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".

Sunday, November 25, 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA General Practice, Solo and Small Firm Division American Bar Association

Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ

In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
____________________________________________________


1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.

Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. 
 The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.

In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]

The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)

In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).

Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.

In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.

Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.

The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test.
 Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.

The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.

Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.

The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.

However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.

In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).

The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.

Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.

He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has
appeared in Courts throughout New Jersey several times each week on personal injury matters, Municipal Court trials, and contested Probate hearings.

2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.


The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com

Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com

Monday, October 22, 2007

Kofi Ries v. Department of Corrections

10-18-07 A-6484-05T2

Pursuant to N.J.S.A. 30:1B-3 and N.J.S.A. 30:4-91.3, the
Commissioner of Corrections maintains authority over adult
offenders committed to state correctional institutions, even at
times when they are physically outside prison walls.
Consequently, the Department of Corrections was authorized to
discipline appellant, who tested positive for cocaine and
opiates upon his return to state prison after escaping from a
halfway house, for violating the Department's regulation *.204
prohibiting the use of controlled dangerous substances. See
N.J.A.C. 10A:4-4.1.

Long Branch Housing Authority vs. Toni Villano

10-16-07* A-4617-05T1

A tenant in public housing that is under the control of a
public housing agency may be removed from the leased premises
pursuant to N.J.S.A. 2A:18-61.1e(2) when the tenant
substantially violates a covenant or agreement pertaining to
illegal uses of controlled dangerous substances, provided the
covenant or agreement conforms to applicable federal guidelines.
Moreover, federal law permits a tenant to be evicted from public
housing when a member of the household or guest engages in drugrelated
criminal activity in the leased premises, regardless of
whether the tenant knew or should have known of the illegal
activity. (*Approved for Publication date)

State v. Jessie D. Chambers

10-15-07* A-6180-04T4

Under N.J.S.A. 2C:35-7.1, the crime of possession of a
CDS with the intent to distribute is elevated from a thirddegree
crime to a second-degree crime if the offense is
committed within 500 feet of a public building. In this
opinion, we conclude that a museum qualifies as a public
building even if it does not maintain regular hours and is only
open to the public upon request.(*Approved for Publication date)

Monday, September 24, 2007

State v. Jason G. Meyer

9-19-07 (A-122-05/A-43-06)

“Special probation” under N.J.S.A. 2C:35-14 is a type of
disposition for certain non-violent drug offenders, but it is
not the exclusive route to admission into Drug Court.
Consistent with the Drug Court Manual and the general sentencing
provisions of the Code of Criminal Justice, N.J.S.A. 2C:45-1, a
trial court has discretion to admit non-violent drug-dependent
offenders into Drug Court.

Monday, August 06, 2007

In the Matter of Expungement Application of G.R.

08-03-07 A-0079-06T1

N.J.S.A. 2C:35-5a(1), criminalizes the knowing or
purposeful possession of a CDS "with intent to manufacture,
distribute or dispense" to another. The statute does not draw a
distinction between distributing or dispensing to another in
exchange for money and a gratuitous transfer of the narcotics.
Either conduct constitutes the crime as defined by N.J.S.A.
2C:35-5a(1). However, for purpose of expungement, it does make
a difference. A sale of CDS is a bar to expungement; but a
transfer for no consideration is not. Therefore, we hold that
the facts must be examined to determine if the underlying
possession of the CDS was with intent to sell, as opposed to
dispense or distribute without a sale.

A judgment of conviction for possession of a CDS "with
intent to dispense or distribute" contrary to N.J.S.A. 2C:35-
5a(1), by itself is not conclusive of intent to sell or intent
to dispense for no consideration. The description of the
offense in the judgment of conviction does not aid the judge in
deciding whether the statutory bar applies in a given situation.
To the extent that State v. P.L., 369 N.J. Super. 291 (App. Div.
2004) makes such a suggestion, we disagree with that opinion.

Monday, July 23, 2007

Division of Alcoholic Beverage Control v. Maynards, Inc.

7-18-07 (A-120-05)
The Alcoholic Beverage Control Act, N.J.S.A. 33:1-1 to – 97,
imposes strict liability on a licensee for a violation
of the Act’s provisions by the licensee’s employees. The
measure of punishment is determined by considering all relevant
facts, including the licensee’s knowledge, efforts taken to
prevent violations, and character and reputation; whether
excessive hardship would result; and whether repeated violations
were the direct product of governmental action.

Monday, July 09, 2007

State v. David L. Franchetta, Jr.

