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".

Tuesday, October 27, 2015

New Law Requires certain police vehicles to be equipped with cameras. P.L.2014, c.54. -see A2280

New Law Requires certain police vehicles to be equipped with cameras.
P.L.2014, c.54.   -see   A2280

The Senate Budget and Appropriations Committee reports favorably Assembly Bill No. 2280.
      The bill requires certain municipal police vehicles to be equipped with mobile video recording systems, and increases an existing surcharge on persons convicted of driving while intoxicated to provide funding for the municipal cost of equipping police vehicles with video systems.  Under the bill, every new or used municipal police vehicle purchased, leased, or otherwise acquired on or after the bill’s effective date that is primarily used for traffic stops must be equipped with a mobile video recording system.
      The bill defines a “mobile video recording system” as a device or system installed or used in a police vehicle or worn or otherwise used by an officer that electronically records visual images depicting activities that take place during a motor vehicle stop or other law enforcement action.
      The bill increases, from $100 to $125, the current surcharge imposed on persons convicted of driving while intoxicated. The bill provides for the additional $25 surcharge to be payable to the State, county, or municipal entity that issued the summons, and stipulates that the increased amounts payable to municipalities from the surcharge must be used for the cost of equipping police vehicles with mobile video recording systems. 
      The bill requires the Attorney General to adopt rules and regulations to effectuate the bill’s provisions.  The bill takes effect on the first day of the sixth month following enactment, but permits the Attorney General to take prior administrative actions in advance of the bill’s effective date.
      As reported, this bill is identical to Senate Bill No. 1305, as also reported by the committee. 

Sunday, October 25, 2015

Sentencing in a Criminal case

Sentencing in a Criminal case

The Judge at the time of sentencing always has several options including but not limited to jail, probation, community service, restitution and substance abuse counseling.  The Probation Department, which has interviewed you, will prepare what is called a Pre-Sentence Report. This provides information regarding the offense to the Court together with information regarding your background.  The judge will also review any letters or documents that are submitted to the Court on your behalf.

.  Please bring an extra copy of all letters of reference, pay stubs and any other documents for the judge just in case the court has lost the copies.  Please provide a list of  (15) reasons why the judge should not give you the maximum penalties, fines or impose a jail sentence.
I recommend very strongly that you obtain letters from relatives or other individuals who know you who would be willing to write to the Court to indicate that there should not be incarceration. These letters should set forth favorable aspects regarding your life and your future.  They should point out some of the good traits that you possess. They should also feel free to put any other reasons why the Court should impose the minimum penalties. The letter should include your date of birth and indictment number.
         Obtain written proof of attendance at any substance abuse programs, rehab, community service, etc. Phone calls not sufficient.
         Obtain a letter from your employer. When plea agreement calls for a county jail or prison term, follow the instruction on the website involving work release and ISP. If you are not working, get a job and have your employer will fill out the Work Release paperwork and ISP paperwork.
here if we decide to print the summary in the page display

The direct address between the judge and the convicted defendant prior to sentencing.  During the address, the judge speaks directly to the defendant and asks if the defendant has anything to add prior to hearing the sentence.  The defendant then answers the judge and may say anything in an effort to lessen the severity of the sentence, such as an apology, an offering of remorse, or an explanation of the motivations that drove the defendant's criminal actions. Source: Cornell Law

Sunday, October 18, 2015

The state must prove the driver actually operated the vehicle if the police did not see defendant driving

The state must prove the driver actually operated the vehicle if the police did not see defendant driving

We rely on State v. Joshua K. Putz, unpublished opinion, App. Div. Docket No. A-1004-08T4 (May 26, 2009) – DWI conviction reversed.  The arresting officer observed and approached defendant's truck, in which he was sleeping, that was parked with the engine running in a turnaround on private property. The record does not support a finding beyond a reasonable doubt that defendant intended to operate his vehicle at the time of his arrest. 

            The court in Putz wrote:
The Law Division judge on de novo review deferred to the credibility determination by the Municipal Court judge and found the facts from the evidence. He distinguished State v. Daly, 64 N.J. 122, 124 (1973), on the ground that Daly was sleeping in a reclined driver's seat whereas defendant's seat was upright. He also pointed out that defendant did not tell Stefano that he was sleeping but, rather, that he was waiting for someone. He found the fact that the parking brake was not set further weakened defendant's claim that he had no intention of driving his truck. He concluded that the Municipal Court judge properly inferred from the evidence that defendant intended to move his vehicle. Thus, he convicted defendant of DUI and imposed the same sentence. This appeal followed……

Although the judge found as a fact that defendant moved his vehicle, there is simply no record evidence to support that finding as the testimony respecting the movement of the truck related only to what happened to the truck while defendant and Hackett were at Applebee's. Had defendant moved the truck after he returned from Applebee's, Hackett would not have seen it in a different position. More troubling is that any movement of the truck was found at all with the testimony of defendant and Hackett rejected as not credible. Without that testimony, there was no evidence of movement of the truck at all and the conviction based on actual operation cannot be sustained. Thus, we can affirm only if defendant intended to move the vehicle.


