were their first victim.

 

 

DWI Federal 36 C.F.R. 4.23(a) Federal Parks, including Sandy Hook, NJ

 

DWI Federal 36 C.F.R. 4.23(a) Federal Parks, including Sandy Hook, NJ

TITLE 36 - PARKS, FORESTS, AND PUBLIC PROPERTY

 

CHAPTER I - NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR

 

PART 4 - VEHICLES AND TRAFFIC SAFETY

 

4.23 - Operating under the influence of alcohol or drugs.

 

(a) Operating or being in actual physical control of a motor vehicle is prohibited while: (1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or (2) The alcohol concentration in the operator's blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. Provided however, that if State law that applies to operating a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or breath, those limits supersede the limits specified in this paragraph.

 

(b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug.

 

(c) Tests. (1) At the request or direction of an authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section, the operator shall submit to one or more tests of the blood, breath, saliva or urine for the purpose of determining blood alcohol and drug content.

 

(2) Refusal by an operator to submit to a test is prohibited and proof of refusal may be admissible in any related judicial proceeding.

 

(3) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.

 

(4) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.

 

(d) Presumptive levels. (1) The results of chemical or other quantitative tests are intended to supplement the elements of probable cause used as the basis for the arrest of an operator charged with a violation of paragraph (a)(1) of this section. If the alcohol concentration in the operator's blood or breath at the time of testing is less than alcohol concentrations specified in paragraph (a)(2) of this section, this fact does not give rise to any presumption that the operator is or is not under the influence of alcohol.

 

(2) The provisions of paragraph (d)(1) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, or a drug, or drugs, or any combination thereof.

 

[52 FR 10683, Apr. 2, 1987, as amended at 68 FR 46479, Aug. 6, 2003]

 

(a) Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

(b)

(1) Subject to paragraph (2) and for purposes of subsection (a) of this section, that which may or shall be imposed through judicial or administrative action under the law of a State, territory, possession, or district, for a conviction for operating a motor vehicle under the influence of a drug or alcohol, shall be considered to be a punishment provided by that law. Any limitation on the right or privilege to operate a motor vehicle imposed under this subsection shall apply only to the special maritime and territorial jurisdiction of the United States.

(2)

(A) In addition to any term of imprisonment provided for operating a motor vehicle under the influence of a drug or alcohol imposed under the law of a State, territory, possession, or district, the punishment for such an offense under this section shall include an additional term of imprisonment of not more than 1 year, or if serious bodily injury of a minor is caused, not more than 5 years, or if death of a minor is caused, not more than 10 years, and an additional fine under this title, or both, if—

(i) a minor (other than the offender) was present in the motor vehicle when the offense was committed; and

(ii) the law of the State, territory, possession, or district in which the offense occurred does not provide an additional term of imprisonment under the circumstances described in clause (i).

(B) For the purposes of subparagraph (A), the term “minor” means a person less than 18 years of age.

(c) Whenever any waters of the territorial sea of the United States lie outside the territory of any State, Commonwealth, territory, possession, or district, such waters (including the airspace above and the seabed and subsoil below, and artificial islands and fixed structures erected thereon) shall be deemed, for purposes of subsection (a), to lie within the area of the State, Commonwealth, territory, possession, or district that it would lie within if the boundaries of such State, Commonwealth, territory, possession, or district were extended seaward to the outer limit of the territorial sea of the United States.

 

Assimilative Crimes Act, 18 U.S.C. § 13

 

The US Attorneys Office wrote the Assimilative Crimes Act, 18 U.S.C. § 13, makes state law applicable to conduct occurring on lands reserved or acquired by the Federal government as provided in 18 U.S.C. § 7(3), when the act or omission is not made punishable by an enactment of Congress.

Prosecutions instituted under this statute are not to enforce the laws of the state, but to enforce Federal law, the details of which, instead of being recited, are adopted by reference. In addition to minor violations, the statute has been invoked to cover a number of serious criminal offenses defined by state law such as burglary and embezzlement. However, the Assimilative Crimes Act cannot be used to override other Federal policies as expressed by acts of Congress or by valid administrative orders.