06-28-07 A-1498-06T5

This case presents a novel issue as to whether a "rebound
effect" or a "hangover effect" from a previous ingestion of
cocaine constitutes being "under the influence" of a narcotic
drug pursuant to N.J.S.A. 39:4-50. We held that it does.
Although the cocaine ingested by defendant was not
pharmacologically active at the time of the incident, we found
that it was the proximate cause of his impaired behavior and
that he was therefore "under the influence" of a narcotic drug
for purposes of N.J.S.A. 39:4-50.

Saturday, April 07, 2007

1 Nurse may be required to testify in DWI 02-09-07 State of New Jersey v. Robert C. Renshaw A-0712-05T1

State of New Jersey v. Robert C. Renshaw A-0712-05T1
The Court that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions.

"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
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Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court

Sunday, March 18, 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER

General Practice, Solo and Small Firm Division:
March 2007
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.

Brian T Hermanson Ponca City, OK Chair (580) 762-0020

Kenneth Vercammen, Esq. Editor & Deputy Chair

In this Issue:
1. Sample CONFIDENTIAL CRIMINAL INTERVIEW FORM
2 Sample DWI Cross Examination Questions
3 WE PUBLISH YOUR ARTICLES AND FORMS


1. CONFIDENTIAL CRIMINAL INTERVIEW FORM

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 WOODBRIDGE AVENUE
EDISON, NJ 08817
732-572-0500
PLEASE PRINT

NAME ____________________________________________________

ADDRESS _________________________________________________

CITY _______________________ STATE ____ ZIP ______________

CELL #(_____)_________________ PHONE-DAY(____)________________

NIGHT (______)_________________

TODAY'S DATE ____/_____/_____ E-MAIL ________________________

Referred By: __________________________________
If referred by a person, is this a client or attorney?

CHARGES/TICKETS ISSUED [provide tickets, hearing notice and other important papers to front desk to be copied]
1. ____________________________________________________
2. ____________________________________________________
3. ____________________________________________________
4. ____________________________________________________
IMPORTANT INFORMATION
Date of Offense: __________________ Time: _____ (A.M./P.M.) Your Age _____
Town: ___________________________ (street/location)?____________________
What Happened: _________________________________________________
________________________________________________________________________________________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Write additional details on the back of this page. YOU MUST FILL OUT BOTH
PAGES PRIOR TO SEEING THE ATTORNEY.
Kenneth Vercammen, Esq. Confidential interview form page 2
Other Persons Arrested or Witnesses:
______________________ ______________________ _________________
co-defendant/ Witness Name Their Address Phone No.
What did you tell the police? ________________________________________
______________________________________________________________________________________________________________________________

Occupation: _____________ Employer: _______________ Town: ________
[Attach your business card to clipboard.]
Do you need your drivers license for work? ____ Distance driven to work: ____

Prior criminal arrests or convictions, even if charges dismissed (include description of each charge, date of arrest, and town/county of arrest. -If none, write none):
_____________________________________________________________________________________________________________________________________________________________________________________________

Prior motor vehicle convictions, town and year (ex: drunk driving, driving while suspended, no insurance, etc. -If none, write none): _____________________
_____________________________________________________________________________________________________________________________________________________________________________________________Prior Traffic ticket downgrades to no point tickets since 1999 [39:4-97.2]:
1. Town _______________________ Year ___________ [if none, write none]
2. Town _______________________ Year ___________
[Please note the DMV/MVC only permits 2 "no point" downgrades in 5 years.]

If you are not a US Citizen, please check here: ______

What questions do you have/ how can we help you and anything else important:
____________________________________________________


All new clients are entitled to receive our Free Email Newsletter featuring updates in Traffic Law, Criminal and Personal Injury. Please help yourself to all brochures in the reception area. If you have a business card, please attach it to the clipboard. All paid clients receive a T-shirt upon request. This page must be filled out before meeting with the attorney. Thank you.

Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a municipal court matter.
1. Legal Services To Be Provided- Please read!
We will review and research necessary statutes and caselaw, speak with the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services and at all times will seek to achieve solutions which are just and reasonable for you.