[The Supreme court was of State w Sweeney] case was followed by Daly, supra, 64 N.J. 122. There, the defendant was found sitting in the driver's seat of his car with the motor running at 3:20 a.m. in the parking lot of a tavern. Id. at 124. The lights were off and the seat was "slightly reclined." Ibid. (footnote omitted). As the officer shined a light on the defendant, he looked up. Ibid. The officer testified that the defendant had not been asleep at the time. Ibid. The "[defendant told the officer he was sitting in the car to keep warm and intended to drive home in a little while." Ibid. The defendant testified that he had left the tavern between twelve and twelve-thirty in the morning, "he realized he had too much to drink and decided to 'sleep it off.'" Ibid. He got into his car and reclined the seat, and fell asleep. Ibid. He was awakened a few times by the cold and started the engine. Ibid. He was sound asleep when the officer awakened him and he told the officer he had no intention to drive, but was arrested anyway. Id. at 124-25.

Under the facts of this case, the Supreme Court concluded that the mere evidence that the defendant started the engine was not sufficient to sustain a conviction under N.J.S.A. 39:4-50. Daly, supra, 64 N.J. at 125. "[Evidence of intent to drive or move the vehicle at the time must appear." Ibid. (emphasis added). There was no evidence of intent where Daly "'sat behind the wheel with the engine running for a considerable length of time, using the engine only to power the heater in the car but with no intent to move the vehicle.'" State v. Mulch, 107 N.J. 467, 477 (1987) (quoting State v. Stiene, 203 N.J. Super. 275, 278 (App. Div.), certif. denied, 102 N.J. 375 (1985)).


We have recently distilled extant case law regarding operation as follows:

"Operation" may be proved by actual observation of the defendant driving while intoxicated. State v. Prociuk, 145 N.J. Super. 570, 573 (Law Div. 1976); by observation of the defendant in or out of the vehicle under circumstances indicating the defendant had been driving while intoxicated, Mulcahy[, supra,] 107 N.J.[ at] 476 . . . ; [State v. ]Morris, 262 N.J. Super. [413,] 419-20 [(App. Div. 1993)]; . . . Sweeney, [supra,] 77 N.J. Super. [at] 521 . . . ; State v. Witter, 33 N.J. Super. 1, 5-7 (App. Div. 1954); or by defendant's admission, State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant's conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 106 (1981); State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974) (affirming defendant's conviction based on his admission to drinking and driving when the police woke him up in his parked car on Interstate 287); State v. Guerrido, 60 N.J. Super. 505, 509 (App. Div. 1960) (affirming defendant's conviction based on the testimony of two witnesses that he was intoxicated and his admission to police that he had been driving after his car was found "buried full length in some shrubbery and lilac bushes["]). [State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005).]

Here, defendant's denial of any intention to drive was at least circumstantially corroborated by the testimony of other witnesses whom the judge found credible. The testimony of Stefano alone cannot support a finding beyond a reasonable doubt that defendant intended to operate his vehicle at the time of his arrest, as required by Daly, supra, 64 N.J. at 125, and Prociuk, supra, 145 N.J. Super. at 573. He was in such a deep stupor at 2:00 a.m. when he was arrested that he could not have had any such intent. He certainly made no movements or statements to the officer suggesting that he intended to operate that truck at the moment of arrest. Furthermore, the evidence clearly suggested that he had been soundly asleep for several hours when Stefano finally roused him because he had made no further calls to Gapinski after 12:12 a.m.

The conclusion that defendant intended to move the vehicle cannot have been made with respect to the moment of arrest, but must have been predicated upon his "intent" before he fell asleep. We are not persuaded by the Law Division judge's reliance on the fact that the parking brake was not set, defendant's seat was not reclined, and he did not tell the officer that he was sleeping, but rather that he was waiting for his buddy as sufficient to infer that he had an intent to operate his vehicle at some unspecified point in time. This evidence is simply insufficient to support a reasonable inference of intent to operate given defendant's prolonged stupor. In any event, we have found no reported decision sustaining a conviction based on an intent long since dissipated by the time of arrest and see no valid basis for distinguishing the facts in this case from those found insufficient in Daly, supra, 64 N.J. at 125, and Prociuk, supra, 145 N.J. Super. at 574.