The prospective incorporation of state law was upheld inUnited States v. Sharpnack, 355 U.S. 286 (1957). State law is assimilated only when no "enactment of Congress" covers the conduct. The application of this rule is not always easy. In Williams v. United States, 327 U.S. 711, 717 (1946), prosecution of a sex offense under a state statute with a higher age of consent was held impermissible, but a conviction for a shooting with intent to kill as defined by state law was upheld, despite the similarity of provisions of 18 U.S.C. § 113. Fields v. United States, 438 F.2d 205 (2d Cir.), cert. denied, 403 U.S. 907 (1971); but seeHockenberry v. United States, 422 F.2d 171 (9th Cir. 1970). See alsoUnited States v. Bowers, 660 F.2d 527 (5th Cir. 1981) (child abuse); United States v. Smith, 574 F.2d 988 (9th Cir. 1978)(sodomy). There seems to be a definite trend to construe 18 U.S.C. § 13 liberally to provide complete coverage of criminal conduct within an enclave, even where the offense is generally covered by Federal law. See, e.g., UnitedStates v. Johnson, 967 F.2d 1431 (10th Cir. 1992)(aggravated assault); United States v. Griffith, 864 F.2d 421 (6th Cir. 1988)(reckless assault); United States v. Kaufman, 862 F.2d 236 (9th Cir. 1988)(assault); Fesler v. United States, 781 F.2d 384 (5th Cir.), cert. denied, 476 U.S. 1118 (1986)(child abuse).

The Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C. §  801 etseq., because of its unlimited applicability, is not considered an "enactment of Congress" within the meaning of 18 U.S.C. § 13. SeeUnited States v. Walker, 552 F.2d 566 (4th Cir. 1977), cert. denied, 434 U.S. 848 (1977)(drunk driving). See alsoFranklin v. United States, 216 U.S. 559 (1910). Military personnel committing acts on an enclave subject to Federal jurisdiction which are not made an offense by Federal statutes other than the U.C.M.J. may therefore be prosecuted in district court for violations of state law assimilated by 18 U.S.C. § 13, even though they are also subject to court martial. However, dual prosecution, it should be noted, is constitutionally precluded by the Double Jeopardy Clause. SeeGrafton v. United States, 206 U.S. 333 (1907).

Section 13 of Title 18 does not assimilate penal provisions of state regulatory schemes. SeeUnited States v. Marcyes, 557 F.2d 1361 (9th Cir. 1977). Nor does it incorporate state administrative penalties, such as suspension of drivers licenses. SeeUnited States v. Rowe, 599 F.2d 1319 (4th Cir. 1979); United States v. Best, 573 F.2d 1095 (9th Cir. 1978). Section 13(b) allows suspension of licenses within the enclave.

Federal agency regulations, violations of which are made criminal by statute, have been held to preclude assimilation of state law. SeeUnited States v. Adams, 502 F. Supp. 21 (S.D.Fla. 1980)(carrying concealed weapon in federal courthouse); United States v. Woods, 450 F. Supp. 1335 (D.Md. 1978)(drunken driving on parkway). In Adams, 502 F. Supp. 21, the defendant was charged with carrying a concealed weapon in a United States Courthouse in violation of 18 U.S.C. § 13 and the pertinent Florida felony firearms statute. In dismissing the indictment, the Adams court concluded that a General Services Administration (GSA) petty offense weapons regulation (41 C.F.R. § 101-20.313), explicitly provided for by statute, 40 U.S.C. §  318a, amounted to an enactment of Congress within the meaning of 18 U.S.C. §  13 and, therefore, the defendant could not be prosecuted by the assimilation of state law which prohibited the same precise act.

It is important to note, however, that a critical provision of the GSA regulations apparently was not considered in Adams.See41 C.F.R. § 101-20.315 which provides in part:

Nothing in these rules and regulations shall be construed to abrogate any other Federal laws or regulations or any State and local laws and regulations applicable to any area in which the property is situated.

This non-abrogation provision arguably would permit the assimilation of appropriate state firearms laws or other state statutes notwithstanding the existence of the GSA regulations. It appears that this language has never been considered in any reported case. Moreover, no discussion of the meaning of this language appears in the pertinent parts of the Federal Register, 43 Fed.Reg. 29001, July 5, 1978; 41 Fed.Reg. 13378, March 30, 1976. 