1. Office consultation with client
2. Preparation of statement to provide legal services [ retainer agreement setting forth fees and work to be performed;
3. Offer sound legal advice to client;
4. Preparation of letter of representation to Municipal Court after fee paid;
5. Preparation of letter of representation to Municipal Court Prosecutor;
6. Review documents supplied by client and court;
7. Copies of all correspondence to Court and Prosecutor to client;
8. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure;
9. Review of necessary statutes and case law;
10. Follow up with Municipal Prosecutor for discovery if suspension or jail is likely;
11. Prepare defense and mitigating factors;
12. Miscellaneous correspondence, drafting of brief/ pleadings if needed;
13. Review Court hearing notice and send letter to client to remind them of hearing
14. Travel to Municipal Court;
15. Representation in Municipal Court.
16. Preparation of End of Case Letter and client questionnaire.
17. Free Brochures provided on other legal topics such as Personal Injury, Worker's Comp, Wills, Probate and other matter we help clients
18. Free subscription to monthly e-mail newsletter.
19. Answer specific questions after the case is over
20. Free T-shirts, Magnets, Can Koozie, Stadium Cup, Free USA Keychains, USA Flag Calendar for clients - Please ask.
Legal Fees.
Fees must be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen Law Office today. Fees are to be paid at initial consultation (today). Fees must be paid in full prior to a Letter of Representation being sent to the Court. Neither this office nor other area attorneys accept payment plans if the fees are less than $2,500. Fees are not reduced and not negotiable. We cannot send a letter of representation to the court until the Retainer is paid in full. This is a non-refundable retainer/representation fee, pursuant to Superior Court decisions and New Jersey RPC.
What you should do: After you have retained [paid] your attorney, call the court, plead not guilty and give the court the name of your attorney. In traffic tickets, the phone number is on the back of the ticket.
Write your notes on the back of this paper during your interview.



2- Sample DWI Cross Examination Questions
By Kenneth Vercammen, Esq.
Editor- NJ Municipal Court Law Review and lecturer on DWI for both the NJ State Bar Association and NJ Police Chiefs Association

Probable Cause for Stop
1. No accident?
2. No criminal violation?
3. Traffic light per ticket?
4. According to Report-Not close to hitting other car
5. According to Report not endangering any person/property?
6. No details in report of driving willful on went to disregard of rights of others?
7. No ticket for lane violation?
8. No ticket for careless?
9. No reason to believe weapons?
10. No tip by reliable informant?
11. Pulled over my client without a warrant?
12. No Radar?
13. No Pace?
14. Could not have issued ticket for speeding?

Cross of Police Regarding Field Sobriety
15. Do you have documents describing how, under what conditions and by whom each test was given? Are you aware the National Highway Traffic Safety Administration has advice and instructions on giving the Field Sobriety Test.
15A. Walk and Turn
Your report does not say that you:
• Always begin by having the subject assume the heel-toe stance
• Verify that the subject understands that the stance is to be maintained while the instructions are given.
• If the subject breaks away from the stance as the instructions are given, cease giving instructions until the stance is resumed
• Tell the subject that he or she will be required to take 9 heel-to-toe steps down the line, to turn, and to take 9 heel-to-toe steps up the line.
• Demonstrate several heel-to-toe steps
• Demonstrate the turn
• Tell the subject to keep the arms at the sides, to watch the feet, to count the steps aloud, and not to stop walking until the test is completed.
• Ask the subject whether he or she understands; it not, re-explain whatever the subject doesn’t understand
• Tell the subject to begin
• If the subject staggers or stops, allow him or her to resume from the point of interruption; do not require the subject to start over from the beginning
• Cannot keep balance while listening to instructions (i.e., breaks away from the
heel-to-toe stance)
• Starts before instructions are finished
• Keeps balance but does not remember instructions
• Stops while walking to steady self
• Does not touch heel-to-toe while walking (i.e., misses by at least one-half inch)
• Loses balance while walking (i.e., steps off line)
• Uses arms for balance (i.e., raises arms by six inches or more)
• Loses balance while turning
• Incorrect number of steps
Are you aware the NHTSA states that officers should note in their reports how many times each of the eight clues appears. However, isn't it true the NHTSA for purposes of applying the standardized criterion, a clue should be “counted” only once, even if it appears more than once.
15B. One Leg Stand
Your report does not say you would:
• Tell the subject to stand with heels together, and arms at sides
• Tell the subject not to start the test until you say to do so
• Ask the subject whether he or she understands
• Tell the subject he or she will have to stand on one foot, with the other foot about six inches off the ground
• Demonstrate the stance
• Tell the subject to count from 1 to 30, by thousands
• Demonstrate the count, for several seconds
• Ask the subject whether he or she understands; if not, re-explain whatever is not understood
• Tell the subject to begin
• If the subject stops or puts the foot down, allow him or her to resume at the point of interruption; do not require the count to begin again at “one thousand and one”
• Swaying while balancing
• Uses arms to balance (i.e., raises arms from side six inches or more)
• Slightly uneasy
• Quite unsteady
• Starts before instructions are finished
• Puts foot down
• Hops
Are you aware the NHTSA states that there are the only four validated clues of One Leg Stand.
15C. Horizontal Gaze Nystagmus Test
Your report does not say:
• Hold the stimulus 12-15 inches in front of the subject’s face
• Keep the tip of the stimulus slightly above the subject’s face
• Always move the stimulus smoothly
• Always check for all three clues in both eyes
• Lack of smooth pursuit
• Distinct jerking at maximum deviation
• Onset of jerking within 45 degrees
Are you aware that no other “clues” are recognized by NHTSA as valid indicators of horizontal gaze nystagmus. In particular, NHTSA does not support that allegation that onset angle can reliably be used to estimate BAC, and considers any such estimation to be misuse of the horizontal gaze nystagmus test.

