Kenneth Vercammen (732) 572-0500

2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense". He was awarded the NJ State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters.

New clients: email us evenings and weekends- go to

Monday, October 17, 2016

Alcotest dwi Breath Test Coordinator N.J. State Police sergeant charged with records tampering in DWI cases for failure to conduct proper tests of breath machines

Alcotest dwi Breath Test Coordinator N.J. State Police sergeant charged with records tampering in DWI cases for failure to conduct proper tests of breath machines


on September 19, 2016  A New Jersey State Police sergeant has been charged with records tampering for allegedly skipping a required step in the calibration of alcohol breath-testing devices, documents show. 
The disclosure could open up more than 20,000 DWI cases to court challenges, according to a copy of a letter sent to court administrators and obtained by NJ Advance Media..
       Sgt. Marc Dennis, a coordinator in the State Police Alcohol Drug Testing Unit, is accused of third degree tampering with public records and fourth degree falsifying or tampering with records, according to the letter, sent Monday by the state Division of Criminal Justice, which brought the charges.  
      Elie Honig, the division's director, wrote that Dennis was accused of deliberately omitting a step in re-calibrating three Alcotest devices — more commonly known as breathalyzers — which are used to test the intoxication level of accused drunken drivers. 

Lt. Brian Polite, a spokesman for the State Police, said Monday that Dennis' behavior was noticed by his supervisor and "immediately reported" to the division's internal affairs unit, the Office of Professional Standards. 
"Once it was determined that there was a possibility of criminal charges being filed, it was then referred to Division of Criminal Justice," he said. 

In a letter to court administrators, state prosecutors outlined the technical details of the accusations against State Police Sgt. Marc Dennis.

    But Dennis calibrated Alcotest instruments in Middlesex, Monmouth, Ocean, Somerset, and Union counties over the course of seven years, and state authorities have identified 20,667 individual cases involving devices he handled, according to the letter. 
         The accusation could create a tangle of litigation similar to another State Police case involving a drug lab technician, Kamalkant Shah, who was accused of falsifying test results in a single marijuana case, bringing nearly 15,000 drug cases into question.
As in the drug lab case, the Attorney General's Office has requested a judge be appointed as a "special master" to field the potential glut of appeals.

State authorities allege that Dennis falsely certified to performing temperature checks when recalibrating the Alcotest devices, which were used in two DWI cases before being taken out of service.

           Honig said that step, while not scientifically necessary, is required under a procedure developed by the State Police's chief forensic scientist. That procedure was created to comply with a state Supreme Court decision regarding the admissibility of DWI test results in court, known as State v. Chun, the letter said.
         "The breath test results were not relied upon in reaching the disposition of these two cases," Honig wrote. "We have notified defense counsel in those cases of the circumstances described in this letter."

Dennis was suspended without pay.  source

Sunday, September 25, 2016

No automatic right to discovery of other files State v. Hernandez 225 NJ 451 (2016)

No automatic right to discovery of other files
State v. Hernandez 225 NJ 451 (2016)

Although the discovery rule generally requires that the State provide all evidence relevant to the defense of criminal charges, it does not open the door to foraging through files of other cases in search of relevant evidence. The discovery ordered by the trial court and  Appellate Division exceeds the limits of Rule 3:13-3(b) and is not supported by this Court’s jurisprudence.  

Sunday, September 18, 2016

Police video is public record under OPRA Paff v Ocean County Prosecutors Officer

Police video is public record under OPRA  Paff v Ocean County Prosecutors Officer __ NJ Super. __ (App. Div. 2016)

(MVRs) in  police vehicles - which, in accordance with the police chief’s  written policy order, are generated automatically whenever the  vehicle’s overhead lights are activated - are “government  records” subject to disclosure under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Appellant Ocean County  Prosecutor’s Office failed to carry its statutory burden to show that the films fall within an exception under OPRA. Judge Gilson dissents. A-4226-14T3

Monday, September 05, 2016

Suppression where stop based only for high beam State v. Scriven

Suppression where stop based only for high beam State v. Scriven __ NJ __

The trial court and Appellate Division properly concluded that the motor-vehicle stop violated the Federal and State Constitutions. The language of the high-beam statute, N.J.S.A. 39:3-60, is unambiguous; drivers are required to dim their high beams only when approaching an oncoming vehicle. Neither a car parked on a perpendicular street nor an on-foot police officer count as an oncoming vehicle. The judgment of the Appellate Division upholding the trial court’s suppression of the evidence is affirmed. (A-11-15)

Sunday, August 21, 2016

Prosecutor must provide videotape and audiotape plus names of officers from other towns involved in stop State v Stein

Prosecutor must provide videotape and audiotape plus names of officers from other towns involved in stop
State v Stein

