NJ Drug Law- Cases and Articles on Drug arrests and charges

Police use of GPS device on car violates 4th Amendment United State v Jones

2012-01-29T17:23:00.001-08:00

Police use of GPS device on car violates 4^th Amendment

United State v Jones __ US ___

January 23, 2012 No. 10–1259.

The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

(a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.

(b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165; Soldal v. Cook County, 506 U. S. 56. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position.

Objection to lab report starts after all reports provided. State v. Heisler

2012-01-29T16:18:00.000-08:00

Objection to lab report starts after all reports provided. State v. Heisler __ NJ Super. __ A 6281-08T4

The court held that the ten-day period in which a defendant must object to the admission into evidence of a lab certificate, or else waive his right to confront the laboratory analyst, begins to run only after the State has provided "all reports relating to the analysis in question." N.J.S.A. 2C:35-19. The court resolved ambiguity in the statute that requires the State to serve its notice of intent to use a lab certificate and supporting data twenty days before trial, but requires a defendant to object within ten days of receiving only the notice of intent. As the defendant's objection was timely under our statutory construction, we reversed his convictions for being under the influence of CDS, and operating a vehicle while knowingly having CDS in his possession or in the vehicle.

Error by police dispatcher in invalid arrest warrant requires suppression of evidence under NJ Constitution. State v. Handy 206 NJ 39 (2011)

2012-01-29T16:17:00.003-08:00

Error by police dispatcher in invalid arrest warrant requires suppression of evidence under NJ Constitution. State v. Handy 206 NJ 39 (2011)

The dispatcher’s conduct – advising an officer on the scene that there was an outstanding warrant when the warrant contained a differently spelled name and a different date of birth – was objectively unreasonable and violated the Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution. Evidence uncovered during the search incident to the arrest must be suppressed.

Officer not always permitted to render opinion. State v. McLean 205 NJ 438 (2011)

2012-01-29T16:17:00.001-08:00

Officer not always permitted to render opinion. State v. McLean 205 NJ 438 (2011)

The opinion offered by the officer does not meet the requirements needed to qualify it as a lay opinion and permitting the officer to testify about his opinion invaded the fact-finding province of the jury. This case involved a drug dealing conviction where a detective, after testifying about transactions seen from an unmarked car while on undercover drug surveillance, opined that they were narcotics sale.

Personal Use Does not Permit Growing Medical Marijuana. State v. Wilson 421 NJ Super 301 (App. Div. 2011)

2012-01-29T16:16:00.001-08:00

Personal Use Does not Permit Growing Medical Marijuana. State v. Wilson 421 NJ Super 301 (App. Div. 2011)

The principal issue in this is case is whether the personal use defense for manufacturing a controlled dangerous substance, N.J.S.A. 2C:35-2, applies to the growing of marijuana under N.J.S.A. 2C:35-5. After reviewing the relevant statutory language, as well as the purpose for the personal use exemption, we affirm the trial court's determination that there is no personal use exemption for growing marijuana.

Police did not Require Warrant for Cell Phone Site. State v. Earls 420 NJ Super. 583 (App. Div. 2011)

2012-01-29T16:15:00.000-08:00

Police did not Require Warrant for Cell Phone Site. State v. Earls 420 NJ Super. 583 (App. Div. 2011)

The use of cell phone site information, obtained by the police without a warrant from a suspect's cell phone provider to determine his general location, does not violate the Fourth Amendment or its counterpart in the New Jersey Constitution because a person has no constitutionally protected right of privacy in his general location on roadways or other public places.

2C:39-3f Dum-dum or body armor penetrating bullet Prohibited weapons and devices

2011-10-27T15:18:00.000-07:00

NJSA 2C:35-5 a (1) Manufacturing, distributing or dispensing

2011-10-27T15:08:00.000-07:00

NJSA 2C:35-5 a (1) Manufacturing, distributing or dispensing

NJSA 2C:39-4.1 Weapons; controlled dangerous substances and other offenses, penalties.

2011-10-27T15:05:00.001-07:00

NJSA 2C:39-4.1 Weapons; controlled dangerous substances and other offenses, penalties.

1. a. Any person who has in his possession any firearm while in the course of committing, attempting to commit, or conspiring to commit a violation of N.J.S.2C:35-3, N.J.S. 2C:35-4, N.J.S.2C:35-5, section 3 or section 5 of P.L.1997, c.194 (C.2C:35-5.2 or 2C:35-5.3), N.J.S.2C:35-6, section 1 of P.L.1987, c.101 (C.2C:35-7), section 1 of P.L.1997, c.327 (C.2C:35-7.1), N.J.S.2C:35-11 or N.J.S.2C:16-1 is guilty of a crime of the second degree.

b.Any person who has in his possession any weapon, except a firearm, with a purpose to use such weapon unlawfully against the person or property of another, while in the course of committing, attempting to commit, or conspiring to commit a violation of N.J.S.2C:35-3, N.J.S.2C:35-4, N.J.S.2C:35-5, section 3 or 5 of P.L.1997, c.194 (C.2C:35-5.2 or 2C:35-5.3), N.J.S.2C:35-6, section 1 of P.L.1987, c.101 (C.2C:35-7), section 1 of P.L.1997,c.327 (C.2C:35-7.1), N.J.S.2C:35-11 or N.J.S.2C:16-1 is guilty of a crime of the second degree.

c.Any person who has in his possession any weapon, except a firearm, under circumstances not manifestly appropriate for such lawful uses as the weapon may have, while in the course of committing, attempting to commit, or conspiring to commit a violation of N.J.S.2C:35-3, N.J.S.2C:35-4, N.J.S.2C:35-5, section 3 or section 5 of P.L. 1997, c.194 (C.2C:35-5.2 or 2C:35-5.3), N.J.S.2C:35-6, section 1 of P.L.1987, c.101 (C.2C:35-7), section 1 of P.L.1997,c.327(C.2C:35-7.1), N.J.S.2C:35-11 or N.J.S.2C:16-1 is guilty of a crime of the second degree.

d.Notwithstanding the provisions of N.J.S.2C:1-8 or any other provision of law, a conviction arising under this section shall not merge with a conviction for a violation of any of the sections of chapter 35 or chapter 16 referred to in this section nor shall any conviction under those sections merge with a conviction under this section. Notwithstanding the provisions of N.J.S.2C:44-5 or any other provision of law, the sentence imposed upon a violation of this section shall be ordered to be served consecutively to that imposed for any conviction for a violation of any of the sections of chapter 35 or chapter 16 referred to in this section or a conviction for conspiracy or attempt to violate any of those sections.

e.Nothing herein shall be deemed to preclude, if the evidence so warrants, an indictment and conviction for a violation of N.J.S.2C:39-4 or N.J.S.2C:39-5 or any other provision of law.

f.Nothing herein shall prevent the court from also imposing enhanced punishments, pursuant to N.J.S.2C:35-8, section 2 of P.L.1997, c.117 (C.2C:43-7.2), or any other provision of law, or an extended term.

NJSA 2C:5-2 Conspiracy.

2011-10-27T15:03:00.000-07:00

NJSA 2C:5-2 Conspiracy.

2C:5-2 Conspiracy. a. Definition of conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(1)Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2)Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

b.Scope of conspiratorial relationship. If a person guilty of conspiracy, as defined by subsection a. of this section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime.

c.Conspiracy with multiple objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship. It shall not be a defense to a charge under this section that one or more of the objectives of the conspiracy was not criminal; provided that one or more of its objectives or the means of promoting or facilitating an objective of the conspiracy is criminal.

d.Overt act. No person may be convicted of conspiracy to commit a crime other than a crime of the first or second degree or distribution or possession with intent to distribute a controlled dangerous substance or controlled substance analog as defined in chapter 35 of this title, unless an overt act in pursuance of such conspiracy is proved to have been done by him or by a person with whom he conspired.

e.Renunciation of purpose. It is an affirmative defense which the actor must prove by a preponderance of the evidence that he, after conspiring to commit a crime, informed the authority of the existence of the conspiracy and his participation therein, and thwarted or caused to be thwarted the commission of any offense in furtherance of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of criminal purpose as defined in N.J.S.2C:5-1d.; provided, however, that an attempt as defined in N.J.S.2C:5-1 shall not be considered an offense for purposes of renunciation under this subsection.

f.Duration of conspiracy. For the purpose of N.J.S.2C:1-6d.:

(1)Conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired; and

(2)Such abandonment is presumed with respect to a crime other than one of the first or second degree if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and

(3)If an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.

g.Leader of organized crime. A person is a leader of organized crime if he purposefully conspires with others as an organizer, supervisor, manager or financier to commit a continuing series of crimes which constitute a pattern of racketeering activity under the provisions of N.J.S. 2C:41-1, provided, however, that notwithstanding 2C:1-8a. (2), a conviction of leader of organized crime shall not merge with the conviction of any other crime which constitutes racketeering activity under 2C:41-1. As used in this section, "financier" means a person who provides money, credit or a thing of value with the purpose or knowledge that it will be used to finance or support the operations of a conspiracy to commit a series of crimes which constitute a pattern of racketeering activity, including but not limited to the purchase of materials to be used in the commission of crimes, buying or renting housing or vehicles, purchasing transportation for members of the conspiracy or otherwise facilitating the commission of crimes which constitute a pattern of racketeering activity.

2C:35-10 a(1) Possession heroin

2011-10-27T14:31:00.000-07:00

CONSTRUCTIVE POSSESSION 2C:2-1

2011-10-27T07:52:00.000-07:00

POSSESSION

(N.J.S.A. 2C:2-1)

To “possess” an item under the law, one must have a knowing, intentional control of that item accompanied by a knowledge of its character. So, a person who possesses an item such as ( IDENTIFY RELEVANT ITEM(S)) must know or be aware that (he/she) possesses it, and (he/she) must know what it is that (he/she) possesses or controls (that it is ). [WHERE APPLICABLE, charge: Possession cannot merely be a passing control, fleeting or uncertain in its nature.] In other words, to “possess” an item, one must knowingly procure or receive an item or be aware of (his/her) control thereof for a sufficient period of time to have been able to relinquish (his/her) control if (he/she) chose to do so.

The State must prove beyond a reasonable doubt that a possessor acted knowingly in possessing the item. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of the high probability of their existence. A person acts knowingly as to a result of his/her conduct if he is aware that it is practically certain that that conduct will cause such a result. Knowing, with knowledge, or equivalent terms have the same meaning.

Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce witnesses to testify that a particular defendant stated, for example, that he acted with knowledge when he had dominion and control over a particular thing.

Revised 4/18/05

POSSESSION (N.J.S.A. 2C:2-1 Page 2 of 3

It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inference which may arise from the nature of the acts and the surrounding circumstances.

Apersonmaypossess (an item) even though it was not physically on (his/her) person at the time of the arrest, if (he/she) had in fact, at some time prior to (his/her) arrest, had control and dominion over it.

Possession means a conscious, knowing possession, either actual or constructive.

[CHARGE THOSE FOLLOWING PARAGRAPHS AS APPLY TO YOUR CASE]

ACTUAL POSSESSION

A person is in actual possession of an item when (he/she) first, knows what it is: that is, (he/she) has knowledge of its character, and second, knowingly has it on (his/her) person at a given time.

CONSTRUCTIVE POSSESSION 1

Possession may be constructive instead of actual. As I just stated, a person who, with knowledge of its character, knowingly has direct physical control over an item at a given time is in actual possession of it.

InStatev.Spivey, N.J. (2004), the New Jersey Supreme Court affirmed a conviction under N.J.S.A. 2C:39-4.1(a), Possession of a Firearm While Committing Certain Drug Offenses. There, the Court noted that that statute suggests a temporal and spatial link between possession of the firearm and the drugs. The Court held: “The evidence must permit the jury to infer that the firearm was accessible for use in the commission of the [drug] crime.” In the appropriate case, therefore, the possession charge may be supplemented by this language.

POSSESSION (N.J.S.A. 2C:2-1 Page 3 of 3

Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to exercise intentional control or dominion over it. So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of that item.

JOINT POSSESSION

Possession may be sole or joint. If one person alone has actual or constructive possession of an item, possession is sole. If two or more persons share actual or constructive knowing possession of an item, possession is joint.

STATE OF NEW JERSEY v. LAMBERT A-5323-09T4 May 5, 2011

2011-08-05T13:26:00.000-07:00

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5323-09T4

STATE OF NEW JERSEY, Plaintiff-Appellant, v. ZAIRE E. LAMBERT, Defendant-Respondent.

Submitted January 25, 2011 - Decided May 5, 2011

Before Judges Wefing, Payne and Koblitz.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 09-09-3055.

Warren W. Faulk, Camden County Prosecutor,

attorney for appellant (Rachael Minardi,

Assistant Prosecutor, of counsel and on

the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent (Diane Toscano,

Assistant Deputy Public Defender, of

counsel and on the brief).

PER CURIAM

Defendant was charged with one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and one count of receiving stolen property, N.J.S.A. 2C:20-7. Defendant filed a motion to suppress the evidence seized during a search of a vehicle, and the trial court granted the motion. The State appeals, pursuant to leave granted, from the trial court's order granting that motion. After reviewing the record in light of the contentions advanced on appeal, we reverse.

One witness testified at the motion, Patrolman Al Higginbotham of the Clementon Police Department. Higginbotham was on routine patrol on the night of May 13, 2009, and shortly after 11:00 p.m. was patrolling the area around the Pine Valley Court Apartments, a multi-building complex; he was in a marked troop car, by himself. Higginbotham testified that the area was "a high crime area, [with] a lot of drugs, a lot of burglaries, had a couple of home invasions there, assaults." He himself had made a number of arrests in the area.

He noticed a car in the parking lot with its lights out in which several people were sitting. He decided to approach the car because of his knowledge of the area's reputation for narcotics trafficking. Before doing so, however, he radioed his intention to the department's central dispatch. Higginbotham stopped his patrol car behind the parked vehicle and perpendicular to it. He said he did not block the vehicle in when he parked his patrol car and that there was sufficient room for the vehicle to back up and leave if the driver had wanted to do so. While he did not formally request the assistance of back-up units, two other patrol cars, which had evidently been nearby, pulled into the lot as he was getting out of his patrol car and approaching the parked vehicle. He identified the other two officers as Patrolman Clark and Sergeant Laub. Higginbotham testified that it was a common procedure for central dispatch to notify other units in the area that an officer was going to investigate a suspicious vehicle. He said that when they arrived, they also got out of their vehicles and came toward the car. None of the three officers turned on the emergency lights in their patrol cars. He also said that while he did not remember how the two officers parked their patrol cars, he did not believe that they would have prevented the driver from moving his car from the scene if he had wanted to do so. The defense did not present any testimony that the patrol cars in any way hemmed in the other car.

Higginbotham testified that it was very dark in the parking lot and that it was not until he approached the car, that he could see that three individuals were in the car, the driver, the front-seat passenger, and the driver's-side, rear-seat passenger. The driver's-side window was partially rolled down, and as he approached the car, he could detect the odor of raw marijuana. The driver rolled down his window all the way, and the odor of marijuana became stronger. Higginbotham asked the driver why he was parked there, and the driver responded that he had been visiting his cousin and came outside to talk to his friends. Higginbotham asked the driver where was his cousin and the driver answered, "The F Building right there." He was pointing, however, to the "J" Building.

Higginbotham then asked for identification from all three men, and two were able to produce documentation; the third identified himself verbally. None of the three lived at the apartment complex. Higginbotham then called his dispatcher and asked that a warrant check be run; he learned that there was an outstanding warrant for the driver. He then asked the driver to step out of the car and spoke to him at the rear. He asked who owned the car, and the driver responded that it belonged to the front-seat passenger, defendant. Higginbotham again asked the driver where he was coming from, and this time he pointed toward the "F" Building and said he was coming from the "F" Building. When asked why, just a few minutes earlier, he had pointed to the "J" Building, he denied doing so.