16. Documents describing test results?
17. Documents describing "test" results?
18. What are procedures to permit defendant to obtain independent tests of blood, breath or?

According to your Alcohol influence rep?
19. Section 25 of Alcohol Influence report, Able to walk, talk?
not falling
-not on hands and knees
-not staggering
20. According to Section 26, Ability to stand?
-no swaying
-no leaning for balance
-feet not wide apart
21. According to Section 27, Speech-not slurred?
-not incoherent
-not slobbering
-could understand what she was saying
22. Demeanor-cooperative, polite, calm?
23. Eyes watery now?
24. When is allergy season?

DWI Questions Regarding Under Influence
25. Did prosecutor or state supply an experts report?
26. Not a medical doctor?
27. No test of Pharmacological effects of any medications?
28. No direct measurement of the quantity of any medications or drugs in defendants blood?
29. Gas Chromatography/ Mass spectrometry can provide direct measurement of quality?
30. You don't have any gas Chromatography results with your blood?
31. Not licensed to prescribe medications?
32. Have not attended Medical School?
33. Not Qualified to Render a Medical Opinion
34. Do not have a Ph.D..?
35. Do not have a Masters degree in Chemistry
36. Do not have a BS degree in Chemistry?
[saved 100 Cross Exam Q-DWI Brendan articles 4/3/03]
_____________________________________________

Send Us Your Marketing Tips
Send us your short tips on your great or new successful marketing techniques.

3. WE PUBLISH YOUR FORMS AND ARTICLES

To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Committee.

Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.

You can become a published ABA author. Enjoy your many ABA benefits.


General Practice, Solo and Small Firm Division:
CRIMINAL LAW COMMITTEE
Brian T Hermanson Ponca City, OK
Chair (580) 762-0020

KENNETH VERCAMMEN Deputy Chair
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
kenv@njlaws.com

ABA CRIMINAL LAW COMMITTEE NEWSLETTER

General Practice, Solo and Small Firm Division:
March 2007
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.

Brian T Hermanson Ponca City, OK Chair (580) 762-0020

Kenneth Vercammen, Esq. Editor & Deputy Chair

In this Issue:
1. Sample CONFIDENTIAL CRIMINAL INTERVIEW FORM
2 Sample DWI Cross Examination Questions
3 WE PUBLISH YOUR ARTICLES AND FORMS


1. CONFIDENTIAL CRIMINAL INTERVIEW FORM

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 WOODBRIDGE AVENUE
EDISON, NJ 08817
732-572-0500
PLEASE PRINT

NAME ____________________________________________________

ADDRESS _________________________________________________

CITY _______________________ STATE ____ ZIP ______________

CELL #(_____)_________________ PHONE-DAY(____)________________

NIGHT (______)_________________

TODAY'S DATE ____/_____/_____ E-MAIL ________________________

Referred By: __________________________________
If referred by a person, is this a client or attorney?