We believe it would be reasonable to interpret this non-abrogation provision as permitting the government, in its discretion, to proceed under 18 U.S.C. § 13 and appropriate state firearms laws, rather than under the GSA weapons regulation.

 

Source https://www.justice.gov/usam/criminal-resource-manual-610-deportations-expulsions-or-other-extraordinary-renditions

What is a Testamentary Trust in a Will

  E598

What is a Testamentary Trust in a Will

The Testamentary Trust in a Will is recommended when you have minor children, or children that cant handle money.

A testamentary trust is a Trust set up inside your  Will 

A regular trust is funded during your lifetime with your assets.

 

A Testamentary Trust in a Will is not funded until you pass away.

 

 

A regular trust costs between $2,500- $4,000 to set up.

 

A Testamentary Trust in a Will is costs approx $500.

 

A testamentary trust in a Will (sometimes referred to as a will trust or trust under will) is a trust which arises upon the death of the testator, and which is specified in his or her will.

Testamentary trusts are distinguished from inter vivos trusts, which are created during the settlor's lifetime.

There are four parties involved in a testamentary trust:

·       the person who specifies that the trust be created, usually as a part of his or her will, but it may be set up in abeyance during the person's lifetime. This person may be called the grantor or trustor, but is usually referred to as the settlor;

·       the trustee, whose duty is to carry out the terms of the will. He or she may be named in the will, or may be appointed by the probate court that handles the will;

·       the beneficiary(s), who will receive the benefits of the trust;

·       Although not a party to the trust itself, the probate court is a necessary component of the trust's activity. It oversees the trustee's handling of the trust.

         A testamentary trust is a legal arrangement created as specified in a person's will, and is occasioned by the death of that person. It is created to address any estate accumulated during that person's lifetime or generated as a result of a postmortem lawsuit, such as a settlement in a survival claim, or the proceeds from a life insurance policy held on the settlor. A trust can be created to oversee such assets. A trustee is appointed to direct the trust until a set time when the trust expires, such as when minor beneficiaries reach a specified age or accomplish a deed such as completing a set educational goal or achieving a specified matrimonial status.

         For a testamentary trust, as the settlor is deceased, he or she will generally not have any influence over the trustee's exercise of discretion, although in some jurisdictions it is common for the testator to leave a letter of wishes for the trustee. In practical terms testamentary trusts tend to be driven more by the needs of the beneficiaries (particularly infant beneficiaries) than by tax considerations, which are the usual considerations in inter vivos trusts.

Source https://en.wikipedia.org/wiki/Testamentary_trust

 

Using a Spendthrift Trust in a Will for children with substance abuse issues

A spendthrift trust in a Will is one of the best options when estate planning for addicts. There are several forms of this trust a parent can consider, and each has pros and cons. At its most basic, the spendthrift trust enables a parent to put spending authority in the hands of a trustee, or a trusted person who will control the reckless spending of the child. This can prevent them from wasting funds and can prevent them from using funds to purchase drugs.

Spendthrift clauses in trusts are also valuable because a parent can use them to provide necessary funds such as food, clothing, cab fare and shelter to the beneficiary, without allowing them to spend anything else. This enables a parent to offer support, even after a parent are deceased.

Finally, spendthrift clauses typically protect the funds in the estate from creditors. So long as the funds are in the trust, creditors cannot reach them. This is ideal in instances where the child may have to declare bankruptcy due to poor financial decisions while under the influence of drugs or alcohol, has a large amount of debt, or is likely to accrue a large amount of debt. However, once funds are taken out of the trust, they can be garnished by creditors. Creditors include child support, alimony, taxes, Medicaid.

In some cases, a parent may be able to set up a discretionary spendthrift supplementary needs trust, which enables the child to qualify for needs-based government benefits (SSI, Medicaid, housing, SNAP, etc.), while offering the other benefits of the trust.