Higginbotham placed the driver in one of the other patrol cars that had responded to the scene and then approached defendant, the front-seat passenger. He asked defendant if the car was his, and he responded that his mother leased it. Higginbotham again smelled the odor of raw marijuana and asked defendant and the individual in the back seat to both step out, and they did so. Higginbotham asked if he could search the car, and defendant agreed. Higginbotham gave him a form to execute, indicating his consent, and defendant signed it. Higginbotham testified that before defendant signed the form, he explained it to defendant, and explained that he did not have to agree to the search. He said that defendant's demeanor was cooperative throughout and that he signed the form willingly.

Although the consent form was admitted into evidence at the hearing, it has not been supplied to us in connection with the appeal. From testimony presented, however, the following additional facts were presented. The time noted for execution of the form was 10:30 p.m. Higginbotham testified that was clearly incorrect, that the time was 11:30 p.m. He also testified, however, that defendant inserted the time when he signed the form, not Higginbotham. In addition, execution of the form gave consent to search two vehicles, the one in which the three men had been sitting, and another, parked nearby. Higginbotham testified that defendant told him that he owned that vehicle, and thus Higginbotham included it on the form.

After obtaining defendant's consent, Higginbotham entered the car and uncovered what he termed a "chunk" of marijuana between the seat and the center console, which he estimated at less than fifty grams. With that discovery, Higginbotham called the dispatch office to see if there was a K-9 unit in the area. He learned that one was nearby and would respond to the scene. It arrived in approximately ten minutes. Higginbotham said he did not conduct any further search of the car in the interim but simply waited for the K-9 unit to arrive. Higginbotham testified that one of the reasons he waited was Sergeant Laub's uncertainty whether the executed consent form conferred permission to search the trunk. While they were waiting, Sergeant Laub contacted someone from the prosecutor's office, who advised him that it did.

When the dog did arrive, his handler first placed him in the car and then had him walk around the car. The handler told Higginbotham that the dog had reacted both to the car's console and the trunk. Higginbotham opened the console and found cash in the sum of $632, in denominations of twenty dollars and less. Higginbotham, together with Sergeant Laub, then turned to the trunk, opening it with the keys that had been in the ignition. They could see the remnants of marijuana on the driver's side panel. They looked further and came upon a loaded Taurus nine millimeter pistol in the wheel well area. They called in the weapon's serial number to dispatch and learned that it had been reported as stolen in Pennsauken. Defendant was placed under arrest. Based upon a supervisor's recommendation, Higginbotham did not search the vehicle that defendant had identified as belonging to him.

Following this testimony, the trial court granted defendant's motion to suppress. In the court's oral opinion, it made no findings with respect to Higginbotham's credibility, i.e., whether it accepted his testimony as credible or did not. In that opinion, it rejected the State's characterization of Higginbotham's initial encounter with the three occupants of the car as a field inquiry. It stressed the presence of the three patrol cars on the scene and its view that as a consequence, the driver of the car in question would not have considered himself free to leave the scene. It concluded, rather, that it was an investigatory stop, and since Higginbotham did not have reasonable and articulable suspicion to support an investigatory stop, the subsequent search, although done with consent, was invalid. Thereafter, we granted the State's motion for leave to appeal.

On appeal, the State raises the following arguments for our consideration:

POINT I: THE TRIAL COURT ERRED IN FINDING THAT OFFICER HIGGINBOTHAM DID NOT POSSESS REASONABLE AND ARTICULABLE SUSPICION TO CONDUCT AN INVESTIGATIVE STOP OF DEFENDANT.

[Raised Below.]

POINT II: THE TRIAL COURT ERRED IN FINDING THAT OFFICER HIGGINBOTHAM'S INITIAL CONTACT WITH DEFENDANT CONSTITUTED AN INVESTIGATIVE DETENTION; RATHER, THE POLICE ENCOUNTER BEGAN AS A LAWFUL FIELD INQUIRY. [Raised Below.]

We note initially the standard governing our review of this matter. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record . . . . [A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). Our review of its legal conclusions, on the other hand, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Our New Jersey Constitution provides similar protections. N.J. Const. art. I, ¶ 7. Not all encounters between a citizen and the police implicate the Fourth Amendment. For instance, police may approach a person in a public place and ask him if he is willing to answer some questions without any grounds for suspicion. State v. Rodriguez, 172 N.J. 117, 125-26 (2002). The individual has no obligation to answer and is free to move on. If, however, the individual's right to leave the scene is obstructed, even briefly, there has been a seizure of his person within the meaning of the Fourth Amendment. Id. at 126. The police "may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds or suspicion." State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.), certif. denied, 172 N.J. 178 (2002). "Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles." Ibid.

A field inquiry is "the least intrusive encounter" between a citizen and the police. State v. Pineiro, 181 N.J. 13, 20 (2004). It occurs when an officer approaches an individual and asks if he or she would be willing to answer some questions. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 510 (2003)).

An investigatory stop, on the other hand, is more intrusive and

is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of the circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[State v. Davis, 104 N.J. 490, 504 (1986).]

"A key distinction between a field inquiry and an investigative stop is whether, considering the totality of the circumstances, a reasonable person would feel that the police had encroached on his or her freedom to leave." State v. Daniels, 393 N.J. Super. 476, 484 (App. Div. 2007).

The trial court here concluded that the presence of the three police vehicles at the scene transformed this encounter from a permissible field inquiry into an investigative detention. In our view, the trial court's analysis of this question was incomplete and did not recognize the testimony of Higginbotham that it was the practice of the department to notify nearby units that an officer was approaching a car to inquire further.

What the record does indicate is that Higginbotham was by himself, patrolling a high crime area at night. The scene was dark and not well-lit. He saw a vehicle parked, with several occupants, with the engine off and no lights. In light of his knowledge of the level of criminal activity in the area, which included drugs, burglaries and assaults, it was entirely reasonable for him to stop to talk to the occupants.

We should not view the events of that night in isolation. If Higginbotham was justified in approaching the car on a field inquiry, we are unable to conclude that constitutional principles required that he do so on his own, without the protection afforded to him by the presence of other officers. We cannot turn a blind eye to the inherent dangers officers face every day. Just as we have an obligation to ensure the rights of the citizens with whom the police come in contact, we have an equal obligation not to require that the police expose themselves to avoidable risks.

The trial court, moreover, in its oral opinion, completely disregarded Higginbotham's testimony that as he approached the car, he "immediately detected an odor of raw marijuana." That additional element provided ample support for all that followed.

The order granting defendant's motion to suppress is reversed, and the matter is remanded to the trial court for further proceedings.

STATE OF NEW JERSEY VS. WILSON A-3826-09T3 07-26-11

2011-07-29T12:58:00.000-07:00

07-26-11 STATE OF NEW JERSEY VS. JOHN RAY WILSON A-3826-09T3

STATE OF NEW JERSEY VS. HEISLER A-6281-08T4 05-17-11

2011-07-13T10:22:00.000-07:00

05-17-11 STATE OF NEW JERSEY VS. JULIO HEISLER A-6281-08T4

We held that the ten-day period in which a defendant must object to the admission into evidence of a lab certificate, or else waive his right to confront the laboratory analyst, begins to run only after the State has provided "all reports relating to the analysis in question." N.J.S.A. 2C:35-19. We resolved ambiguity in the statute that requires the State to serve its notice of intent to use a lab certificate and supporting data twenty days before trial, but requires a defendant to object within ten days of receiving only the notice of intent. As the defendant's objection was timely under our statutory construction, we reversed his convictions for being under the influence of CDS, and operating a vehicle while knowingly having CDS in his possession or in the vehicle.

Victims’ Rights

2011-03-27T10:40:00.000-07:00

Victims’ Rights

In 1990 the voters approved a constitutional amendment requiring that victims of crimes be treated with fairness and respect by the criminal justice system. The amendment entitled victims to be present at public judicial proceedings when not sequestered and authorized the Legislature to define rights and remedies for victims of crimes. Thereafter, a number of laws were enacted defining victims’ rights. Legislation was enacted

Allowing crime victims to submit a written statement about the impact of the crime to the Prosecutor’s Office prior to his or her final decision to file charges. The legislation also gave victims the right to make an in-person statement directly to the sentencing Court prior to sentencing. L. 1991, c. 44; N.J.S.A. 52:4B-36, -44.

Requiring restitution to crime victims, or, in the case of a homicide, to the nearest relative of the victim, where the victim suffered a loss. N.J.S.A. 2C:43-3.

Giving victims of a crime, or a relative of a murder victim, the right to present testimony, or make a presentation, to the parole board when the offender becomes eligible for parole. L. 1992, c. 59.

Allowing victims of certain crimes to demand that the offender be tested for HIV/AIDS. N.J.S.A. 2C:43-2.2.

Requiring community notification that an inmate convicted, or adjudicated delinquent, for a sex offense is to be released from incarceration or is going to relocate into a community. N.J.S.A. 2C:7-6.

Requiring the AOC to give advance notice to prosecutors, in certain cases, regarding defendant’s appearance before a judicial officer. This legislation then requires the prosecutor to give notice to the victim. L. 1994, c. 131.

Requiring prosecutors to provide notice to victims of a defendant’s escape or release from custody via ISP, commutation or parole release. L. 1994, c. 131.

Requires the prosecutor to notify the victim whenever a defendant charged with domestic violence is released from custody. N.J.S.A. 2C:25-26.1.

Requires the court to tell the defendant the approximate term to be served in custody before parole eligibility. L. 1994, c. 157. See also R. 3:21-4j.

Allocution Hearing

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Allocution Hearing

After the defendant's guilt has been determined, or he has pled guilty, a Presentence Investigation (PSI) is ordered by the court. R. 3:21-2(a) has been interpreted as requiring that a presentence report be prepared in all indictable cases except death penalty cases. See State v. Buglione, 233 N.J. Super. 110, 113 (App. Div.), certif. den., 117 N.J. 636 (1989). See also Pressler, Rules Governing the Courts, Comment 3 to R. 3:21-2. However, where a functional equivalent of a full PSI is present in the file, the court may, on 3rd and 4th degree victimless offenses, sentence the defendant at the time of the plea when the sentencing can be expedited without jeopardizing fairness. This is known as simultaneous sentencing. Under the normal process, after the presentence report is prepared, a sentencing hearing is held. This is known as the allocution hearing, which is the court's inquiry of the defendant as to whether he or she has any legal cause to show why the sentence should not be pronounced against him or her and whether he or she would like to make a statement and present any information in mitigation of sentence. At this hearing the prosecution and defense make sentence recommendations to the court. The defendant also is allowed to make a personal plea to the court regarding the sentence. The judge then imposes the sentence and states his or her reasons for the sentence on the record.

TERMS OF IMPRISONMENT

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TERMS OF IMPRISONMENT

N.J.S.A. 2C:43-6(a)

Ordinary

N.J.S.A.2C:44-1(f)

Presumptive*

N.J.S.A.2C:43-7(a)

Extended Term Range

N.J.S.A.2C:44-1(f)

Presumptive**

1st Degree (See below Exceptions)

2nd Degree

3rd Degree

4th Degree

10-20 years

5-10 years

3-5 years

up to 18 months

15 years

7 years

4 years

9 months

20 - Life

10-20 years

5-10 years

5 years***

50 years

15 years

7 years

5 years****

Sentencing

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Sentencing

a. Overview

Sentencing in New Jersey is governed by the New Jersey Code of Criminal Justice, Title 2C. The Code of Criminal Justice defines what constitutes criminal activity and what the penalties are for violating the law. There are four degrees of crime: first degree, second degree, third degree and fourth degree. The most serious criminal activity is encompassed in the first degree category. An example of a first degree crime is armed robbery. The least serious type of criminal activity is contained in the fourth degree category. An example of this would be theft of goods valued at between $200-$500. Below these four levels of crimes there are two levels of less serious offenses, 20

which are categorized as disorderly persons, and petty disorderly persons offenses. Upon conviction of a crime of the first degree, a judge may sentence within a prescribed range of 10-20 years in state prison; for violating a second degree crime, within a range of 5-10 years in state prison; for a third degree crime, within a range of 3-5 years in state prison; and for fourth degree crime, within a range of up to 18 months. Any sentence of one year or greater is a sentence to state prison unless the county has a penitentiary or workhouse. N.J.S.A. 2C:43-10(a) and (b).

These sentencing ranges were placed in the Criminal Code to guide judges' discretion and, hopefully, avoid undue sentencing disparity. Sentencing disparity occurs when two offenders who have similar backgrounds and who committed similar offenses receive dissimilar sentences. A judge can determine the length of sentence, within the permissible range by first starting at the mid-range of the sentence range and then considering the aggravating and mitigating factors. Aggravating factors are factors that aggravate the crime or make the crime more serious while the mitigating factors are factors that mitigate the crime or make the crime less serious.

Under the Code, there is a presumption of incarceration for persons sentenced for first and second degree crimes or for persons convicted for a second time of theft of a motor vehicle or of the unlawful taking of a motor vehicle. This means that it is presumed that the judge will sentence an offender to state prison. In order to overcome this presumption, which would allow the judge to sentence the offender to probation or another non-incarcerative term, the court, having regard for the character and condition of the defendant, must find that the defendant's imprisonment would be a serious injustice which overrides the need to deter such conduct by others. N.J.S.A. 2C:44-1(d).

There is no presumption of incarceration for crimes of the third and fourth degree. This means that the judge is free to determine whether or not to sentence the offender to incarceration. However, there is a presumption against incarceration if the offender is a first offender. This presumption against incarceration does not apply to certain third or fourth degree crimes such as theft of a motor vehicle, unlawful taking of a motor vehicle, eluding, or a crime of the third or fourth degree constituting bias intimidation. N.J.S.A. 2C:44-1(e). 21

Once a judge decides to impose a prison sentence, the judge can also fix a minimum term of parole ineligibility if he or she is clearly convinced that the aggravating factors substantially outweigh the mitigating factors. These minimum terms are called discretionary minimum terms as they are solely within the discretion of the judge. A minimum parole ineligibility term is a period of time that the offender must serve in prison before becoming eligible for release on parole. A minimum parole ineligibility term can be up to one half of the maximum sentence that is imposed. N.J.S.A. 2C:43-6(b).

There are a number of statutes that require that the judge impose a mandatory minimum parole ineligibility term, meaning that the judge has no discretion whether to impose a minimum term. Some examples are persons convicted of possession of a firearm with intent to use it against the person of another or committing certain offenses while using or possessing a firearm (Graves Act), death by auto while under the influence of alcohol or drugs, sex offenses (second or subsequent offenses) and distributing drugs near or on school property (School Zone).

The Criminal Code also gives sentencing judges the discretion to extend the term of imprisonment of offenders convicted of first, second, or third degree offenses who are (1) persistent offenders, (2) professional criminals, (3) hired criminals, (4) second offenders with a firearm, (5) convicted of committing certain crimes and during the course of committing the crime used, or were in possession of a stolen motor vehicle, or (6) convicted of aggravated sexual assault, sexual assault, aggravated criminal sexual contact or criminal sexual contact involving violence and the victim was 16 years of age or younger, or (7) knowingly involved in criminal street gang activity. In most cases in order to extend the term, the prosecutor must make an application to the court and the court must hold a hearing. At the hearing, the State must prove that the defendant falls within the enhancement criteria set forth in N.J.S.A. 2C:44-3. Pursuant to Rule 3:21-4 (e), (f), the prosecutor need not file notice to seek an extended term if the extended term exposure is part of the negotiated plea agreement and is set forth on the guilty plea form.

Trial

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Trial

Once all 12 jurors and any alternates have been selected, the jury is sworn and is considered impaneled. If there are no pre-trial motions, the trial begins. The trial begins with opening statements by the prosecutor. Defense counsel may then choose to give an opening statement. After opening statements are complete, both sides present their evidence to the jury. The State presents its case first. When both sides have finished presenting their evidence, each side presents closing arguments to the jury. After closing arguments are finished, the judge charges the jury as to the applicable law. The jury then deliberates and eventually returns a verdict of guilty or not guilty. In order to return a guilty verdict the jury must be unanimous. If the jury is unable to arrive at a unanimous verdict (“hung jury”), the judge can declare a mistrial.