CHARGES/TICKETS ISSUED [provide tickets, hearing notice and other important papers to front desk to be copied]
1. ____________________________________________________
2. ____________________________________________________
3. ____________________________________________________
4. ____________________________________________________
IMPORTANT INFORMATION
Date of Offense: __________________ Time: _____ (A.M./P.M.) Your Age _____
Town: ___________________________ (street/location)?____________________
What Happened: _________________________________________________
________________________________________________________________________________________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Write additional details on the back of this page. YOU MUST FILL OUT BOTH
PAGES PRIOR TO SEEING THE ATTORNEY.
Kenneth Vercammen, Esq. Confidential interview form page 2
Other Persons Arrested or Witnesses:
______________________ ______________________ _________________
co-defendant/ Witness Name Their Address Phone No.
What did you tell the police? ________________________________________
______________________________________________________________________________________________________________________________

Occupation: _____________ Employer: _______________ Town: ________
[Attach your business card to clipboard.]
Do you need your drivers license for work? ____ Distance driven to work: ____

Prior criminal arrests or convictions, even if charges dismissed (include description of each charge, date of arrest, and town/county of arrest. -If none, write none):
_____________________________________________________________________________________________________________________________________________________________________________________________

Prior motor vehicle convictions, town and year (ex: drunk driving, driving while suspended, no insurance, etc. -If none, write none): _____________________
_____________________________________________________________________________________________________________________________________________________________________________________________Prior Traffic ticket downgrades to no point tickets since 1999 [39:4-97.2]:
1. Town _______________________ Year ___________ [if none, write none]
2. Town _______________________ Year ___________
[Please note the DMV/MVC only permits 2 "no point" downgrades in 5 years.]

If you are not a US Citizen, please check here: ______

What questions do you have/ how can we help you and anything else important:
____________________________________________________


All new clients are entitled to receive our Free Email Newsletter featuring updates in Traffic Law, Criminal and Personal Injury. Please help yourself to all brochures in the reception area. If you have a business card, please attach it to the clipboard. All paid clients receive a T-shirt upon request. This page must be filled out before meeting with the attorney. Thank you.

Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a municipal court matter.
1. Legal Services To Be Provided- Please read!
We will review and research necessary statutes and caselaw, speak with the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services and at all times will seek to achieve solutions which are just and reasonable for you.

1. Office consultation with client
2. Preparation of statement to provide legal services [ retainer agreement setting forth fees and work to be performed;
3. Offer sound legal advice to client;
4. Preparation of letter of representation to Municipal Court after fee paid;
5. Preparation of letter of representation to Municipal Court Prosecutor;
6. Review documents supplied by client and court;
7. Copies of all correspondence to Court and Prosecutor to client;
8. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure;
9. Review of necessary statutes and case law;
10. Follow up with Municipal Prosecutor for discovery if suspension or jail is likely;
11. Prepare defense and mitigating factors;
12. Miscellaneous correspondence, drafting of brief/ pleadings if needed;
13. Review Court hearing notice and send letter to client to remind them of hearing
14. Travel to Municipal Court;
15. Representation in Municipal Court.
16. Preparation of End of Case Letter and client questionnaire.
17. Free Brochures provided on other legal topics such as Personal Injury, Worker's Comp, Wills, Probate and other matter we help clients
18. Free subscription to monthly e-mail newsletter.
19. Answer specific questions after the case is over
20. Free T-shirts, Magnets, Can Koozie, Stadium Cup, Free USA Keychains, USA Flag Calendar for clients - Please ask.
Legal Fees.
Fees must be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen Law Office today. Fees are to be paid at initial consultation (today). Fees must be paid in full prior to a Letter of Representation being sent to the Court. Neither this office nor other area attorneys accept payment plans if the fees are less than $2,500. Fees are not reduced and not negotiable. We cannot send a letter of representation to the court until the Retainer is paid in full. This is a non-refundable retainer/representation fee, pursuant to Superior Court decisions and New Jersey RPC.
What you should do: After you have retained [paid] your attorney, call the court, plead not guilty and give the court the name of your attorney. In traffic tickets, the phone number is on the back of the ticket.
Write your notes on the back of this paper during your interview.



2- Sample DWI Cross Examination Questions
By Kenneth Vercammen, Esq.
Editor- NJ Municipal Court Law Review and lecturer on DWI for both the NJ State Bar Association and NJ Police Chiefs Association

Probable Cause for Stop
1. No accident?
2. No criminal violation?
3. Traffic light per ticket?
4. According to Report-Not close to hitting other car
5. According to Report not endangering any person/property?
6. No details in report of driving willful on went to disregard of rights of others?
7. No ticket for lane violation?
8. No ticket for careless?
9. No reason to believe weapons?
10. No tip by reliable informant?
11. Pulled over my client without a warrant?
12. No Radar?
13. No Pace?
14. Could not have issued ticket for speeding?