The best way to set this up is to create a Testamentary Discretionary Trust with a spendthrift clause, which will come into effect after a parent are deceased. Then, the funds will be moved into trust and spending will be controlled by the trustee for the benefit of the child (the beneficiary). Source https://beginningstreatment.com/estate-planning-for-addicts/

N.J.S.A. 3B:31-38 Discretionary Trusts

N.J.S.A. 3B:31-68 Discretionary Powers

Originally drafted by one of NJ’s top attorneys Glenn A. Henkel, also a past great Wrestler at St. Thomas Bishop Ahr High School Edison with Ken V on wrestling team

Woodbridge Library Wills, Estate Planning & Probate Seminar June 15,

 Woodbridge Library

Wills, Estate Planning & Probate Seminar

  June 15, 2020 at 7pm Monday Live on Zoom

WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND MAKE PLANNING EASY Free program open to the public, you do not need to be a Township resident to attend. 

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ (Author- Wills and Estate Administration by the ABA)

Main Topics:

1. NJ Estate Tax eliminated

2. The 2020 changes in Federal Estate and Gift Tax 

3. Power of Attorneys recommendations 

4. Living Will & Advance Directive 

5. Administering the Estate/ Probate/Surrogate

6. Avoiding unnecessary expenses and saving your family money

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

     Contact the Library for details on how to watch on your computer or IPad for free using Zoom

Woodbridge Public Library

1 George Frederick Plaza

Woodbridge NJ 07095 

732-634-4450

https://www.facebook.com/events/2606052349623609

Can’t attend?  We can email you materials Send email to VercammenLaw@Njlaws.com

  Free Will Seminars and Speakers Bureau for Groups

SPEAKERS BUREAU

         At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the " Speakers Bureau " is a service designed to educate citizens about how laws affect their lives and how the judicial system operates.  We have attorneys available to speak to businesspersons, educational, civic and social organizations on a wide range of topics during business hours. If your organization in Central NJ would like to schedule a Will & Estates seminar, call Kenneth Vercammen’s Law Office at 732-572-0500 or email Vercammenlaw@njlaws.com

     10 years ago the AARP Network Attorneys of the Edison/Metuchen/Woodbridge area several years ago established a community Speakers Bureau to provide educational programs to AARP and senior clubs, Unions and Middlesex County companies. Now, Ken Vercammen, Esq. and 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 

Details on free programs available

     These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar. The following Seminars are now available: 

1. WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND 

MAKE PLANNING EASY 

2. POWER OF ATTORNEY to permit family to pay your bills if you are temporarily disabled and permit doctors to talk with family 

       All instructors are licensed attorneys who have been in practice at least 25 years. All instructors are members of the American Bar Association, New Jersey 

State Bar Association, and Middlesex County Bar Association. All programs include free written materials. 

       You don't have to be wealthy or near death to do some thinking about a Will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of state law. 

      Topics discussed include: Who needs a Will?; What if you die without a Will (intestacy)?; Mechanics of a Will; "Living Will"; Powers of Attorney; Selecting an executor, trustee, and guardian; Proper Will execution; Inheritance Taxes, Estate Taxes $14,000 annual gift tax exclusion,  Bequests to charity, Why you need a "Self-Proving" Will and Estate Administration/ Probate.

       Sample materials: Hand-outs on Wills, Living Wills/Medical Advance Directive, Power of Attorney, Probate and Administration of an Estate, Real Estate, Working with your Attorney, Consumers Guide to New Jersey Laws, and Senior Citizen Rights. 

SPEAKERS BUREAU 

At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the " Speakers Bureau " is a service designed to educate citizens about how laws affect their lives and how the judicial system operates. We have attorneys available to speak to businesspersons, educational, civic and social organizations on a wide range of topics during business hours.

In today's complex world, few people can function successfully and safely without competent legal advice. In order to insure your estate plans are legally set up, you need to know exactly where you stand so that you can avoid possibly catastrophic mistakes impacting both you and your family. 

About the speaker: Kenneth A. Vercammen is a trial attorney in Edison, NJ. We is the author of the American Bar Association’s book “Wills and Estate Administration”

He is co-chair of the ABA 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 Nuts & Bolts of Elder Law & Estate Administration program. 

He was Editor of the ABA Estate Planning Probate Committee Newsletter. 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