Right to Trial by Jury

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Trial

a. Right to Trial by Jury

If a defendant decides to contest guilt, the defendant is entitled, by both the United States and New Jersey Constitutions,3 to a trial by a jury. The right to a jury trial generally applies to all criminal acts where the penalty for the offense exceeds six months in confinement. The right to a jury trial can be waived by the defendant if the court approves. The defendant also needs the approval of the prosecutor to waive a jury trial in the sentencing phase of a capital case. If the judge grants such a request, the judge alone hears the case. See R. 1:8-1(a). This is known as a bench trial. In addition to the right to a jury trial, the defendant has the right to be present at every stage of a trial, including jury selection. See R. 3:16.

b. Selection of a Jury

In criminal cases a jury consists of 12 persons, unless the parties agree that the jury may consist of fewer than 12. One exception is a capital case where there must be 12 jurors. See R. 1:8-2. Normally, 14 persons are selected who sit and hear the case, with two designated as alternate jurors at the end of the trial. In many cases judges will empanel alternate jurors in the event that one of the twelve jurors cannot finish the trial, e.g., due to sickness. The alternate jurors are available for deliberations if one of the 12 deliberating jurors becomes ill or otherwise cannot continue to serve. Jurors are drawn from a merged list of registered voters, licensed drivers, filers of state gross income tax returns, and filers of home state rebate application forms in the county where the case will be tried. 19

The jury is selected after the judge questions prospective jurors about their backgrounds or the answers provided on the juror questionnaire. If the court allows, counsel may be permitted to personally question jurors or offer questions for the court to ask of jurors. This process is known as jury voir dire. This process seeks to determine whether jurors have a bias or prejudice which would render them unable to objectively evaluate all testimony and render a fair and impartial verdict. During this process, both the defense and the prosecution are given what are known as peremptory challenges. These challenges allow the parties to exclude prospective jurors who are being considered for selection to the jury without giving a reason for excluding them. See R. 1:8-3(d). Of course, the court will always exclude jurors for cause, such as where a juror has personal knowledge of the case.

Pre-trial Conference

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Pre-trial Conference

At the arraignment/status conference, motion dates and a date for a future status conference are set. All motions are heard prior to the last status conference. The last status conference is the

pre-trial conference. The court conducts a conference when there are no motions pending, discovery is complete, all reasonable attempts to dispose of the case prior to trial have been made and it appears that further negotiations or an additional status conference will not result in either the disposition of a case or progress towards the disposition of a case. The pre-trial conference is conducted in open court with the defendant, defense counsel and prosecutor present. At the pre-trial conference, unless objected to by a party, the judge will ask the prosecutor to describe the case. The judge then addresses the defendant and advises the defendant of the State's final plea offer and the authorized sentence for the offenses charged. The defendant is also advised of a plea cutoff, which means that ordinarily a negotiated plea will not be accepted after the conference and after a trial date has been set. The judge also advises the defendant of his or her right to trial. If the defendant wishes to proceed to trial, a 18

trial memorandum is prepared and reviewed on the record and a trial date is set. No motions are normally heard after this event and a plea cutoff is in effect. A plea cutoff means that, after the last status conference, the State's plea offer is withdrawn and the defendant must either proceed to trial or enter a plea to the indictment without a recommendation from the State. Negotiated pleas shall not be accepted absent the approval of the Criminal Presiding Judge based on a material change of circumstance, or the need to avoid a protracted trial or manifest injustice. See R. 3:9-3(g).

Motions in criminal cases

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Motions

A motion is a legal pleading which asks the court for some specific action, e.g., to suppress evidence unlawfully obtained. It is normally a document that sets forth facts and legal arguments to persuade a judge to grant the action requested. The most common type of motion is a motion to suppress evidence. Most motions are filed by defense counsel, but some, such as a motion for depositions, may be filed by the State. At the time of filing, motions are normally accompanied by an affidavit. See R. 1:6-2; 1:6-6.

For purposes of continuity this section on motions is included before the discussion on pre-trial conferences. In practice, motions should have been addressed either well before the conference, or will be addressed subsequent to this point (e.g., motion for judgment of acquittal after the jury's verdict). All motions that can be disposed of before the pre-trial conference should be in order to make the pre-trial conference a more productive event.

Arraignment/Status Conference

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Arraignment/Status Conference

The first in-Court event after indictment is the arraignment/status conference. The arraignment/status conference, which occurs within 50 days of the return of the indictment, is held in Superior Court and consists of the judge advising the defendant of the substance of the

1 Discovery is the facts and information that will be relied upon in trial and is provided to the opposing party. A copy of discovery is required to be delivered to the Criminal Division Manager's Office or available at the Prosecutor's Office, within 14 days of indictment. Defense counsel is required to obtain discovery no later than 28 days after the return or unsealing of the indictment. See R.3:9-1(a).

2 A plea bargain is an offer by the State to the defendant, which gives the defendant some consideration or benefit in return for his or her plea of guilty. Sometimes the bargain is for a plea in exchange for a reduction or dismissal of charges (charge bargain). Other times the bargain is for a plea in exchange for a recommendation of reduced sentence (sentence bargain). Still other times the bargain is for both a reduction or dismissal of charges and for a reduced sentence (charge and sentence bargain). 17

charges against him or her, as contained in the indictment, confirming that the defendant has reviewed the indictment and discovery with counsel, and asking him or her to enter a plea to the charges. If the plea is not guilty, counsel is to report to the judge on the status of plea negotiations. At the arraignment/status conference, the dates for hearing motions and a further status conference are set. See R. 3:9-1(c).

Pre-arraignment Conference

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Pre-arraignment Conference

The first post-indictment event is a pre-arraignment conference, which is conducted by the Criminal Division of the Superior Court. This conference occurs within 21 days after indictment. At this conference, defense representation is confirmed, discovery1 is available, and the uniform defendant intake form is completed. If the defendant has not previously applied for PTI, and asks to do so, an application is taken. The court can also screen for eligible Drug Court candidates. The purpose of this conference is to insure routine matters, which need not take up valuable judicial resources, are resolved prior to the arraignment/status conference. This allows the first court event, the arraignment/status conference, to be used as a tool to dispose of cases or to set firm dates for motions, future conferences and trials. The arraignment/status conference is scheduled to occur a few weeks after the pre-arraignment conference, by which time defense counsel should have reviewed discovery and discussed a negotiated plea with the state. Giving the parties time to review discovery prior to the arraignment/status conference provides a better opportunity to discuss a realistic plea bargain,2 diversion or dismissal, or, if the case is going to proceed to trial, to discuss the specific needs of the case, e.g., motions, and to set realistic dates to meet these specific case needs.

No pre-arraignment conference is required where the defendant has obtained counsel and the Criminal Division Manager's Office has established to its satisfaction that (1) an appearance

has been filed under R. 3:8-1; (2) discovery has been obtained, and (3) the defendant and counsel have obtained a date, place and time for the arraignment/status conference. See R. 3:9-1(a).

What is Indictment ?

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POST-INDICTMENT

1. Indictment

An indictment is a written statement of the essential facts constituting the crime charged. The Court Rules require that the indictment be signed by the prosecuting attorney and endorsed by the foreperson of the grand jury as a True Bill. The indictment must also state the official statutory citation for the crime charged. See R. 3:7-3. Once an indictment has been returned, it

is filed with the court, either by returning it to the assignment judge, or, with his approval, any other Superior Court judge. R. 3:6-8(a). Once returned, the assignment judge can order that the indictment be kept secret, i.e. sealed, until the defendant is arrested or the indictment is ordered unsealed by the court. When an indictment is sealed it is usually at the request of the prosecutor who may not want an on-going investigation to be compromised by public knowledge of the indictment or if there is concern that the defendant who may not have been arrested on the underlying charges may flee the jurisdiction of the court before being arrested

Grand Jury

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Grand Jury

If a complaint is not resolved pre-indictment, it is presented to a grand jury for action. The right to have charges presented to a grand jury is guaranteed by the New Jersey Constitution. See N.J. Const. art. I. 8. The function of the grand jury is to investigate criminal complaints, with the goal of either bringing charges against those responsible for criminal conduct, or refusing to bring charges where prosecution is unwarranted.

A grand jury consists of no more than 23 members, randomly selected from the general public. The assignment judge appoints one juror to be foreperson and another deputy foreperson. Each county must have a grand jury at all times. The deliberations of the grand jury are secret. An assistant prosecutor presents the State's case to the grand jury. Neither the defendant, nor his or her attorney attend grand jury proceedings unless the defendant asks to testify before the grand jury. If 12 or more members of the grand jury find that charges are warranted, the panel renders an indictment, which is called a "True Bill." If the grand jury finds charges are unwarranted, it returns a "No Bill." If a case is "No Billed," the grand jury, through the foreperson, reports this in writing to the assignment judge, who, if the defendant is in jail, will order the defendant's release unless there are other charges pending for which detention is required.

Pre-indictment Event

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Pre-indictment Event

One of the clearest messages from the experiences of speedy trial programs during the 1980s was that it is important to assess cases early. Doing so saves valuable system resources and promotes a just resolution of cases. In that vein, most counties have moved to bring the judge, attorneys and Criminal Division staff together pre-indictment. Many counties hold a formal in-court event, such as Central Judicial Processing (CJP) or Pre-indictment Program (PIP). At this event, the prosecutor screens the case to determine whether to remand the case to Municipal Court, to administratively dismiss the case or to proceed to indictment. For those cases that will proceed to indictment, the pre-indictment event is also used as a vehicle for early diversion into the Pretrial Intervention Program (PTI) or to plea to an accusation; to resolve issues regarding defense representation, e.g., indigency; to screen for eligible Drug Court candidates; and to complete the uniform defendant intake report (UDIR). Other counties hold a less formal event that is normally scheduled after the prosecutor has screened the case. Staff from the criminal division meet with the defendant and the UDIR is completed and counsel is identified, or if the defendant does not have counsel, an application for a public defender is completed and indigence is determined. The defendant is also told he or she can apply for PTI. If the defendant wishes to do so, a PTI application is taken.

First Appearance

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First Appearance

The first appearance is, generally, the first time a defendant appears before a judge. If the defendant is in custody, the first appearance is to be conducted within 72 hours, excluding holidays. If the defendant is released on bail, the first appearance is to occur without unnecessary delay. See R. 3:4-2(a). At the first appearance the judge informs the defendant

a. of the charges and furnishes a copy of the charges;

b. of the right not to make a statement as to the charge. The defendant also is

informed that any statement he or she makes may be used against him or

her;

c. of the right to counsel or, if indigent, the right to have counsel

furnished without cost. 14

If the defendant is charged with an indictable offense, the judge also informs the defendant

of the existence of the PTI program and how to apply for admission to the program;

of the right to indictment by grand jury;

of the right to a trial by jury;

of the right to have a hearing as to probable cause.

R. 3:4-3 provides that if a defendant does not waive a hearing as to probable cause, one shall be held. As a practical matter, once such a hearing is requested, an indictment normally occurs prior to the hearing thus averting the need for such a hearing.

At this first appearance, the court also reviews bail if the defendant is incarcerated. See

R. 3:4-2. The first appearance can take place in front of either a Municipal Court judge or a Superior Court judge. In some instances it occurs at a pre-indictment event such as CJP or PIP.

Released on Own Recognizance (ROR)

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Released on Own Recognizance (ROR)

When a court releases a defendant on his/her own recognizance the court does not set a bail amount. However, a recognizance must be signed by the defendant thereby acknowledging that he or she will appear in court and abide by any other conditions imposed by the court.

Additional information about bail forms, procedures and guidelines is available at the Criminal Practice Division section of the Judiciary Infonet site.

Types of Bail

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Types of Bail

When bail is set, it can be satisfied in one or more of the following ways

1. Cash Bail

The defendant or surety must deposit with the court a certain amount of money. A surety is a person, other than defendant, who is posting bail.

Full Cash

Full cash bail must be posted when a defendant is charged with certain crimes of

the first or second degree as enumerated at N.J.S.A. 2A:162-12a. and the defendant

1. has two other indictable cases pending at the time of the arrest;

2. has two prior convictions for a first or second degree crime or for

a violation of N.J.S.A. 2C:35-7 or any combination thereof; 12

3. has one prior conviction for murder, aggravated manslaughter,

aggravated sexual assault, kidnapping or bail jumping; or

4. was on parole at the time of the arrest.

Ten Percent Cash Bail

Except in first or second degree crimes as set forth in N.J.S.A. 2A:162-12 and unless the order setting bail specifies the contrary, whenever bail is set pursuant to R. 3:26-1, bail may be satisfied by the deposit in court of cash in the amount of ten percent of the bail amount, and by the defendant executing a recognizance for the remaining ninety percent. Under the Court Rules, ten percent cash bail is presumed when the judge sets an amount, unless the judge orders otherwise. See R. 3:26-4(g). When ten percent cash is deposited with the court and is owned by someone other than the defendant, the owner of the cash cannot charge a fee other than the lawful interest. See R. 3:26-4(g).

2. Corporate Surety Bonds

A corporate surety bond usually is posted by a bail agent (bondsman) who represents an insurance company that is approved by the commissioner of the Department of Banking and Insurance. The bail agent must have a power of attorney from the insurance company. The bond is a contract between the court and the insurance company whereby the insurance agency agrees to be responsible for the full amount of the bail should the defendant fail to appear in court.

3. Property Bonds

For a property bond, the defendant or a surety posts real property, (e.g., a house) to satisfy the bail amount. In order to post real property, the defendant or surety must provide the court with the following information in accordance with

N.J.S.A. 2A:162-12:

1. a legal description of the property;

2. a description of each encumbrance on the real property; 13

3. the market value of the unencumbered equity owned by the

affiant as determined in a full appraisal conducted by an appraiser

licensed by the state of New Jersey; and

4. a statement that the affiant is the sole owner of the

unencumbered equity.

If real property is going to be posted for a crime with bail restrictions as identified in N.J.S.A. 2A:162-12a, the property must be located in New Jersey with an unencumbered equity equal to the amount of the bail undertaken plus $20,000.

Review of Initial Bail Set

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Review of Initial Bail Set

1. Informal Review

Any person unable to post bail shall have his or her bail reviewed by a Superior Court judge no later than the next day, that is not a Saturday, Sunday, nor a legal holiday. See R. 3:26-22. In most counties, the Superior Court judge reviews the 11

bail shortly after the offender reaches the county jail by reviewing the complaint, usually in chambers, but in some instances with a Criminal Division probation officer or investigator who has interviewed the offender in jail. In some counties, an assistant prosecutor is present during the review. This procedure was started largely as a response to jail overcrowding and provides a quick method of reviewing bail.

2. Formal Review

The Court Rules only provide for a bail review via motion. Under R. 3:26-2(d), bail reduction motions are to be heard no later than seven days after the motion is filed. In some counties, the full seven days is required before a motion to reduce bail is heard while in others these motions are scheduled in less than seven days. However, in order to alleviate jail over crowding and reduce the volume of work created by the filing of motions, most counties do not require the filing of a motion for this review. These counties automatically schedule a review for any new defendant that remains in custody unable to post bail. However, a motion is required for any subsequent bail review requested by defense counsel.

Bail in Domestic Violence Cases

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Bail in Domestic Violence Cases

Violations of domestic violence restraining orders should be reviewed with the same severity as high impact offenses. Once a defendant has been arrested and charged with an indictable domestic violence offense, a Superior Court judge will set bail. Non-indictable N.J.S.A. 2C:29-9(b) bail matters should be handled by a Superior Court

judge, unless otherwise approved by the Assignment Judge. In domestic violence cases some special rules apply: 10

1. A judge cannot set bail without considering the defendant's prior record.

2. There is a statutory requirement that bail be set within 12 hours of arrest.

3. Once bail has been set, it may not be reduced without prior notice to the

county prosecutor and the victim.

4. Bail shall not be reduced by a judge other than the judge who originally

ordered bail, unless the reasons for the amount of the original bail are

available to the judge who reduces the bail and are set forth on the

record.