Cross of Police Regarding Field Sobriety
15. Do you have documents describing how, under what conditions and by whom each test was given? Are you aware the National Highway Traffic Safety Administration has advice and instructions on giving the Field Sobriety Test.
15A. Walk and Turn
Your report does not say that you:
• Always begin by having the subject assume the heel-toe stance
• Verify that the subject understands that the stance is to be maintained while the instructions are given.
• If the subject breaks away from the stance as the instructions are given, cease giving instructions until the stance is resumed
• Tell the subject that he or she will be required to take 9 heel-to-toe steps down the line, to turn, and to take 9 heel-to-toe steps up the line.
• Demonstrate several heel-to-toe steps
• Demonstrate the turn
• Tell the subject to keep the arms at the sides, to watch the feet, to count the steps aloud, and not to stop walking until the test is completed.
• Ask the subject whether he or she understands; it not, re-explain whatever the subject doesn’t understand
• Tell the subject to begin
• If the subject staggers or stops, allow him or her to resume from the point of interruption; do not require the subject to start over from the beginning
• Cannot keep balance while listening to instructions (i.e., breaks away from the
heel-to-toe stance)
• Starts before instructions are finished
• Keeps balance but does not remember instructions
• Stops while walking to steady self
• Does not touch heel-to-toe while walking (i.e., misses by at least one-half inch)
• Loses balance while walking (i.e., steps off line)
• Uses arms for balance (i.e., raises arms by six inches or more)
• Loses balance while turning
• Incorrect number of steps
Are you aware the NHTSA states that officers should note in their reports how many times each of the eight clues appears. However, isn't it true the NHTSA for purposes of applying the standardized criterion, a clue should be “counted” only once, even if it appears more than once.
15B. One Leg Stand
Your report does not say you would:
• Tell the subject to stand with heels together, and arms at sides
• Tell the subject not to start the test until you say to do so
• Ask the subject whether he or she understands
• Tell the subject he or she will have to stand on one foot, with the other foot about six inches off the ground
• Demonstrate the stance
• Tell the subject to count from 1 to 30, by thousands
• Demonstrate the count, for several seconds
• Ask the subject whether he or she understands; if not, re-explain whatever is not understood
• Tell the subject to begin
• If the subject stops or puts the foot down, allow him or her to resume at the point of interruption; do not require the count to begin again at “one thousand and one”
• Swaying while balancing
• Uses arms to balance (i.e., raises arms from side six inches or more)
• Slightly uneasy
• Quite unsteady
• Starts before instructions are finished
• Puts foot down
• Hops
Are you aware the NHTSA states that there are the only four validated clues of One Leg Stand.
15C. Horizontal Gaze Nystagmus Test
Your report does not say:
• Hold the stimulus 12-15 inches in front of the subject’s face
• Keep the tip of the stimulus slightly above the subject’s face
• Always move the stimulus smoothly
• Always check for all three clues in both eyes
• Lack of smooth pursuit
• Distinct jerking at maximum deviation
• Onset of jerking within 45 degrees
Are you aware that no other “clues” are recognized by NHTSA as valid indicators of horizontal gaze nystagmus. In particular, NHTSA does not support that allegation that onset angle can reliably be used to estimate BAC, and considers any such estimation to be misuse of the horizontal gaze nystagmus test.

16. Documents describing test results?
17. Documents describing "test" results?
18. What are procedures to permit defendant to obtain independent tests of blood, breath or?

According to your Alcohol influence rep?
19. Section 25 of Alcohol Influence report, Able to walk, talk?
not falling
-not on hands and knees
-not staggering
20. According to Section 26, Ability to stand?
-no swaying
-no leaning for balance
-feet not wide apart
21. According to Section 27, Speech-not slurred?
-not incoherent
-not slobbering
-could understand what she was saying
22. Demeanor-cooperative, polite, calm?
23. Eyes watery now?
24. When is allergy season?

DWI Questions Regarding Under Influence
25. Did prosecutor or state supply an experts report?
26. Not a medical doctor?
27. No test of Pharmacological effects of any medications?
28. No direct measurement of the quantity of any medications or drugs in defendants blood?
29. Gas Chromatography/ Mass spectrometry can provide direct measurement of quality?
30. You don't have any gas Chromatography results with your blood?
31. Not licensed to prescribe medications?
32. Have not attended Medical School?
33. Not Qualified to Render a Medical Opinion
34. Do not have a Ph.D..?
35. Do not have a Masters degree in Chemistry
36. Do not have a BS degree in Chemistry?
[saved 100 Cross Exam Q-DWI Brendan articles 4/3/03]
_____________________________________________

Send Us Your Marketing Tips
Send us your short tips on your great or new successful marketing techniques.