Monday, October 12, 2015

Expungment of criminal charges in NJ

details at http://www.njlaws.com/expungement.html
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. For example, if you were convicted or pleaded guilty to a disorderly person offense (misdemeanor type) more than 5 years ago, and have not been convicted of anything since, you can have your attorney petition to the Superior Court for an Expungement (Erase and removal) of your criminal record. If you plead guilty to a town ordinance (ex. - Seaside Heights Drinking in Public) you can petition for an Expungement after waiting two years. A Juvenile delinquent/guilty finding for a minor can also be expunged/erased under similar circumstances. In addition, minor drug arrests which resulted in first offender conditional discharge can be erased if one year has passed since termination of probation or conclusion of court proceedings.

Most importantly, arrests on frivolous complaints which did not result in a conviction or if charges were dismissed, can be expunged, without waiting. THE EXPUNGEMENT PETITION

You should contact an attorney experienced with handling expungements in the Superior Court. Your attorney will prepare an expungement petition which under state law must contain substantial background information, including:

a. Date of Birth and Social Security #

b. Date of Arrest

c. Statute Arrested For and Statute Convicted

d. Original Indictment, Summons, or Complaint Number

e. Petitioners Date of Conviction or Date of Disposition

f. Courts Disposition of the Matter and Punishment Adopted, if Any

In addition, the Expungement Petition must have an affidavit that states that there are no charges pending and that the petitioner never previously received a prior expungement. The Expungement Petition is filed in the county where the offense took place, not where the defendant lives. Once filed, the Superior Court will set a hearing within 35-60 days.

As required under the statute, the attorney for the applicant must serve a copy of the Petition Order for hearing and supporting documents on the following people:

1. Superintendent of State Police 2. Attorney General 3. County Prosecutor of the county where the court is located 4. The Chief of Police where the event took place 5. The chief law enforcement officer of any law enforcement agency which participated in the arrest 6. The warden of any institution where the petitioner was confined, and 7. If the disposition was made by a municipal court, upon the municipal court which heard the case.

If you satisfy all other statutory requirements and there is no objection by the entities notified, the court will usually grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge (remove) records of said disposition including evidence of arrest, detention, conviction, and proceedings.

There are additional pleadings which the applicants attorney must prepare and file. If you have an old offense, it is important that you have the arrest expunged to keep your name and record clean.

Expungement statute was reviewed in recent cases

Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a criminal expungement Municipal Court matter.

1. Legal Services to be provided:

2. Flat fee: $1,200- $2,000

Friday, October 09, 2015

Myers Police have pc if odor of pot State v Myers __ NJ Super. __ (App. ...

Police have pc if odor of pot State v Myers __ NJ Super. __ (App. Div. 2015)


The odor of marijuana has long been held to provide probable cause of the commission of a marijuana offense. Under the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to -16, registered qualifying patients receive registry identification cards, and their medical use of marijuana as authorized by the CUMMA is exempt from criminal liability under N.J.S.A. 2C:35-18. Where, as here, there is no evidence that the person suspected of possessing or using marijuana has a registry identification card, the odor of marijuana still provides probable cause of the commission of a marijuana offense. Here, the odor of burnt marijuana emanating from defendant's car gave the officer probable cause to arrest him for a marijuana offense committed in the officer's presence

State v Frye Prior DWI counts for enhanced refusal.

Prior DWI counts for enhanced refusal. State v. Frye  ___ NJ. ___ (2014) A-30-12

   The Court reaffirms its holding in In re Bergwall, 85 N.J. 382 (1981). A prior DWI conviction may enhance the sentence for a subsequent refusal conviction under the refusal statute, N.J.S.A. 39:4-50.4a

Tuesday, October 06, 2015

Drug & Pot charge defense

Kenneth Vercammens Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses:

NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish;

NJSA 2C:35-10(b), using or being under the influence of CDS;

NJSA 2C:35-10(c), failure to deliver CDS to police;

NJSA 2C:36-2, possession of drug paraphernalia

Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed.

Moreover, the court must suspend the defendants drivers license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.

If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge.


New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted supervisory treatment under 24:21-27, 2C:43-12 or 2C: 36A-l may apply for a conditional discharge. The court upon notice to the prosecutor and subject to 2C: 36A-l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).

Since the granting of a conditional discharge is optional to the court, you should be prepared to prove, through letters, documents, or even witnesses, that the defendants continued presence in the community or in a civil treatment program, will not pose a danger to the community.

You should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendants drivers license between six months and two years.

The conditional discharge period is also between six months and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.


A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5-7. The court rules have been amended to provide the Suppression Motion can be held directly in the Municipal Court. Your attorney can subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is very important.


The Municipal Court prosecutor is responsible for providing discovery. Rules 3:13-3, 7:4-2, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990). The State must prove the substance seized was a controlled dangerous substance (CDS).

To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35-19. If the State intends to introduce the lab certificate at the trial, a notice of an intent to proffer that certificate and all reports relating to the analysis of the CDS shall be served on defense counsel at least 20 days before the proceeding begins. This includes an actual copy of the lab certificate.