5. The victim’s address is to be kept confidential.

6. A copy of the bail order, specifying conditions of bail/release, including

restraints, must be given to the victim forthwith.

7. Bail orders on domestic violence cases must capture

a. the gender of the parties,

b. the relationship of the parties,

c. the relief sought, and

d. the nature of the relief granted.

Where relief is sought or granted, a uniform record of this information must be kept for the Administrative Office of the Courts (AOC) to file mandated periodic reports to the legislature. See P.L. 1991, c. 261 and the "Domestic Violence Procedures Manual."

f. When Bail is Set

Bail is initially set either contemporaneously with the issuance of a warrant, subsequent to the issuance of a warrant but prior to the first appearance, or at the first appearance. However, if bail was not set when an arrest warrant was issued, the person who is arrested on that warrant shall have bail set without unnecessary delay, and no later than 12 hours after arrest

Purpose of Bail

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Purpose of Bail

The purpose of bail is to ensure that a defendant appears for all court events, both pre-trial and trial. Its purpose is not to punish nor is it to detain a person pre-trial to assure he doesn't commit another crime (preventative detention). State v. Johnson, 61 N.J. 351, 364 (1972); State v. Fann, 239 N.J. Super. 507 (Law Div. 1990). Additionally, the Court has said that the constitutional right to bail must not be unduly burdened, i.e., that excessive bail should not be utilized as a means of confining the accused until trial. State v. Johnson, supra, 61 N.J. at, 364-365.

c. Authority to Set Bail

A Superior Court judge may set bail for a person charged with any offense. Bail for any offense except murder, kidnapping, manslaughter, aggravated manslaughter, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, a person arrested in any extradition proceeding or a person arrested under N.J.S.A. 2C:29-9b for violating a restraining order may be set by any other judge, or in the absence of a judge, by a Municipal Court administrator or deputy court administrator. In most cases, bail is set initially in Municipal Court by a Municipal Court judge. See R. 3:26-2(2). 9

d. Factors to Consider when Setting Bail in a non-capital case.

In State v. Johnson, supra, 61 N.J. at 364-365 the Court identified a number of factors that must be considered in fixing bail

1. The seriousness of the crime charged against the defendant, the apparent

likelihood of conviction, and the extent of the punishment prescribed by

the legislature.

2. The defendant's criminal record, if any, and previous record on bail, if

any.

3. The defendant’s reputation and mental condition.

4. The length of the defendant’s residence in the community.

5. The defendant’s family ties and relationships.

6. The defendant’s employment status, record of employment, and financial condition.

7. The identity of responsible members of the community who would vouch for the defendant's reliability.

8. Any other factors indicating defendant's mode of life, or ties to the

community, or bearing on the risk of failure to appear.

See also R. 3:26-1, which lists background, residence, employment, family status, the general policy against unnecessary sureties and detention as factors to consider when setting bail. R. 3:26-1 also allows the court to R.O.R. defendants and impose terms or conditions necessary to protect persons in the community.

Right to Bail

2011-03-26T17:14:00.003-07:00

Bail

Bail is the money or property deposited with the court to secure the release of a person held in custody awaiting the resolution of charges against him or her.

a. Right to Bail

The right to bail, except in capital cases, is guaranteed by the New Jersey Constitution and is provided for in the Court Rules. See R. 3:26-1(a). The New Jersey Constitution, Article I, paragraph 11, provides that

All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.

Paragraph 12 further provides that

excessive bail shall not be required . . .

The Court, in interpreting this right, has said that the right to bail means that

the accused has the right to pre-trial liberty on such bond and in such amount as in the judgment of the trial court under the circumstances of the case will assure his appearance at the trial. State v. Johnson, 61 N.J. 351, 359-360 (1972). 8

However, the Court has recognized that bail may not always be possible. In Johnson, the Court also said

if, however, the court is satisfied from the evidence presented on the application for bail that regardless of the amount of bail fixed, the accused if released will probably flee to avoid trial, bail may be denied. Id. at 360.

Note also that a person may be denied bail in a capital case where the prosecutor presents proof that there is a likelihood of conviction and reasonable grounds to believe that the death penalty may be imposed. See R. 3:26-1(a).

Indictable Complaints

2011-03-26T17:14:00.001-07:00

Indictable Complaints

Where the complaint alleges an indictable offense, the complaint, and all investigative reports, are required to be forwarded to the prosecutor within 48 hours. The Municipal Court is to forward the complaint to the Criminal Division Manager's Office within 48 hours. See R. 3:2-1(b)

Summons

2011-03-26T17:05:00.001-07:00

Summons

A summons is the process by which a defendant is ordered to appear before the Court on a certain date. If a summons is used, a Court Disposition Report – 1 (CDR -1) is filled out and a copy is handed to the defendant, who is then released. These reports are forwarded to the State Police and are used to create an offender's computerized criminal history (CCH) commonly referred to as a rap sheet.

b. Arrest Pursuant to a Warrant

An arrest warrant is a document that orders the police to arrest a defendant and bring him before the court issuing the warrant. If an arrest warrant is used, a CDR-2 is filled out and bail is set. If bail is posted the defendant is set free. If bail is not posted, the defendant is detained pending a first appearance, which is normally held in Municipal Court. However, in some counties first appearances are centralized before the presiding judge of the Municipal Courts or a Superior Court judge.

c. Arrest without a Warrant

In many instances, the criminal process actually begins with an arrest by a police officer where no formal papers, i.e. complaint, have been filed with the court. Where this occurs, the accused is arrested, brought to police headquarters where a complaint is prepared. The matter is then brought before a judicial officer, who determines whether there is probable cause that an offense has been committed by the accused and determines whether a summons or warrant will be issued. See R. 3:4-1. If the judicial officer issues a summons, the defendant is given the complaint-summons (CDR-1) and told to appear at a later date. If the judicial officer issues a complaint-warrant (CDR-2), the defendant is remanded to jail unless bail is posted. Simultaneous with making of the probable cause determination, the judicial officer should also set bail, or the conditions under which the defendant may be released from jail pre-trial, such as Released on 7

his/her own Recognizance (R.O.R.), no contact with victim, or cash bail. The present Court Rules allow for the setting of bail by a Municipal Court administrator or deputy court administrator in the absence of a judge at the judge's discretion. There is also statutory authority for this responsibility. See N.J.S.A. 2B:12-21c.

Summons or Warrant upon Complaint

2011-03-26T16:46:00.001-07:00

Summons or Warrant upon Complaint

The procedure after a complaint is made depends on who is making the complaint and/or whether a complaint-summons or complaint-warrant is being sought. If a private citizen is making the complaint, or a law enforcement officer is seeking an arrest warrant once a complaint is filed, a judicial officer (judge, municipal court administrator or deputy court administrator) makes a determination of whether there is probable cause to believe an offense has been committed and that the defendant may have committed it. If a judge reviews a complaint and does not find probable cause, the complaint is dismissed. If a judicial official other than a judge finds no probable cause, then the procedure contained in R. 3:3-1(d) is utilized to dismiss the complaint. If probable cause is found, a judicial officer must determine whether a summons or warrant should be issued. A summons will be issued unless a judicial officer finds that one of the conditions set forth in R. 3:3-1(c) exists. The conditions for issuing a warrant are: (1) the accused is charged with a serious crime; (2) the accused has previously failed to respond to a summons; (3) the accused is dangerous to self, other persons, or property; (4) there is an outstanding warrant against the accused; (5) the identity or address of the 6

accused is unknown or (6) there is reason to believe the accused will not respond to a summons. If one or more of these conditions exist, the judicial officer must issue a warrant, as opposed to a summons.

If the law enforcement officer decides to issue a summons, that officer may do so without a prior determination of probable cause.

PRE-INDICTMENT

2011-03-26T16:45:00.000-07:00

PRE-INDICTMENT

The pre-indictment phase of criminal case processing encompasses all actions taken in relation to the case from the filing of the initial charges through presentation of the case to a grand jury.

1. Complaint

The criminal process normally begins with the filing of a complaint in Municipal Court. The process can also begin with an arrest without a warrant or by the return of an indictment. The complaint is a written statement accusing a specific person of committing an offense and citing the essential facts constituting the offense. Complaints are normally made by police officers, but all citizens have the right to lodge complaints. The Court Rules require that the court clerk or deputy clerk, Municipal Court administrator or deputy court administrator accept for filing complaints made by any person. See R. 3:2-1(a). The Rules require that the complaint be made upon oath or by certification before a judge or other person, e.g. Municipal Court administrator, authorized by N.J.S.A. 2B:12-21 to take complaints.

New Jersey Judiciary, Adult Drug Court Programs Administrative Office of the Courts Criminal Practice Division

2011-03-26T16:39:00.001-07:00

New Jersey Judiciary, Adult Drug Court Programs Administrative Office of the Courts Criminal Practice Division Joseph J. Barraco, Esq. Assistant Director Carol Venditto, Manager-Drug Court Unit Tel# 609-292-3488 Fax# 609-292-9659 Email: carol.venditto@judiciary.state.nj.us Maurice Hart Jayne Cavanaugh, LCADC Statewide Drug Court Coordinator Statewide TASC Coordinator Tel# 609-633-2101 Tel# 609-984-3834 maurice.hart@judiciary.state.nj.us jayne.cavanaugh@judiciary.state.nj.us Criminal Practice Division, Drug Court Unit Hughes Justice Complex, 7North - PO Box 982 Trenton, NJ 08625-0982 Atlantic County Drug Court Atlantic/Cape May Criminal Drug Court Courthouse 4997 Unami Blvd. 2nd floor Mays Landing, NJ 08330 Drug Court Judge: Michael Connor, J.S.C. Tel# 609-909-8135 Fax# 609-909-8246 DC Coordinator: Celeste Goodson Tel# 609-909-8113 Fax# 609-909-8246 celeste.goodson@judiciary.state.nj.us Bergen County Drug Court Bergen County Courthouse 10 Main Street Room 150 Hackensack, NJ 07601 Drug Court Judge: Lois Lipton, J.S.C. Tel# 201-527-2465 Fax# 201-371-1107 DC Coordinator: Barbara Morgan Tel# 201-527-2405 Fax# 201-371-1123 barbara.morgan@judiciary.state.nj.us Burlington County Drug Court Burlington County Criminal Drug Court 50 Rancocas Road, 3rd Floor Mount Holly, NJ 08060 Drug Court Judge: James W. Palmer, Jr., J.S.C. Tel# 609-518-2855 Fax# 609-518-2948 DC Coordinator: Michelle Consuegra Tel# 609-518-2559 Fax# 609-518-2639 michelle.consuegra@judiciary.state.nj.us Camden County Drug Court Camden County Criminal Division 101 South Fifth Street Camden, NJ 08103 Drug Court Judge: Thomas A. Brown, J.SC. Tel# 856-379-2357 Fax# 856-379-2220 DC Coordinator: Scott Decicco Tel# 856-379-2200x 3358 Fax# 856-379-2288 scott.decicco@judiciary.state.nj.us NJAdultDrugCourtPrograms-contacts 9/27/10

Cumberland/Gloucester/Salem Drug Court

Gloucester County Criminal Division

Criminal Justice Complex, lst Floor

Hunter and Euclid Streets

Woodbury, NJ 08096

Drug Court Judge: Jean McMaster, J.S.C.

Tel# 856-853-3501 Fax# 856-853-3786

DC Coordinator: Donald Van Dunk

Tel# 856-853-3753 Fax# 856-853-3759

donald.vandunk@judiciary.state.nj.us

Essex County Drug Court

Essex County New Courts Building

50 West Market Street, Rm 912

Newark, NJ 07102

Drug Court Judge: Ramona A. Santiago, J.S.C

Tel# 973-693-6504 Fax# 973-424-2435

DC Coordinator: T.B.A.

Tel# 973-693-6598 Fax# 973-693-5974

colin.lochner@judiciary.state.nj.us

Hudson County Drug Court

Hudson County Administration Building

595 Newark Ave.

Jersey City, NJ 07306

Drug Court Judge: Sheila Venable, PJ.Cr.

Tel# 201-795-6668 Fax# 201-795-6364

DC Coordinator: Patricia DellOsso

Tel# 201-795-6882 Fax# 201-217-5334

patricia.dellosso@judiciary.state.nj.us

Mercer County Drug Court

Mercer County Courthouse

209 South Broad & Market Streets

P O Box 8068

Trenton, NJ 08650

Drug Court Judge: Gerald Council, PJ, Cr.

Tel# 609-571-4130 Fax# 609-571-4131

DC Coordinator: Anastasia Jackson

Tel# 609- 571-4067 Fax# 609-571-4049

anastasia.jackson@judiciary.state.nj.us

Middlesex County Drug Court

Middlesex County Courthouse

1 John F. Kennedy Square

New Brunswick, NJ 08903

Drug Court Judge: Lorraine Pullen, J.S.C.

Tel# 732-519-3825 Fax# 732- 519-3828

DC Coordinator: Tammy D’Aloia

Tel# 732-565-5057 Fax# 732-565-5031

tammy.d’aloia@judiciary.state.nj.us

Monmouth County Drug Court

Monmouth County Courthouse

71 Monument Park

P O Box 1266

Freehold, NJ 07728-1266

Drug Court Judge: Thomas Scully, PJ.Cr.

Tel# 732-677-4168 Fax# 732-677-4198

DC Coordinator: Adri Lieb

Tel# 732-677-4551 Fax# 732-677-4347

adri.lieb@judiciary.state.nj.us

Middlesex County Drug Court Team List

2011-03-26T16:37:00.000-07:00

Middlesex County Drug Court Team List

COURTHOUSE Fax: 732-519-3828
DRUG COURT JUDGE	Hon. Lorraine Pullen, JSC Lorraine.pullen@judiciary.state.nj.us	732-519-3826
JUDICIAL SECRETARY	Linda Cusumano Linda.cusumano@judiciary.state.nj.us	732-519-3826
CRIMINAL CASE MANAGEMENT Fax: 732-565-5031
DRUG COURT TEAM LEADER	Mark Billon Mark.billon@judiciary.state.nj.us	732-565-5056
DRUG COURT COORDINATOR	Tammy D’Aloia Tammy.daloia@judiciary.state.nj.us	732-565-5057
SUBSTANCE ABUSE EVALUATOR	Tatyana Vaynshteyn Tatyana.vaynshteyn@judiciary.state.nj.us	732-565-5058
SUBSTANCE ABUSE EVALUATOR	Mark Warner Mark.warner@judiciary.state.nj.us	732-565-5064
DRUG COURT CLERK	Donna Roche Donna.roche@judiciary.state.nj.us	732-565-5059
PROSECUTOR'S OFFICE Fax: 732-745-2324
ASSISTANT PROSECUTOR	Caroline Meuly, Esq. Caroline.meuly@co.middlesex.nj.us	732-745-4251
DRUG COURT ADMINISTRATIVE ASST	Deborah Farlow Deborah.farlow@co.middlesex.nj.us	732-745-4580
PUBLIC DEFENDER'S OFFICE Fax: 732-937-4556
ASST. DEPUTY PUBLIC DEFENDER	Melissa Karabulut, Esq. Melissa.Karabulut@opd.state.nj.us	732-937-6400
ASST. DEPUTY PUBLIC DEFENDER	Ken Goodman, Esq. Kengoodman@aol.com	732-993-5440
SECRETARY	Annette Grier Annette.Grier@opd.state.nj.us	732-937-6400
PROBATION DIVISION Fax: 732-448-6201
PROBATION SUPERVISOR	Lamont Bowling Lamont.bowling@judiciary.state.nj.us	732-448-6119 Cell: 732-841-1103
MASTER PROBATION OFFICER	Dean Smith Dean.smith@judiciary.state.nj.us	732-448-6168 Cell: 732-841-1113
SENIOR PROBATION OFFICER	Tara Jones Tara.jones@judiciary.state.nj.us	732-448-6151 Cell: 732-841-1080
PROBATION OFFICER	Susan Smith Susan.smith@judiciary.state.nj.us	732-448-6178 Cell: 732-735-9410
PROBATION OFFICER	Shawna Hooper Shawna.hooper@judiciary.state.nj.us	732-448-6147 Cell:732-841-3794
PROBATION OFFICER	Boris Chavez Boris.chavez@judiciary.state.nj.us	732-448-6149 Cell: 732-887-7694
PROBATION MAIN NUMBER	Receptionist	732-448-6101

VOLUNTEER LEGAL INTERNS NEEDED- PUBLIC DEFENDER OF METUCHEN

2010-12-27T14:25:00.000-08:00

VOLUNTEER LEGAL INTERNS NEEDED- PUBLIC DEFENDER OF METUCHEN

The Public Defenders provide Indigent individuals charged with criminal or serious motor vehicle charges with free or limited cost legal defense. The Public Defender of Metuchen welcomes persons to serve as volunteer interns. Volunteer Law Clerk interns will attend Wednesday evening and every other Friday morning court sessions.