3. WE PUBLISH YOUR FORMS AND ARTICLES

To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Committee.

Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.

You can become a published ABA author. Enjoy your many ABA benefits.


General Practice, Solo and Small Firm Division:
CRIMINAL LAW COMMITTEE
Brian T Hermanson Ponca City, OK
Chair (580) 762-0020

KENNETH VERCAMMEN Deputy Chair
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
kenv@njlaws.com

Thursday, March 08, 2007

New criminal case: Two-stage interrogation not objectionable. State v. O'Neill 388 N.J. Super. 135 (App. Div. 2006)

New criminal case: Two-stage interrogation not objectionable. State v. O'Neill 388 N.J. Super. 135 (App. Div. 2006)

The court reject defendant's claim that the two tape-recorded statements he made to the police should have been suppressed because they were the product of a two-stage interrogation technique (question-first, warn-later) found to be improper by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court

New criminal case: Two-stage interrogation not objectionable. State v. O'Neill 388 N.J. Super. 135 (App. Div. 2006)

New criminal case: Two-stage interrogation not objectionable. State v. O'Neill 388 N.J. Super. 135 (App. Div. 2006)

The court reject defendant's claim that the two tape-recorded statements he made to the police should have been suppressed because they were the product of a two-stage interrogation technique (question-first, warn-later) found to be improper by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court

Monday, February 26, 2007

. Erase old criminal arrests and guilty pleas- New legal service available
ERASE/EXPUNGEMENT OF OLD ARRESTS TODAY TO AVOID EMBARRASSMENT AND DISCLOSURE

by KENNETH A. VERCAMMEN, ESQ.
Thousands of citizens in New Jersey over the past 20 years have been arrested for criminal, disorderly, and municipal ordinance offenses. They may include your neighbors, friends and loyal church worshipers. The courts and police must keep a record of all arrests and convictions, even if 20 years old. These "secrets of the past" could be open to anyone in New Jersey including credit agencies. Under one proposal, for a $15.00 fee, someone could ask the state police for a person's criminal record, even arrests with not guilty findings. Allowing access to a person's old criminal conviction or arrest record could open the door for discrimination against someone who now is a productive, respected, and law abiding citizen. Many employers often do a criminal background check on new and promoted employees.
Fortunately, if you are a law abiding citizen, you can now have old arrests or convictions erased from public records and police folders. Under NJSA 2C:52-1 et seq. past criminal convictions can be expunged/ erased under certain instances.
If someone has been arrested or even had a private criminal complaint signed against them in the Municipal Court, they have a criminal record, even if the charges were dismissed.
Under NJSA 2C:52-1 et seq. past criminal arrests and convictions can be expunged/ erased under certain instances. We always recommend individuals hire an attorney to obtain an expungement. The process for all expungements are held in the Superior Court. It takes a minimum of three months for the court to grant the expungement. The requirements are very formal. There can be a waiting period between 6 months up to 10 years after the criminal cases is finished.
When retaining the attorney, obtain a "certified disposition" of the court's decision, from the Court itself.


Recent cases: Confession made after arrest warrant admissible. State v. Bell 388 N.J. Super. 629 (App. Div. 2006)

Where police arrested defendant pursuant to an arrest warrant but without a search warrant for the third party's residence in which they found him, his confession, made later at the police station, need not be suppressed. Source: NJ Law Journal November 27, 2006

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court

New statute Broadens definition of "toxic chemical" in the drug statutes to include nitrous oxide