A-26 September Term 2014

In this appeal from defendant’s conviction for driving while intoxicated (DWI) and careless driving, the Court considers the obligations of a municipal prosecutor under Rule 7:7-7(b), which governs discovery in municipal court proceedings.
Defendant Robert Stein was charged with DWI and careless driving after a motor vehicle accident in Wayne Township. The responding officers observed that defendant’s eyes were bloodshot and watery, his speech was slurred, his breath smelled of alcohol, and, as he walked, he swayed and grasped for support. Defendant also failed the field sobriety tests. Defendant claimed that, while performing the sobriety tests, he was suffering the effects of the crash of his vehicle and deployment of the air bags, which hit him squarely in the face. The two breath samples that defendant gave during a breathalyzer test revealed blood alcohol concentrations of 0.17 and 0.18 percent.
In pretrial discovery, defendant requested the names of the police officers who responded to the scene, including those from a neighboring township. The municipal prosecutor did not provide the names of the neighboring township’s officers, and defendant did not raise the issue with the municipal court. Defendant also requested videotapes which may have recorded his appearance, behavior, and motor skills at the accident scene and police headquarters. The municipal prosecutor repeatedly stated, at a pretrial hearing and trial, that videotapes did not exist. Defendant disputed that contention, and continued to request the tapes. The record is unclear on whether videotapes existed when defendant requested them because that issue was neither presented to, nor determined by, the municipal court.
The municipal court found defendant guilty of DWI and careless driving. The court based its DWI finding on the breathalyzer readings and the officers’ observations of defendant. The court sentenced defendant, as a third-time DWI offender, to incarceration for a term of 180 days in the county jail and loss of his license for a period of ten years. After a trial de novo on the record, the Law Division also convicted defendant of DWI and careless driving, based on the breathalyzer readings and, separately, on observational evidence. The court imposed the same sentence as did the municipal court. Additionally, the Law Division ruled that the municipal prosecutor was not required to provide discovery of the names of the neighboring police officers or the videotapes that defendant requested. The Appellate Division affirmed the motor-vehicle convictions and the Law Division’s discovery rulings. This Court granted limited certification. 220 N.J. 97 (2014).
H_E_L_D_:_ _Under Rule 7:7-7(b), the municipal prosecutor was required to provide defendant with the names of the police officers from the adjacent jurisdiction who responded to the accident scene. Because, when the prosecutor failed to provide the information, defendant did not raise this issue before the municipal court, or seek relief under the Rule, the issue has been waived. The prosecutor was also required to provide the videotapes that defendant requested, if they existed, since such information was clearly relevant to a DWI defense. Because the Court cannot determine from the record whether any videotapes exist, the matter is remanded to the Law Division for further proceedings on this issue.
1. The resolution by the trial court of a discovery issue is entitled to substantial deference and will not be overturned absent an abuse of discretion. On appeal, a court need not defer to a discovery order that is based on a mistaken understanding of the applicable law. In reviewing the meaning of a court rule, this Court owes no deference to the interpretations of the trial court and the Appellate Division, unless they are persuasive in their reasoning.   

2. The discovery rules governing the municipal court and the Criminal Part of the Law Division are nearly identical, and both mandate the disclosure of the same categories of information. Broad discovery and the open-file approach apply in criminal cases to ensure fair and just trials. In light of the similarity between criminal and municipal court cases, the procedural protections afforded, and their discovery rules, the liberal approach to discovery in criminal cases is applicable in municipal court cases. Rule 7:7-7(b) provides that a defendant has a right to discovery of all relevant material in a municipal court case. The Rule sets forth eleven specific categories of information that a defendant is entitled to receive, on written request to the municipal prosecutor.   
3. Under Rule 7:7-7(b)(7), if the municipal prosecutor knows that police officers from an adjoining jurisdiction have relevant information pertaining to a DWI case, their names and addresses must be disclosed to the defendant. The Rule does not distinguish between individuals with relevant information who are located within the municipality having jurisdiction over the charges against a defendant, and those located outside the jurisdiction.   
4. Under Rule 7:7-7(b)(6), a municipal prosecutor is required to provide a defendant, upon his request, with relevant documentary evidence, including video and sound recordings and images if it is within the State’s custody or control. A video or sound recording, such as a recording from a patrol car’s dashboard camera, or a video recording of a breathalyzer test, or defendant’s appearance, behavior and motor skills, including his performance of psychomotor physical or sobriety tests, is relevant to prove or disprove a DWI defendant’s intoxication. The State may seek the redaction of a video recording, or an in camera review, if necessary, under appropriate circumstances and consistent with a defendant’s fair-trial rights. To ensure the availability of such evidence, a defendant should give written notice to the municipal prosecutor to preserve pertinent videotapes.   
5. In this case, the municipal prosecutor had an obligation under Rule 7:7-7(b)(7) to provide defendant with the names of the police officers from the adjoining town of Pequannock who had responded to the accident scene, based on the two discovery letters that defense counsel sent to the municipal prosecutor. However, defendant did not seek to compel the prosecutor to comply with the State’s disclosure obligations, as authorized by Rule 7:7-7(j). Because defendant did not raise or preserve the issue in municipal court, the Court declines to consider it on appeal.   
6. The two discovery letters that defendant’s counsel sent to the municipal prosecutor requesting videotapes, or recordings made by a video-equipped police vehicle, of the accident scene and of defendant’s appearance and performance of the sobriety tests, unquestionably sought relevant evidence. This Court disagrees with the determination of the courts below, and holds that the videotapes must be disclosed under Rule 7:7-7(b)(6), provided that such recordings existed at the time defendant sought the information. Such tapes would provide evidence relevant to defendant’s sobriety and the officers’ conclusion that defendant was under the influence.   
7. The Court remands this matter to the Law Division for further proceedings to determine whether any relevant video recordings ever existed, or were available when defendant made the discovery requests. Depending on the court’s conclusions on remand regarding whether the tapes existed, the Law Division has wide latitude to fashion an appropriate remedy pursuant to Rule 7:7-7(j).   
The judgment of the Appellate Division is A_F_F_I_R_M_E_D_ _I_N_ _P_A_R_T_ _and R_E_V_E_R_S_E_D_ _I_N_ _P_A_R_T_, and the matter is R_E_M_A_N_D_E_D_ _to the Law Division for further proceedings consistent with the Court’s opinion.