Volunteer to help indigent people charged with criminal and motor vehicle offenses of magnitude. In additional to time in court, you will be given projects to provide information to the public on updated criminal laws and statutes. Help people less fortunate than you who are down on their luck. This is an unpaid internship helping indigent persons.

Court times: WEDNESDAY 1pm PM [approx]- 8:30 PM, every other Friday 9-12, plus hearing preparation work.

Volunteer Internship Description:

-Interview Clients facing charges in Municipal Court including Drug Possession, Drunk Driving, Assault, Driving While Suspended and other criminal and traffic offenses

-Make demands for Discovery on Prosecutor and review police reports

-Attend hearings and learn from experienced trial attorneys

-Prepare Motions to Suppress Evidence and Motions to Compel Discovery

-Conduct appropriate Legal research

-Acquire skills in Criminal Law and Procedure by active participation

-Participate in Public Relations activities and help organize seminars

- Update Lists of Prosecutors, Judges and Attorneys for publication of

NJ Municipal Court Law Review

- Revise criminal and traffic law Articles and submit to Law Journals and criminal law websites.

- Learn how to add criminal statutes and criminal articles to legal blogs and websites. http://criminal-jury.blogspot.com/

Program lasts 12 weeks. Minimum time commitment September- May is 10 hours per week. Must be over 18 years old and have a car. You can work more hours if you want and more than 12 weeks.

For Summer- College graduates and Law students only. Minimum Volunteer time commitment in summer- 18 hours per week. Send cover letter and resume. After sending resume, call to schedule interview

We are committed to excellence and service to clients and the community. Applicants must have attention to detail. We attempt to give assignments which will be meaningful and memorable but, nevertheless, expect that the volunteers will pitch in on whatever needs to be done.

Interested persons must mail or fax a cover letter indicating the internship they are applying for and resume. If no personal cover letter by student, the resume will not be considered.

PUBLIC DEFENDER OF METUCHEN

Att: Kenneth Vercammen, Esq.

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

Municipal Court College Seminar December 6, 201

2010-11-04T18:42:00.000-07:00

Municipal Court College Seminar

December 6, 2010 Monday

5:30 PM to 9:00 PM

New Jersey Law Center, New Brunswick

A guide to handling municipal court matters in your practice.

This information-packed program is designed for attorneys who do not concentrate in municipal court law, including general practitioners seeking to expand into this practice area & not, novice attorneys looking to create a niche practice. Seasoned municipal court lawyers are certainly more than welcome to join us and brush up on their skills.

You’ll “go back to school” to attend 6 half hour segments and panel discussions that will provide you with a working knowledge of municipal court law basics. You’ll quickly be able to represent clients in a wide range of matters you would normally have had to refer to others. Gain confidence in your ability to handle municipal court law matters. Make an investment in your legal career and register today!

Gain insight and information that will help you represent clients in every aspect of municipal court law, including: • Initial interview getting retained and dealing with the prosecutor • Driving while suspended • Drug cases and DRE • Assault and miscellaneous • DWI - Blood • DWI – Alcotest

KENNETH A. VERCAMMEN, ESQ.

Past Chair, NJSBA Municipal Court Section

Past GP Solo Section Attorney of the Year

2006 NJSBA Municipal Court Practitioner of the Year

K. Vercammen & Associates (Edison)

JOHN E. HOGAN, ESQ.

Wilentz Goldman & Spitzer, PA (Woodbridge)

JOHN MENZEL, ESQ.

Law Offices of John Menzel (Point Pleasant)

NORMA M. MURGADO, ESQ.

Chief Prosecutor (Elizabeth)

Assistant Prosecutor (Woodbridge)

Murgado & Carroll, Esq. (Elizabeth)

STEPHEN D. WILLIAMS, ESQ.

Law Offices of Stephen D. Williams (Flemington)

Who should attend: • Judges & Prosecutors • General practitioners • Criminal law practitioners • Municipal Court law practitioners • Litigators • New attorneys • Members of law enforcement

New Jersey Institute for Continuing Legal Education  The non-profit continuing education service of:  The New Jersey State Bar Association Rutgers - The State University of New Jerseys Seton Hall University  One Constitution Square, New Brunswick, New Jersey 08901-1520  Phone: (732)214-8500 • Fax: (732)249-0383 • CustomerService@njicle.com

NJ CLE INFORMATION: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 3.5 hours of total CLE credit. Of these, 3.5 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers’ compensation law and/or matrimonial law.

Includes seminar, 400 page book, CD with over 1,000 pages of forms, dinner, coffee, desert Tuition ranges between $145- $189 depending on NJSBA membership Call Phone: (732)214-8500 Seminar # S962-21594

Tuition fees	Reg. Fee
General Tuition (REG)	$189.00
NJICLE Season Tickets (STX)	1 Season Ticket(s)
MEMBERS, NJSBA (NJB)	$155.00
MEMBERS, NJSBA YLD (YLD)	$145.00
Recent admittees (past 2 years) (YL)	$165.00
Paralegals (PAR)	$129.00
Law Students (with Student ID) (STU)	$0.00
Full Time Judges (JUD)	$0.00

This program has been approved for 3.5 credits (50 minute hour)

DOOR REGISTRATIONS: $209

Advance registration closes at noon of the day preceding the program. After that time you may still register, space permitting, for the Door Registration Fee.

CAN'T ATTEND?

2010 MUNICIPAL COURT COLLEGE

Up to 12 of your 24 New Jersey MCLE credits can be earned via Audio CDs, Webinars & MP3s.

Order your audio package and earn New Jersey MCLE credits at your convenience.

http://KennethVercammen.com/MUNICIPAL.COURT.COLLEGE.html

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

STATE OF NEW JERSEY V. ALNESHA MINITEE AND DARNELL BLAND A-5002-06T4/A-6213-06T4

2010-08-18T12:49:00.000-07:00

STATE OF NEW JERSEY V. ALNESHA MINITEE AND
STATE OF NEW JERSEY V. DARNELL BLAND A-5002-06T4/A-6213-06T4 (consolidated)08-16-10

In these back-to-back appeals concerning the warrantless
search of a motor vehicle, we harmonize the seemingly
inconsistent holdings in State v. Martin, 87 N.J. 561 (1981) and
State v. Pena-Flores, 198 N.J. 6 (2009), by finding that the
exigent circumstances that existed at the scene only permitted
the police to seize the vehicle. Under our State's
Constitution, once impounded, the police were required to obtain
a warrant before searching the vehicle.

State v. Wendell Mann (A-56-09)

2010-08-18T12:40:00.001-07:00

State v. Wendell Mann (A-56-09)8-4-10

The trial court fairly concluded that the police had
reasonable and articulable suspicion to support an
investigatory stop of defendant and that the seizure
of drugs from both locations was lawful.

State in the Interest of A.S. (A-58/59-09)

2010-08-04T11:39:00.000-07:00

State in the Interest of A.S. (A-58/59-09) 7-29-10

Upon consideration of the totality of the
circumstances, A.S.’s confession was not knowingly,
intelligently, and voluntarily given. In addition,
the confession by far was the most damning piece of
evidence against A.S. and thus the court cannot say
that there was no reasonable possibility that its
introduction into evidence contributed to the
delinquency adjudication, and so, in the particular
circumstances presented in this case, the Court is
constrained to reverse A.S.’s conviction and remand
for new proceedings.

State v. Richard Clarke (A-11-09) State v. William T. Dolan (A-12-09

2010-07-28T10:24:00.000-07:00

State v. Richard Clarke (A-11-09) State v. William T. Dolan (A-12-09)7-21-10

An informal hearing is sufficient for the Drug Court to give full and fair consideration to a defendant’s application for admission into the Drug Court program. However, because it is not clear whether the trial court applied the correct legal standard for admission under the “second track” of the requirements, each case is remanded for further proceedings.

State v. Eugene Basil (A-34-09)

2010-07-21T14:08:00.000-07:00

State v. Eugene Basil (A-34-09) 7-20-10

The on-scene identification by a citizen informant and
corroborative discovery of the weapon gave officers
probable cause to arrest defendant and, therefore,
defendant’s volunteered statement to police should not
have been suppressed as the product of an unlawful
arrest. In addition, the members of the Court being
equally divided, the judgment of the Appellate
Division is affirmed, holding that the non-appearing
witness’s testimonial hearsay statement was
inadmissible under the Sixth Amendment Confrontation
Clause. The admission of the statement had the clear
capacity to cause an unjust result and was not
harmless error beyond a reasonable doubt

State v. Alice O’Donnell (A-54-09)

2010-07-21T14:07:00.001-07:00

State v. Alice O’Donnell (A-54-09) 7-20-10

The judgment of the Appellate Division, which upheld
the trial court’s denial of defendant Alice
O’Donnell’s motion to suppress evidence, is affirmed
substantially for the reasons expressed in Judge
Skillman’s opinion.

State v. Alice O’Donnell (A-54-09)

2010-07-21T14:07:00.000-07:00

State v. German Marquez (A-35-09)

2010-07-21T13:54:00.001-07:00

State v. German Marquez (A-35-09)
7-12-10 S

In this case involving a conviction for refusing to
submit to a chemical breath test, the Court holds that
New Jersey’s implied consent law, N.J.S.A. 39:4-50.2,
and refusal law, N.J.S.A. 39:4-50.4a, require proof
that an officer requested the motorist to submit to a
chemical breath test and informed the person of the
consequences of refusing to do so. The statement used
to explain to motorists the consequences of refusal
must be given in a language the person speaks or
understands. Because defendant German Marquez was State v. German Marquez (A-35-09)

In this case involving a conviction for refusing to
submit to a chemical breath test, the Court holds that
New Jersey’s implied consent law, N.J.S.A. 39:4-50.2,
and refusal law, N.J.S.A. 39:4-50.4a, require proof
that an officer requested the motorist to submit to a
chemical breath test and informed the person of the
consequences of refusing to do so. The statement used
to explain to motorists the consequences of refusal
must be given in a language the person speaks or
understands. Because defendant German Marquez was
advised of these consequences in English, and there is
no dispute that he did not understand English, his refusal conviction is reversed.

STATE OF NEW JERSEY V. TAMESHA CAMPBELL A-1866-09T4

2010-07-21T13:27:00.000-07:00

07-09-10 STATE OF NEW JERSEY V. TAMESHA CAMPBELL A-1866-09T4

We reverse an interlocutory order denying a motion for a
jury trial after a mistrial holding that the declaration of
mistrial nullified defendant's prior waiver of her Sixth
Amendment right to trial by jury.

STATE VS. ENDER F. POMPA (A-0139-08T4 )

2010-07-07T08:47:00.000-07:00

STATE OF NEW JERSEY VS. ENDER F. POMPA A-0139-08T4 7-2-10

Following his conviction of various drug offenses,
defendant appealed the denial of his motion to suppress in
excess of thirty pounds of marijuana seized by police without a
warrant from a closet in the sleeper cabin of defendant's
tractor trailer. The court held that the closely regulated
business exception permitted a warrantless administrative
inspection of certain areas of the tractor trailer, but
concluded that the search turned unlawful when it progressed
into unregulated areas without the exigent circumstances
required by State v. Pena-Flores, 198 N.J. 6, 28 (2009).

Kenneth Vercammen Law Office 25th Anniversary Party Friday, July 30, 2010

2010-07-04T07:57:00.001-07:00

Kenneth Vercammen Law Office
25th Anniversary Party
Friday, July 30, 2010

"Celebrating 25 years of providing excellent service to clients and the community"
1985-2010
Happy Hour, Open House, Client & Community Appreciation Social. Open to the public 4-7 PM

Food, Refreshments, T- shirts and special gifts

The Law office is located at 2053 Woodbridge Avenue, Edison, NJ 08817 near the Nixon Post Office, approximately 1/2 mile from Route 1/ Wick Plaza, and 1 mile from Middlesex County College. There is 50 parking spaces nearby on Russell Ave. and Lillian St. around the corner from Kim’s Kafe, on Woodbridge Ave. near the Green Derby Tavern, and across the street on School House Lane.
Visit our website at www.njlaws.com for Directions and other details or call and we will fax directions or email at KenV@njlaws.com

Kenneth Vercammen, Esq. at (732) 572-0500(Law office)
Fax form to 732-572-0030 or email
kenvnjlaws@verizon.net

-Yes, We will be attending the party

Name: _____________________________
email: _____________________________
http://www.kennethvercammen.com/25th.party.html

State v. Tysen R. Privott (A-7-09)

2010-06-30T06:24:00.001-07:00

State v. Tysen R. Privott (A-7-09) 6-29-10

Based on the totality of the circumstances, there were
specific and particularized reasons for the officer to
conduct an investigatory stop and to frisk defendant
Tysen R. Privott. However, the officer’s conduct in
lifting defendant’s shirt exceeded the scope of a
reasonable intrusion that is permitted as part of a
Terry stop.

State v. Pablo Carvajal (A-5-09)

2010-06-02T07:42:00.000-07:00

State v. Pablo Carvajal (A-5-09) 6-2-10

The State satisfied its burden of proving by a
preponderance of the evidence that the duffel bag was
abandoned. Carvajal denied having any ownership or
possessory interest in the bag, and the police
attempted to identify other potential owners.
Carvajal therefore had no standing to challenge the
warrantless search of the bag.

STATE v. RILEY JEFFERSON (A-1945-06T4)

2010-05-26T12:35:00.000-07:00

STATE v. RILEY JEFFERSON a/k/a SYNCERE RILEY JEFFERSON (A-1945-06T4) 5-21-10

(1) In the absence of a warrant or a recognized exception
from the Fourth Amendment's warrant requirement, the police
could not lawfully enter defendant's home to conduct a Terrytype
detention and investigation of defendant.
(2) A police officer's wedging herself in the doorway to
prevent defendant from closing his front door was entry into the
home.
(3) The police failed to show either "hot pursuit" exigent
circumstances or a community caretaking exception from the
warrant requirement.
(4) Although the police entry was unlawful, defendant had
no right to resist physically, and the search of his person
incident to arrest was lawful.
(5) Consent to search defendant's apartment, given by
defendant's wife, was tainted by the unconstitutional police
conduct and was not shown to be voluntary.

STATE OF NEW JERSEY V. ORION T. BRABHAM A-3571-07T4 4-30-10

2010-05-26T12:32:00.000-07:00

STATE OF NEW JERSEY V. ORION T. BRABHAM A-3571-07T4 4-30-10

Defendant primarily objects to the denial of his motion to
suppress statements he made to New Jersey law enforcement
officers after he was incarcerated for a parole violation in New
York. Accepting the judge's factual findings, we conclude that
the statements, which the judge found were made during a meeting
defendant requested to negotiate a plea, should have been
excluded pursuant to N.J.R.E. 410.