Governor Jon S. Corzine signed the following legislation. S-1280/A-3083 (Bryant/Fisher, Burzichelli) - This bill strengthens the prohibition on inhalation abuse, known as "huffing," by broadening the definition of "toxic chemical" in N.J.S.A. 2C:35-10.4.
Under current law, it is a disorderly persons offense to inhale the fumes of any toxic chemical for the purpose of causing a condition of intoxication or to possess any toxic chemical for the purpose of causing a condition of intoxication. A disorderly persons offense is punishable by a term of imprisonment of up to six months or a fine of up to $1,000 or both.
The bill defines "toxic chemical" as "any chemical or substance having the property of releasing toxic fumes," and provides that the term "toxic chemical" includes but is not limited to nitrous oxide, and any glue, cement, adhesive, paint remover or other substance containing a chemical capable of releasing vapors or fumes causing a condition of intoxication, inebriation, excitement, stupefaction, or dulling of the brain or nervous system.
The bill specifically provides that it does not apply to the lawful possession and use of nitrous oxide for the purpose of medical, surgical, or dental care by a person duly licensed to administer nitrous oxide, or to the lawful sale of nitrous oxide for non medical use.
The bill amends N.J.S.A. 2C:36-1 through N.J.S.A. 2C:36-3, the drug paraphernalia statutes, to include objects commonly associated with inhalation abuse, such as the following: compressed gas containers, such as tanks, cartridges or canisters, that contain food grade or pharmaceutical grade nitrous oxide as a principal ingredient; chargers or charging bottles, meaning metal, ceramic or plastic devices that contain an interior pin that may be used to expel compressed gas from a cartridge or canister; and tubes, balloons, bags, fabrics, bottles or other containers used to concentrate or hold in suspension a toxic chemical or the fumes of a toxic chemical. Use or possession of a toxic chemical under N.J.S. 2C:36-2 would be a disorderly persons offense. Distributing, dispensing or possessing with intent to distribute or manufacture a toxic chemical under N.J.S. 2C:36-3 would be a crime of the fourth degree punishable by a term of imprisonment not to exceed 18 months, a fine of up to $10,000 or both.
http://www.njleg.state.nj.us/2006/Bills/A3500/3083_S1.HTM

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court

Saturday, January 27, 2007

Law requiring convicted criminals to provide DNA sample constitutional

State v. John O’Hagen (A-70-05) 1-24-07

The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1-
20.17-20.28, as amended, does not violate the rights guaranteed
by the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, Paragraphs 1 and 7 of the New Jersey
Constitution. Law requiring convicted criminals to provide DNA sample constitutional.

1-24-07 A.A., by his parent and guardian B.A., v. Attorney
General of the State of New Jersey et als.(A-105-05)

DNA test results lawfully obtained pursuant to the New Jersey
DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17-
20.28, as amended, may be used to solve crimes committed prior
to the taking of the DNA test.


1-18-07 State v. Vincent Dispoto (A-103-05)

Because there was insufficient evidence to support the issuance
of the underlying domestic violence search warrant, the criminal
search warrant was invalid as fruit of the poisonous tree.
While this holding renders moot the Appellate Division’s finding
that failure to re-administer Miranda warnings at the time of
arrest required suppression of Dispoto’s post-arrest
incriminating statements, the Court adds in respect of the issue
of the Miranda warnings only that no bright line or per se rule
governs whether re-administratiocustodial Miranda warning.

Law requiring convicted criminals to provide DNA sample constitutional

State v. John O’Hagen (A-70-05) 1-24-07

The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1-
20.17-20.28, as amended, does not violate the rights guaranteed
by the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, Paragraphs 1 and 7 of the New Jersey
Constitution. Law requiring convicted criminals to provide DNA sample constitutional.

1-24-07 A.A., by his parent and guardian B.A., v. Attorney
General of the State of New Jersey et als.(A-105-05)

DNA test results lawfully obtained pursuant to the New Jersey
DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17-
20.28, as amended, may be used to solve crimes committed prior
to the taking of the DNA test.


1-18-07 State v. Vincent Dispoto (A-103-05)

Because there was insufficient evidence to support the issuance
of the underlying domestic violence search warrant, the criminal
search warrant was invalid as fruit of the poisonous tree.
While this holding renders moot the Appellate Division’s finding
that failure to re-administer Miranda warnings at the time of
arrest required suppression of Dispoto’s post-arrest
incriminating statements, the Court adds in respect of the issue
of the Miranda warnings only that no bright line or per se rule
governs whether re-administratiocustodial Miranda warning.

internet subscriber has an expectation of privacy

State of New Jersey v. Shirley Reid 01-22-07
A-3424-05T5

The Appellate Division held that an internet subscriber has an expectation of
privacy in information on file with the internet provider
identifying her as the user associated with an anonymous "screen
name." Since the police obtained that identifying information
by means of an invalid subpoena, issued by a municipal court
administrator and returnable on the date of issuance, the order
suppressing the evidence obtained from the internet provider was
affirmed.

Monday, January 22, 2007

No warrantless search of auto after occupants are out.

State v. Eckel 185 NJ 523 (2006).

A warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger police or destroy evidence cannot be justified under any exception to the warrant requirement and is unreasonable. Once the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception in inapplicable. If the occupant has been arrested but not removed and secured, the court will have to determine on a case-by-case basis whether the suspect was in a position to compromise police safety or evidence to justify resort to the search incident to arrest exception.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com