STATE OF NEW JERSEY v. GERMAINE A. HANDY A-1838-07T4

2010-05-26T12:28:00.000-07:00

STATE OF NEW JERSEY v. GERMAINE A. HANDY A-1838-07T4 4-12-10

This appeal required us to determine whether evidence found
during the search incident to defendant's arrest should have
been suppressed because the dispatcher who incorrectly informed
the arresting officer that there was an outstanding arrest
warrant acted unreasonably under the circumstances, even though
the conduct of the arresting officer himself was reasonable.
The warrant at issue, which was ten years old at the time, had
the same birth month, but a different birth day and year. The
first name on the warrant was a variant spelling of defendant’s
first name. We concluded that suppression is required and,
consequently, reversed the convictio

State v. Danny Mai (A-98-09) 5-6-10

2010-05-26T12:25:00.000-07:00

State v. Danny Mai (A-98-09) 5-6-10

The officers presented sufficient facts in the
totality of the circumstances that would create in a
police officer a heightened awareness of danger that
would warrant an objectively reasonable officer in
securing the scene in a more effective manner by
ordering the passenger to exit the car. Those same
circumstances authorize a police officer to open a
vehicle door as part of ordering a passenger to exit.
Thus, the seizure of the weapon was proper under the
plain view doctrine, and the seizure of the holster
and loaded magazine from the passenger was lawful as
the fruits of a proper search incident to an arrest.

State of New Jersey v. J.G. (A-44-08)

2010-05-26T12:16:00.000-07:00

State of New Jersey v. J.G. (A-44-08) 4-7-10

The cleric-penitent privilege applies when, under the
totality of the circumstances, an objectively
reasonable penitent would believe that a communication
was secret, that is, made in confidence to a cleric in
the cleric’s professional character or role as a
spiritual advisor.

US Supreme Court Cases dealing with criminal law and procedure

2010-05-23T17:57:00.001-07:00

US Supreme Court Cases dealing with criminal law and procedure
By Kenneth Vercammen Past Vice Chair ABA Criminal Law Committee General Practice, Solo and Small Firm Division

1. No specific words required for Miranda warnings Florida v. Powell 175 L.Ed 1009 __ S. Ct. ___ (Dec. 7, 2009)
 In a state prosecution for possession of a weapon by a convicted felon, a reversal of defendant's conviction on Miranda grounds is reversed where the police satisfied Miranda's requirements by informing defendant that he had "the right to talk to a lawyer before answering any of their questions," and that he had "the right to use any of his rights at any time he wanted during the interview.
Advice that a suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,” and that he can invoke this right “at any time . . . during the interview,” satisfies Miranda.

2 US Supreme Court Rules Lab Report Not Admissible in Criminal Case. Melendez-Diaz v. Mass 129 S.Ct. 2527 (2009)
Defendant's drug conviction is reversed, where the trial court's admission of the prosecution's certificates by laboratory analysts, stating that material seized by police and connected to Defendant was cocaine of a certain quantity, violated petitioner's Sixth Amendment right to confront the witnesses against him.
3 Police May Interrogate Even if Public Defender Assigned. Montejo v. Louisiana 129 S. Ct. 2079 (2009)

Michigan v. Jackson, which forbids police from initiating interrogation of a criminal defendant once he has invoked his right to counsel at an arraignment or similar proceeding, is overturned. Source: New Jersey Law Journal June 1, 2009

4. School Officials Cannot Search Child’s Underwear for Drugs. Safford Unified School. Dist. No. 1. v. Redding 129 S.Ct. 2633 (2009)

In a 42 U.S.C. section 1983 action alleging an unlawful search of a student, the denial of summary judgment based on qualified immunity is affirmed where the search of Plaintiff's underwear violated the Fourth Amendment because the facts did not give school officials reasonable suspicion to search her underwear.

5.  US v. Stevens, No. 08–769  U.S. Supreme Court, April 20, 2010 The Third Circuit's reversal of defendant's conviction under 18 U.S.C. section 48 for selling videos depicting dog fighting is affirmed where section 48 was substantially overbroad, and therefore invalid under the First Amendment, because section 48 explicitly regulated expression based on content and was thus presumptively invalid

5. Padilla v Kentucky ___ S. Ct. _____ No. 08–651. Argued October 13, 2009 —Decided March 31, 2010
Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to drug-distribution charges in Kentucky. In post conviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice The US Supreme Court held Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient

6. Police can Enter Home Under Emergency Aid Exception Michigan v. Fisher 130 S. Ct 546 U.S. Supreme Court December 07, 2009  No. 09–91

In an assault prosecution, grant of petitioner's motion to suppress evidence that he pointed a rifle at an officer when he entered his house is reversed where the officer did not violate the Fourth Amendment because he was responding to a report of a disturbance and encountered a tumultuous situation in the house, which justified a warrantless search under the emergency aid exception

Some Drug distribution convictions may be expunged under new expungement law

2010-02-09T19:30:00.001-08:00

Some Drug distribution convictions may be expunged under new expungement law

2C:52-2. Indictable Offenses.

a.In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.

Notwithstanding the provisions of the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, although less than 10 years has expired in accordance with the requirements of the preceding paragraph where the court finds:

(1)less than 10 years has expired from the satisfaction of a fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or

(2)at least five years has expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction.

In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person's age at the time of the offense, the person's financial condition and other relevant circumstances regarding the person's ability to pay.

Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.

b.Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.

Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); section 2C:13-6 (Luring or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); section 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b(4) (Endangering the welfare of a child); section 2C:24-4b. (3) (Causing or permitting a child to engage in a prohibited sexual act); section 2C:24:4b.(5)(a) (Selling or manufacturing child pornography); section 2C:28-1 (Perjury); section 2C:28-2 (False Swearing); section 2C:34-1b.(4) (Knowingly promoting the prostitution of the actor's child); section 2 of P.L.2002, c.26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes.

Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.

c.In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve:

(1)Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less;

(2)Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less; or

(3)Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.

d.In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.

tate v Williams DOCKET NO. A-4530-07T4

2009-11-27T19:56:00.001-08:00

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4530-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT E. WILLIAMS A/K/A
ROBERT LOVE,
Defendant-Appellant.
________________________________________________
Argued October 6, 2009 - Decided
Before Judges Skillman, Gilroy and
Simonelli.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment
No. 06-11-1044.
Alyssa Aiello, Assistant Deputy Public
Defender, argued the cause for appellant
(Yvonne Smith Segars, Public Defender,
attorney; Ms. Aiello, of counsel and on the
brief).
Steven A. Yomtov, Deputy Attorney General,
argued the cause for respondent (Anne
Milgram, Attorney General, attorney; Mr.
Yomtov, of counsel and on the brief).
APPROVED FOR PUBLICATION
November 23, 2009
APPELLATE DIVISION
November 23, 2009
2 A-4530-07T4
The opinion of the court was delivered by
SKILLMAN, P.J.A.D.
The primary issue presented by this appeal is whether
flight from an unconstitutional investigatory stop that could
justify an arrest for obstruction automatically justifies the
admission of any evidence revealed during the course of that
flight. We conclude that such evidence is admissible only if
there is a significant attenuation between the unconstitutional
stop and the seizure of evidence and that commission of the
offense of obstruction is insufficient by itself to establish
significant attenuation.
On August 25, 2006, Officer Delaprida of the Elizabeth
Police Department was dispatched together with thirteen to
fifteen other officers to the courtyard of a large housing
complex located in a high-crime area. Delaprida and the other
officers were sent to the housing complex to deter, through a
"police presence," a possible retaliatory shooting for a
homicide committed several days earlier.
Officer Delaprida had no information concerning the basis
for the report of a possible retaliatory shooting. Delaprida
also had no description or other information concerning the
person or persons who might be planning the shooting.
3 A-4530-07T4
When Officer Delaprida arrived at the housing complex with
his partner around 8:30 p.m., they observed a large number of
people in the courtyard, including children and older people,
"just hanging out." One of the persons the officers observed
was defendant, who was riding a bicycle diagonally in front of
them.
When defendant recognized the officers, who were dressed in
plain clothes, as police, he quickly started pedaling away and
also put his right hand in his pants pocket. The officers
ordered defendant to stop, but he kept pedaling "at a steady
pace," and the officers started to run after him. Defendant
then saw other officers entering the courtyard from the
direction he was headed and slowed down. At this point, Officer
Delaprida and his partner caught up with defendant, and grabbed
him while still on his bicycle. As the officers grabbed him,
defendant pulled his hand out of his pocket and threw a box to
the ground. The box was later determined to contain a
substantial amount of cocaine. Officer Delaprida estimated that
only four or five seconds elapsed between when he ordered
defendant to stop and when he grabbed him on his bicycle.
Defendant was indicted for possession of cocaine, in
violation of N.J.S.A. 2C:35-10(a)(1); possession of cocaine with
the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1)
4 A-4530-07T4
and N.J.S.A. 2C:35-5(b)(2); and possession of cocaine within 500
feet of a public housing facility with the intent to distribute,
in violation of N.J.S.A. 2C:35-7.1. Defendant subsequently
moved to suppress the evidence against him.
Based on the previously described testimony by Officer
Delaprida, the trial court concluded in a written opinion that
the report of a possible retaliatory shooting and the
observations by Officer Delaprida and his partner of defendant
pedaling his bicycle away from them and putting his hand in a
pocket did not provide the reasonable suspicion defendant was
engaged in criminal activity required for a Terry stop.1
Nevertheless, the court denied defendant's motion to suppress on
the ground that defendant's failure to immediately stop his
bicycle in response to Officer Delaprida's original command
established probable cause to arrest him for obstruction, in
violation of N.J.S.A. 2C:29-1(a), even though that command was
unconstitutional, and that defendant's apparent violation of the
obstruction statute provided sufficient grounds to justify the
stop that resulted in him discarding the cocaine hidden in his
pocket.
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
5 A-4530-07T4
Defendant subsequently entered into a plea bargain under
which he pled guilty to the charge of possession of cocaine, and
the State dismissed the possession with intent to distribute
charges. The trial court sentenced defendant to a four-year
term of imprisonment, with two years of parole ineligibility.
Defendant appeals from the denial of his motion to
suppress. See R. 3:5-7(d) (preserving right to appeal denial of
motion to suppress notwithstanding guilty plea).
I.
We first consider the validity under the Fourth Amendment
to the United States Constitution and Article I, paragraph 7 of
the New Jersey Constitution of the stop of defendant while he
was riding his bicycle in the housing complex courtyard.
A police encounter with a person constitutes an
investigatory stop subject to the protections of these
constitutional provisions if the facts objectively indicate that
"the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers'
requests or otherwise terminate the encounter." State v.
Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick,
501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402
(1991)). It is undisputed that defendant was subject to such a
6 A-4530-07T4
stop probably when Officer Delaprida ordered him to stop and
certainly when Officer Delaprida and his partner grabbed him on
his bicycle. See State v. Crawley, 187 N.J. 440, 450, cert.
denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006);
Tucker, supra, 136 N.J. at 165-66; State in Interest of C.B.,
315 N.J. Super. 567, 572-73 (App. Div. 1998).
"[A]n investigatory stop is valid 'if it is based on
specific and articulable facts which, taken together with
rational inferences from those facts, give rise to a reasonable
suspicion of criminal activity.'" State v. Williams, 192 N.J.
1, 9 (2007) (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)).
A suspicion of criminal activity will be found to be reasonable
only if it is based on "some objective manifestation that the
person [detained] is, or is about to be engaged in criminal
activity." Pineiro, supra, 181 N.J. at 22 (quoting United
States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66
L. Ed. 2d 621, 629 (1981)). In making this determination, a
court must consider "[t]he totality of the circumstances."
Ibid.
It is firmly established in this State that "flight alone
does not create reasonable suspicion for a stop[.]" State v.
Dangerfield, 171 N.J. 446, 457 (2002); see Pineiro, supra, 181
N.J. at 26; Tucker, supra, 136 N.J. at 168-70. However, flight
7 A-4530-07T4
"in combination with other circumstances . . . may support [the]
reasonable and articulable suspicion" required to justify a
stop. Pineiro, supra, 181 N.J. at 26; see State v. Citarella,
154 N.J. 272, 280-81 (1998); State v. Ruiz, 286 N.J. Super. 155,
163 (App. Div. 1995).
Applying these principles, the trial court correctly
concluded that Officer Delaprida and his partner did not have a
reasonable suspicion that defendant was engaged or about to
engage in criminal activity. These police officers had been
dispatched to the housing complex based on a report of a
possible retaliatory shooting in the area. The State did not
present any evidence regarding the source of the information
upon which the report was based. Consequently, the record does
not indicate whether the information came from a police officer,
a confidential informant, or merely a rumor in the neighborhood.
The report also did not include any specific information
regarding where in the housing complex or when the shooting
might occur, or who the possible perpetrator or perpetrators
might be. In addition, the officers admittedly did not have any
prior contact with defendant and thus had no reason to believe
he might be involved in the possible retaliatory shooting or
other criminal activity.
8 A-4530-07T4
In these circumstances, the police had no reason to focus
upon defendant as a possible perpetrator of the reported
possible retaliatory shooting. Defendant did not, for example,
match a description of a suspect, because the report did not
include such a description, and there is nothing intrinsically
suspicious about a person riding a bicycle in a housing complex
courtyard at 8:30 p.m. Thus, defendant's conduct when the
police first arrived at the scene was no more suspicious than
that of the numerous other persons congregated in the courtyard.
Moreover, defendant's conduct after he saw the officers
enter the courtyard did not provide an objectively reasonable
basis for suspecting that he had engaged in or was about to
engage in criminal activity. Defendant simply started quickly
pedaling away from the officers and put his hand in his pocket.
We question whether this conduct should even be considered
flight because the officers did not initially indicate to
defendant that he should stop. Defendant could have believed
that he should simply get out of the officers' way. In any
event, even if defendant's conduct in pedaling away from the
officers could be viewed as flight once they ordered him to
stop, as previously stated, "flight alone does not create [the]
reasonable suspicion [required] for a stop[.]" Dangerfield,
supra, 171 N.J. at 457.
9 A-4530-07T4
The fact that defendant also put his hand in his pocket did
not provide any additional foundation for an objectively
reasonable suspicion that defendant had engaged or was about to
engage in criminal activity. Putting a hand in a pocket is
fairly common human conduct that does not generally involve the
commission of a crime. Although Officer Delaprida testified
that he had a "concern maybe [defendant] was trying to hide a
weapon of some sort" in his pocket, he did not articulate any
basis for this alleged concern, and since defendant was pedaling
his bicycle in the opposite direction from the officers, the
officers could not have had any reasonable concern for their own
safety.
This case is similar to State v. L.F., 316 N.J. Super. 174
(App. Div. 1998), in which the State argued that defendant's act
of walking away when the police approached and also putting his
hand in his pocket created the reasonable suspicion of criminal
activity required for a Terry stop. In rejecting this argument,
we observed that "the mere act of putting something from one's
hand into one's own pocket while departing alone signifies
nothing additional by way of reasonable suspicion." Id. at 179.
This observation is equally applicable to the present case.
The State argues that the dispatch of police officers to
the housing complex to deter the commission of a retaliatory
10 A-4530-07T4
shooting constituted an exercise of the police department's
community caretaking responsibilities and that the prerequisites
for an investigatory stop should be applied less strictly in
that circumstance. "The 'community caretaker doctrine' . . .
applies when the 'police are engaged in functions, [which are]
totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a
[criminal] statute.'" State v. Diloreto, 180 N.J. 264, 275
(2004) (quoting State v. Cassidy, 179 N.J. 150, 161 n.4 (2004)).
Examples of police community caretaking activities include
"search[ing] for missing persons, . . . mediat[ing] disputes,
and . . . aid[ing] the ill or injured[.]" Id. at 281 (quoting
Debra Livingston, Police, Police Community Caretaking, and the
Fourth Amendment, 1998 U. Chi. Legal F. 261, 302 (1998)); see
also State v. Bogan, 200 N.J. 61, 73-81 (2009).
We do not believe that the dispatch of police officers to
an area to deter the commission of a crime constitutes an
exercise of the police's community caretaking responsibilities.
Indeed, the deterrence of criminal conduct is a significant
component of much police work, including routine foot and car
patrols. Thus, such police activity is not "totally divorced"
from the detection, investigation and acquisition of evidence
relating to criminal conduct. Diloreto, supra, 180 N.J. at 275.
11 A-4530-07T4
Therefore, the expansion of the community caretaking doctrine to
apply in circumstances where the police are undertaking to deter
crime would significantly dilute the protections against
unreasonable searches and seizures provided by the United States
and New Jersey Constitutions.
For all these reasons, the trial court correctly concluded
that Officer Delaprida and his partner did not have the
reasonable suspicion of criminal activity required to stop
defendant.
II.
We now consider the trial court's ruling that even though
the initial stop of defendant was unconstitutional, defendant's
failure to comply with Officer Delaprida's command to stop
constituted obstruction, which provided the probable cause
required to justify defendant's arrest and justified admission
of the evidence of the cocaine defendant discarded when the
police apprehended him. This requires a review of the Supreme
Court's recent decisions in Crawley, supra, 187 N.J. 440, and
Williams, supra, 192 N.J. 1. In Crawley, the Court held that a
person who flees from an investigatory stop may be convicted of
obstruction under N.J.S.A. 2C:29-1 even though the stop is later
found to have been unconstitutional if the police officer making
12 A-4530-07T4
the stop was "acting in objective good faith, under color of law
in the execution of his duties." 187 N.J. at 460-61. In
Williams, the Court held that evidence the police obtained in
apprehending a person who has obstructed an unconstitutional
investigatory stop may be admissible if the evidence is
"sufficiently attenuated from the taint" of the unconstitutional
stop. 192 N.J. at 15.
Defendant argues that his failure to immediately stop his
bicycle in response to Officer Delaprida's command could not be
found to constitute obstruction within the intent of N.J.S.A.
2C:29-1(a) as interpreted in Crawley. We have no need to
address this argument because we conclude that even if
defendant's failure to obey Officer Delaprida's command to stop
would have provided an adequate basis to arrest him for
obstruction, the evidence obtained when Officer Delaprida and
his partner grabbed defendant was not "sufficiently attenuated"
from the taint of the unconstitutional stop to justify its
admission into evidence.
The Court in Williams held that the determination of
whether the police "have obtained the evidence by means that are
sufficiently independent to dissipate the taint of their illegal
conduct" requires consideration of three factors: "(1) the
temporal proximity between the illegal conduct and the
13 A-4530-07T4
challenged evidence; (2) the presence of intervening
circumstances; and (3) the flagrancy and purpose of the police
misconduct." 192 N.J. at 15 (quoting State v. Johnson, 118 N.J.
639, 653 (1990)).
In Williams, the defendant responded to a police command
that he place his hands on his head to enable the officers to
pat him down by pushing one of the officers and fleeing from the
scene. Id. at 5. When the police caught the defendant, he was
found with a handgun in his possession. Ibid. The Court
concluded that the most significant factor in determining the
admissibility of the handgun was "the presence of intervening
circumstances," id. at 16, specifically defendant's pushing of
one of the officers involved in the stop and fleeing from the
scene, thus requiring the officers to engage in a police
pursuit. Id. at 18. Based primarily on this factor, the Court
concluded that the seizure of a handgun from the defendant
following his obstruction of an unconstitutional investigatory
stop was sufficiently attenuated from the stop to support
admission of the evidence. Id. at 15-18.
The State argues that any flight or other conduct by a
person subject to an unconstitutional stop that would provide a
basis to arrest for obstruction also automatically requires
denial of a motion to suppress any evidence obtained as a result
14 A-4530-07T4
of that person's apprehension, unless there is a showing of bad
faith on the part of the police. However, as pointed out in the
leading treatise in the field of search and seizure law, the
question whether a person may be prosecuted for a new crime
committed in response to an unconstitutional stop or other
police misconduct is a different question than "whether an
arrest for the new crime should be deemed so substantially
'purified' by that new crime as to provide a lawful basis for
admitting evidence of some other offense . . . found in a search
incident to that arrest." 6 Wayne R. LaFave, Search & Seizure:
A Treatise on the Fourth Amendment § 11.4(j), at 66 (4th ed.
Supp. 2009).
Consistent with this view, our Supreme Court in Williams
did not say that any conduct that could be found to constitute
obstruction automatically constitutes "an intervening act . . .
that completely purge[s] the taint from the unconstitutional
investigatory stop." 192 N.J. at 18. Instead, the Court
indicated that the determination "whether evidence is
sufficiently attenuated from the taint of a constitutional
violation" must be made on a case-by-case basis in light of the
three-factor test set forth in Johnson, supra, 118 N.J. 639, and
reaffirmed in Williams, 192 N.J. at 15.
15 A-4530-07T4
In concluding that the recovery of the handgun at the end
of the police pursuit in Williams was sufficiently attenuated
from the taint of the unconstitutional stop to justify the
admission of that evidence, the Court pointed to State v.
Seymour, 289 N.J. Super. 80 (App. Div. 1996) and State v.
Casimono, 250 N.J. Super. 173 (App. Div. 1991), certif. denied,
127 N.J. 558, cert. denied, 504 U.S. 924, 112 S. Ct. 1978, 118
L. Ed. 2d 577 (1992), as other examples of cases in which the
taint of unlawful police conduct had sufficiently dissipated as
a result of intervening criminal acts to justify admission of
evidence recovered after the defendant's apprehension. Id. at
16. Therefore, it is illuminating to consider the factual
circumstances that this court found to establish a sufficient
attenuation between an unconstitutional stop and subsequent
seizure of evidence to justify admission of that evidence in
those cases.
In Seymour, the defendant disobeyed a police signal to stop
his car, which resulted in a mile and a quarter police pursuit
during which defendant increased his speed from forty to fifty
miles per hour and swerved onto the shoulder of the road several
times. 289 N.J. Super. at 83-85. In the course of this police
pursuit, the defendant discarded cocaine out the window of his
car. Id. at 83. Although the court assumed that the initial
16 A-4530-07T4
police signal to defendant to stop his car was unlawful, id. at
84, it nevertheless concluded that defendant's failure to comply
with that command constituted eluding, in violation of N.J.S.A.
2C:29-2(b), id. at 85, and affirmed the denial of the
defendant's motion to suppress evidence of the cocaine discarded
during the course of the police pursuit. Id. at 86-89. In
reaching this conclusion, the court observed: "Fleeing from the
police in a motor vehicle with the police in vehicular pursuit
could endanger defendant, the officer, other motorist, or
pedestrians." Id. at 87.
In Casimono, the police directed a car to pull over to the
shoulder of the road because the driver had made several lane
changes without signaling. 250 N.J. Super. at 177. As the car
pulled over, the police observed the defendant, who was a
passenger, make a "furtive" movement. Ibid. Based on this
observation, the police subjected both the driver and the
defendant to pat down searches. Id. at 178. The driver
resisted the search, first refusing to take his hand out of his
pocket and then throwing something over the guardrail located
along the shoulder of the roadway, which was subsequently
determined to be a dollar bill containing cocaine residue.
Ibid. At this point, defendant returned to the car where he
retrieved a paper bag, which was subsequently determined to
17 A-4530-07T4
contain a substantial amount of cocaine, and also threw it over
the guardrail. Ibid. The defendant and the driver then had to
be physically subdued. Ibid.
We concluded that even though the stop of the car in which
defendant had been riding was lawful, the pat down searches of
the driver and the defendant had been unlawful. Id. at 178-82.
Applying the three-factor test adopted in Johnson and later
reaffirmed in Williams, we held that evidence of the cocaine in
the dollar bill should have been suppressed because the driver
"threw [the] dollar bill containing cocaine residue over the
guardrail during and in direct response to the illegal pat down
search[.]" Id. at 186. On the other hand, we held that the
trial court had properly denied the motion to suppress the
cocaine contained in the paper bag because the unlawful pat down
search of defendant had been completed before he voluntarily
returned to the car, in violation of the police officer's
directions, and retrieved the paper bag that he threw over the
guardrail. Ibid. We noted that the only unlawful police
conduct was the pat down searches of the defendant and the
driver, that the bag of cocaine was not located on their persons
but rather in the car, and that defendant had gained access to
the bag only by disobeying a lawful police order to remain
outside the car. Id. at 186-87. Under these circumstances, we
18 A-4530-07T4
concluded that "there was a significant break in the chain of
causation between the illegal searches and the discovery of the
cocaine." Id. at 187.
Under the three-factor test for determining significant
attenuation between unlawful police conduct and seizure of
evidence reaffirmed in Williams, we perceive no basis for
concluding that the unconstitutional stop of defendant
constituted "flagran[t] . . . police misconduct." Williams,
supra, 192 N.J. at 15 (quoting Johnson, supra, 118 N.J. at 653).
However, the other Williams factors militate against the
conclusion that there was a significant attenuation between the
stop and the seizure of the cocaine discarded by defendant.
Only four or five seconds elapsed between when Officer Delaprida
directed defendant to stop his bicycle and defendant discarded
the cocaine. Consequently, there was a very close "temporal
proximity between the illegal conduct and the [recovery of] the
challenged evidence[.]" Ibid. (quoting Johnson, supra, 118 N.J.
at 653).
Most importantly, there were no significant "intervening
circumstances" between the unlawful police command to defendant
to stop his bicycle and defendant's discard of the box that
resulted in the seizure of cocaine. Ibid. Defendant did not
push a police officer, as in Williams, flee in a car resulting
19 A-4530-07T4
in a mile and a quarter police pursuit, as in Seymour, or seek
to avoid apprehension by returning to a lawfully stopped car
after the police had removed him from the car, as in Casimono.
In those cases the defendant's intervening criminal acts not
only constituted a break in the chain of causation between the
unlawful police conduct and seizure of evidence but also posed a
risk of physical injury to police officers and, at least in
Seymour, members of the public. In contrast, defendant did not
force the officers to engage in a lengthy and dangerous pursuit
to apprehend him or engage in any act of physical aggression
against Officer Delaprida and his partner. In fact, the
officers physically accosted defendant by grabbing him on his
bicycle. Therefore, there is no basis for concluding that the
police seized the cocaine discarded by defendant "by means that
[were] sufficiently independent to dissipate the taint of their
[prior] illegal conduct." Williams, supra, 192 N.J. at 15
(quoting Johnson, supra, 118 N.J. at 653).
"The purpose of the exclusionary rule is to deter police
misconduct and to preserve the integrity of the courts."
Johnson, supra, 118 N.J. at 651. The attenuation exception
applied in Williams, Seymour and Casimono was established in
recognition of the fact that the seizure of evidence following
police misconduct is in some circumstances so "far removed from
20 A-4530-07T4
the constitutional breach" that suppression "is a cost [that is]
not justified" by the purposes of the exclusionary rule. State
v. Badessa, 185 N.J. 303, 311 (2005). However, it is equally
true that an overly expansive application of the attenuation
exception can undermine the salutary objectives of the
exclusionary rule. In New Jersey, the three-factor test
reaffirmed in Williams delineates the circumstances in which the
attenuation exception may be properly applied. Under those
factors, the State failed to establish a "significant
attenuation" between the unconstitutional stop of defendant and
the seizure of the drugs he discarded following that stop.
Accordingly, the order denying defendant's motion to
suppress is reversed and the judgment of conviction is vacated.

11-12-09 STATE OF NEW JERSEY v. UCHE ADIM

2009-11-18T08:13:00.000-08:00

11-12-09 STATE OF NEW JERSEY v. UCHE ADIM
A-4962-05T4

We consider deviations from the model jury instructions on further deliberations approved in State v. Czachor, 82 N.J. 392, 400 (1980) and adopted in Model Jury Charge (Criminal), Final Charge: Further Jury Deliberations at 24 (2004) and conclude that a judge may not outline the evidence in delivering that supplemental charge. We also address the State's privilege to withhold the identity of a citizen who provides information about the concealment of evidence of a crime and conclude that the State is not required to establish an ongoing arrangement with the informer in order to invoke the privilege provided in N.J.R.E. 516.

Assistant Editor: Umair Hussain

KENNETH VERCAMMEN – resume and community involvement

2009-11-14T16:26:00.001-08:00

KENNETH VERCAMMEN – resume and community involvement
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
www.njlaws.com
Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on probate, estate planning, criminal and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.
Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.   He is the past chair of the NJ State Bar Association Municipal Court Section. He is the Deputy chair of the ABA Criminal Law committee, GP Division. Kenneth Vercammen was selected one of only three attorneys as a Super Lawyer 2009 in NJ Monthly in the Criminal - DWI.
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 successfully handled over One thousand Municipal Court and Superior Court matters in the past 18 years.

Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA. He started his career as a trial attorney for Drazin & Warshaw in Hazlet and Red Bank, NJ, and Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl in North Brunswick.

ADMISSIONS: Admitted In NJ, NY, PA, US Supreme Court and Federal District Court

MANAGING ATTORNEY Kenneth Vercammen & Associates, PC March 1990-Present
Full service Law practice with offices in Edison and Cranbury.

PROSECUTOR Township of Cranbury, Middlesex County, NJ 1991-1999
Municipal Prosecutor for criminal and traffic cases involving Township and State Police
-Acting Assoc. Prosecutor: Carteret Municipal Court, Middlesex County, NJ 2000

EDITOR- NJ MUNICIPAL COURT LAW REVIEW 1993- present

Middlesex County Bar Association 2008 Municipal Court Attorney of the Year

NJ State Bar Association- 2005-2006 Municipal Court Attorney of the Year Award

New Jersey Super Lawyers selection 2009, 2008, 2007, 2006

Who's Who in America 2004

NJ State Bar Association- 2002 General Practitioner of the Year Award

1993 AWARD WINNER "Service to the Bar Award"- New Jersey State Bar Association YLD

RELEVANT LITIGATION SPEAKING ENGAGEMENTS:
-Criminal, DWI and Drug Cases- NJ State Bar Annual Meeting 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002, 01, 00, 99
-Civil Trial Practice- Middlesex Bar 2004
-Personal Injury Litigation- NJ Institute for Continuing Legal Education/ NJ State Bar
2001, 2000,1999,1998,1997,1996,1995,1994,1993,1991
-Municipal Court Handling Serious Cases ICLE/NJSBA-2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002,2001,2000,1998,1997,1995,1994
-NJ Association of Municipal Court Administrators 2002
-Edison Police Auxiliary- Search and Seizure 2002
-New Jersey Network TV- Due Process TV show 2000
-Cablevision TV- Law on the Line 2003, 2001
-Elder Law and Probate NJSBA/ ICLE 2009, 2008, 2007, 2006, 2005, 2004, 03,02,01,99,98,97,96

PUBLICATIONS:
Published 150 separate Law Review and Legal Periodical articles in legal journals such as New Jersey Law Journal, American Bar Association Barrister, New Jersey Lawyer, ABA Law Practice Management, and New Jersey State Bar Association's Dictum. Listed on www.njlaws.com.

KENNETH VERCAMMEN, ESQ.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE
East Brunswick Adult School 2009, 2008
Middlesex County Police Chiefs 2009- Living Wills
Middlesex County College- Wills & Probate 2007
Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
- Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
-Elder Law and Estate Planning- American Bar Association New York City 2008, Miami 2007
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Hall's Corner 2002;
-Linden AARP 2002
-Woodbridge Adult School -Wills and Estate Administration -2001, 2000,1999,1998,1997,1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
-Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
-Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
-AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005
-Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peter's-2000, 1999,1998
-East Brunswick AARP Wills 2001; -Iselin/ Woodbridge AARP Wills 2000
-Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001
-North Brunswick Senior Day 2001
-Wills, Elder Law and Probate-South Brunswick Adult School & Channel 28 TV 1999, 1997,1993
-Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995
-Senior Citizen Law-Perth Amboy YMHA 1995; Temple Beth Or 2002;
-Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993
-Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994
-Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994
-Wills and Estate Planning-Edison Elks and Senior Citizens January 1994
-"Legal Questions Clinic" Metuchen Adult School March 1995,1994,1993
-Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993

SPECIAL ACTING PROSECUTOR: Woodbridge, East Brunswick, Metuchen, South Brunswick, Perth Amboy, Cranbury, South Plainfield, Clark, South River, Hightstown, Carteret, Jamesburg, Berkeley Heights on conflict matters. Past President- Middlesex Municipal Prosecutor's Association. Previous experience with the Delaware County, Pennsylvania District Attorney Office, Middlesex County Probation Department and Scranton District Magistrate Office.

Metuchen Public Defender 2001- present Edison Public Defender 1990-1991

KENNETH VERCAMMEN- Community Service

NON- PROFIT: -Edison Elks-Presiding Justice 1993- Present
-Y.B. CHOI TAE KWON DO (Korean Karate)- 4th degree Black Belt awarded 2008 3rd degree 2004 ; 2nd degree December 1993, 1st degree Black Belt December 2001
-Raritan Valley Road Runners- Comeback of the Year Award 2002 and ranked Master Distance Runner; state champion 20,000 meter team 2005

New Jersey State Age Group Champion Garden State Games 5,000 meter run 1993
-Bishop Ahr/St. Thomas Aquinas H.S. Alumni Society
Elected Vice-President 1989-1990; Class of 1977- 25 year Reunion Chair
-Edison 14th District Committeeman Elected 1988-1994
-St. Francis Cathedral- Church Lector 1990-1994
-University of Scranton, North Jersey Alumni Chapter Co-Chair, Fall Social 1988
-Knights of Columbus-Fourth Degree Knight, Edison Council
Edison NJ Essay Contest Chair 1992,1993
Metuchen Chamber of Commerce, Past member Edison Chamber of Commerce;
RUNNING:
Raritan Valley Road Runners RVRR Rumson HashHouse Harriers
Central Jersey Road Runners CJRR Jersey Shore Triathlon Club JSTC
Freehold Area Running Club FARC Scranton Area Organization Runners SOAR
Jersey Shore Running Club JSRC USATF- US Athletic Track & Field
Sandy Hook Triathlon Club First Place- Bergen Bar 5k Law Day Run May 2001 South Brunswick Running Group- President First Place- CJRR Summer 5K 2002
First Place: Cocoa Beach 2 mile 2008, 2007; Cranford Run for Lupus 4 mile 2006, JSRC Twilight run 2006. Indian Trials Middletown 3m 2005,2004; Stroudsburg 5k 2005, 2004; Wildwood 5k, Ocean Winter 4 mile, Edison Lannie 5k, 2004; Washington DC Run for Justice 5K 2002
CJRR Age group champ 2005,2004, 2002, 1996, 1995
New York Marathon top 100 NJ Finisher

ACTIVITIES: Married 1989, one son born 1991, daughter born 1994
Weekend Road Running Races, Triathlons, Soccer
Tae Kwon Do Karate

SOUTH BRUNSWICK AREA
Summer Blast/Ireland Brook Neighborhood Sponsor
So. Brunswick Soccer Asst. Coach Travel 2007, 2006, 2005, 2004, 2003, 2002, 2001, 2000, 1999, 98
So. Brunswick Athletic Assoc.-Team Sponsor and helper with son's team
So. Brunswick Viking 5k- volunteer
South Brunswick 5K running Race volunteer
So. Brunswick Bicentennial Volunteer
Neighborhood Picnic Sponsor 1998-2009
So. Brunswick 50 Mile Bike Volunteer and 50 mile Finisher
Holt for Congress Volunteer

CHARITABLE: American Cancer Society-Chairman
Annual Summer Fundraiser Picnic- 1987,88,89,90,91,92
Chairman, Annual Christmas Fundraiser- 1987,88,89,90,911,92
Recipient-Young Professionals Award-Sept. 1988, Sept. 1989
Board of Manager's - 1989-1994 Founder and Chair-Young Professionals Group

KENNETH VERCAMMEN, ESQ. Education & Awards

LEGAL EDUCATION: The Widener/ Delaware Law School, J.D., May 1985
Class Rank: Top Ten Percent
Awards: Honor Grades: Federal Income Tax, Business Organization, Criminal Law, Advanced Advocacy, Family Law, New Jersey Practice, Unfair Trade Practices, Professional Liability.
Outstanding Service Award Recipient in Graduation Ceremony
Delaware Merit Scholarship - 1983, 1984
Provincial Winner - Phi Delta Phi Legal Honor Fraternity Graduate of the Year Award
Who's Who in American Law Schools

ACTIVITIES:
Law Review- Senior Staff-Member
Harvard Journal of Law and Public Policy, Senior Editor 1984-1985
Winner - Sixth Annual Trial Advocacy Competition
First Prize - Delaware Law School/ATLA Environmental Law Essay Contest
Delaware Law Forum, Casenote Editor

Working Scholar- Hon. Philip Gruccio, Assignment Judge of Atlantic, Cumberland, Cape May, Salem Counties
Association of Trial Lawyers of America, Delaware Chapter Treasurer
Law School Running Club - President
Research Assistant - Dean Arthur Weeks
Publications- Published in Law Review and wrote more articles than 75% of law faculty members

PRELEGAL EDUCATION: University of Scranton B.S., January 1981
Major: Political Science: Graduated Cum Laude in 3-1/2 years
Honors:
- Cited in Who's Who in American Colleges and Universities;
- Dean's List; Pi Gamma Mu Honor Society; Pi Sigma Alpha Honor Society.
- Varsity Cross- Country - Team Captain and Record Holder of Indoor Half-Mile
- District Magistrate Thomas Hart- Paid Law Clerk/ Executive Assistant
- Pre-Law Society Public Relations Director
- Voter Registration Drive Coordinator
- Internship with Pa. Representative Hon. Fred Belardi
- School Newspaper Staff and Sportswriter
- WYRE radio station sports caster
- 3rd Place Wrestling Tournament
- Campus Bowl Intellectual Competition (Team Captain)
- Trustee Day Volunteer, Red Cross Blood Drive Volunteer
- Senior Class - Hard Rockers Social Committee Chair
-Alumni Society-Estate Planning Council 1997-Present
- Class of 1981 20 year Reunion Executive Committee member 2001 -25 Year Reunion Co-chair

KENNETH VERCAMMEN
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
The American Bar Association is the largest voluntary professional organization in the world with more than 400,000 members

AMERICAN BAR ASSOCIATION - National Appointments:

General Practice Solo & Small Firm Division
-Estate Planning, Probate & Trust Committee- Chair 2008-2009, 2006-2007
-Elder Law Committee Chair 2005- present, Vice Chair 1996-1999
- Criminal Law Committee Deputy Chair 2006-present
- Tort, Personal Injury and Insurance Committee Chair 2005- 2006
-Deputy Chair and Newsletter Editor-GP Marketing Legal Services Committee 1993 -1996
- Probate & Estate Planning Committee- Newsletter Editor & Vice Chair 1997-1999, Vice Chair 2005
-Litigation Committee Member 1993 - present

BUSINESS AND AMERICAN BAR ASSOCIATION SPEAKING ENGAGEMENTS:
-Elder Law, Estate and Probate ABA Chicago Annual Meeting
-Elder Law and Probate New York City 2008 Annual Meeting
- Improving Your Elder Law & Estate Practice San Francisco, CA 2007
-Elder Law and Estate Planning- ABA Miami 2007
-Elder Law Practice, New Ethical Ideas to Improve Your Practice for Clients ABA Hawaii 2006
-Marketing Success Stories ABA Toronto 1998
-Opening a Business-Sayreville Adult School 1997,1996,1995
-Olympians of Marketing- ABA Annual Meeting-Orlando, Florida 1996
-Unique Marketing Techniques & Client Relations III ABA Annual Meeting-Chicago 1995
-Starting a Business-Brooklyn Bar Association 1995,1994
-Personal Marketing & Relations - 1995 Miami ABA meeting LPM Personal Marketing Skills IG
co-sponsored by four Major National Bar Sections and committees
-How to Start a Practice-1994 New Orleans ABA Annual Meeting LPM primary sponsor
-1993 New York Annual Meeting "Marketing for Small Firms"

LAW PRACTICE MANAGEMENT SECTION ABA- LPM
-Co-Chair with Jay Foonberg-ABA LPM Personal Marketing Skills Group 1998,1997,1996,1995,1994
-Speaker at many ABA Annual Meetings
-National Liaison and ex-officio member of Law Practice Management Section Council 1993 - 1995
-National Chair - Law Practice Management Committee YLD 1992-1993
-Chair and Newsletter Editor-Marketing Legal Services Committee 1996-1997,1999-2000
ABA Attendance at Leadership Conferences and participation at following Annual and Sectional meetings: Chicago 2009, New York 2008, Philadelphia GP 2007, San Francisco 2007, Washington GP 2007, Miami 2007, Hawaii 2006, Philadelphia LPM 2005; Washington DC 2002; Philadelphia 2002; London 2000, New York 2000, Atlanta 1999, Beverly Hills 1999, Cancun LPM 1998, Naples-LPM 1997; Captiva 1996, Orlando 1996, Coronado LPM 1995, Chicago 1995, Miami 1995, Washington D.C. GP 1995, Vancouver LPM 1995, New Orleans 1995, Napa, CA LPM 1994, Colorado LPM 1993, New York 1993, Boston 1993, San Francisco 1992, Cleveland GP 1992, Scottsdale AZ 1991, Los Angeles 1990, Hawaii 1989, Philadelphia 1988, Toronto 1988, New York City 1986, Washington DC 1985

KENNETH VERCAMMEN
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
New Jersey State Bar Association- Municipal Court Section Chair 2003-2004, Vice Chair 1999-2002; Chair of Municipal Court Education Committee 1996-Present
Middlesex County Bar Association Chair Municipal Court Practice Committee 1997-2008
County Bar Board of Trustees 2000- 2006

New Jersey State Bar Association -General Practice Section-Board of Directors 1995- Present

ADJUNCT PROFESSOR Middlesex County College
Edison, NJ February, 2001-April, 2001; Jan. 1990-May, 1991
Instructor of "Criminal Law and Procedure" and Business Law. Taught college students the elements of crime and the criminal procedure system. Explained the incidents before and after trial and analyzed the impact of the Constitution on crimes and criminal procedures.

New Jersey Superior Court - Certified Mediator 1997-

New Jersey Supreme Court Committee on Municipal Courts 2000-2005

Other Speaking
-Update of Municipal Court-NJSBA Annual Meeting Atlantic City 1999,1997, 95, 94
- Cranbury Twp Municipal Alliance Against Substance Abuse 2004, 2002
-ATLA-NJ - New Jersey Courts 1991
-Intoxicated Driver Resource Center/IDRC - DUI Law 1999, 1991
-Preventing the Impaired Driver-Coalition Against Impaired Drivers 1992
-Winning Lawsuit Threshold Cases NJSBA 1992
-WCTC Radio Mid-Day Legal Advisor - Criminal and Traffic Laws 1991 and 1990
-Computers in Litigation-NJSBA Law Office Management 1994
-Self Defense Law in New Jersey - Cranbury Police Dept. 1997,1993,1992

Self Defense and Home Protection - Speaker - New Brunswick Crime Watch - 1989
-Wills and Power of Attorney 1991 Edison Democratic Association
Defending Speeding Cases - New Jersey State Bar Association/NJSBA - 1989
-Family Law & Domestic Violence Trial Practice NJ State Bar Association 1995,1994,1993
-Automobile Insurance - Middlesex County College - 1990
-Criminal & Juvenile Courts Piscataway Vo Tech – 1990
-Living Wills-Dean Witter and Nordstroms, Menlo Park Mall October 1992; Trusts and Living Wills-Dean Witter, Metro Park, June 1992; Estate Planning-North Brunswick Republican Club May 1992;

Make a Wish Foundation- Co Chair 19th Annual Summer Blast 1994 in Belmar, NJ
Co Chair Christmas Fundraiser 1993
Jersey Shore Medical Center Chair-18th Annual Summer Blast to Benefit the Jersey Shore Regional
Trauma Center at Bar Anticipation, Belmar 1993
American Red Cross Elected to Board of Directors 1988-1991

HANDLING DRUG, DWI SERIOUS MOTOR VEHICLE CASES SEMINAR

2009-09-02T12:45:00.000-07:00

HANDLING DRUG, DWI & SERIOUS MOTOR VEHICLE CASES SEMINAR
Featuring a discussion on the newly released court rules!

Saturday, October 17, 2009
9:00 AM to 12:30 PM
The Westin Mount Laurel, Mt. Laurel

Monday, October 26, 2009
6:00 PM to 9:30 PM
Sheraton Edison, Edison (Raritan Center)

Presented in cooperation with the NJSBA Municipal Court Section and
the NJSBA Young Lawyers’ Section

Are you prepared to prosecute or defend your client in new Alcotest cases? Are you familiar with the new & increased penalties for certain offenses?
This informative guide to Municipal Court practice and procedure will familiarize you with recent new developments affecting cases that are heard in Municipal Court. An authoritative panel of experienced attorneys will be joined by a Presiding Municipal Court Judge to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients.
Gain a thorough understanding of Municipal Court practice, procedure, & recent developments...
 • Criminal Case Law and Legislative Update
 • The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double jeopardy issues 
• Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff 
• Recent developments in traffic law, merged traffic tickets and more
 • DWI and Chun 
• A special Q&A session: Ask the Experts

Speakers include:

KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
Chair, ABA Elder Law Committee
K. Vercammen & Associates
(at Mt. Laurel & Edison)

HON. ROBERT J. ZANE, III, PJMC
(Camden)
(at Mt. Laurel)

WILLIAM G. BRIGIANI, ESQ.
(at Mt. Laurel & Edison)

ROBERT A. GLEANER, ESQ.
Prosecutor in Audubon and Stratford (Camden County)
(at Mt. Laurel)

JOHN MENZEL, ESQ.
(at Mt. Laurel & Edison)

HON. JOHN J. COYLE, JR. JSC
(Belvidere)
(at Edison)

HON. JOAN ROBINSON GROSS, PJMC
(Union County)
Chair, Supreme Court Municipal Practice Committee (Union County)
(at Edison)

NORMA M. MURGADO, ESQ.
Chief Prosecutor (Elizabeth)
Assistant Prosecutor (Woodbridge)

(at Edison)

New Jersey Institute for Continuing Legal Education  The non-profit continuing education service of:  The New Jersey State Bar Association Rutgers - The State University of New Jerseys Seton Hall University  One Constitution Square, New Brunswick, New Jersey 08901-1520  Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com • Privacy Policy

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

7-22-09 State v. Robinson (A-62-08)

2009-07-27T13:40:00.001-07:00

7-22-09 State v. James Robinson (A-62-08)
Defendant’s conviction and sentence are reinstated because, in
the circumstances of this case, the delay of twenty- to thirtyseconds
between the police officers knocking and announcing
their purpose to execute a search warrant and their forcible
entry into the apartment was reasonable, and defendant’s
challenge concerning the officers’ use of a “flash bang” device
was raised for the first time on appeal and was not appropriate
for consideration.

Richard Sadowski
Assistant Editor

7-21-09 State v. Marshall (A-33-08)

2009-07-27T13:39:00.001-07:00

7-21-09 State v. Quinn Marshall (A-33-08)
The search warrant was issued in violation of the constitutional
requirement to describe the place to be searched with
particularity. Because police were authorized to determine if
the conditions in the warrant were satisfied, the role of the
neutral, detached magistrate was delegated to the police. The
failure to comply with the particularity requirement and the
failure to have a neutral and detached magistrate determine
whether the conditions in the warrant were satisfied are
constitutional violations, not technical insufficiencies
justifying overlooking the deficiencies in the warrant.

Richard Sadowski
Assistant Editor

07-02-09 STATE V. O'DONNELL

2009-07-07T11:11:00.001-07:00

07-02-09 STATE V. ALICE O'DONNELL
A-0858-06T4
Evidence observed in plain view during a police entry into
a residence to provide emergency aid may be seized without a
warrant even though there is a short delay between the emergency
aid entry and the seizure of evidence by other police officers
responsible for processing the crime scene.

Richard Sadowski
Assistant Editor

6-15-09 State v. Baum and Moore (A-44-07)

2009-06-17T07:49:00.000-07:00

6-15-09 State v. Angela Baum and Jermel Moore (A-44-07)

Defendant Jermel Moore’s motion to suppress evidence found
during a warrantless search of the vehicle in which he was
riding should have been denied because he did not have standing
to argue that the driver’s right against self-incrimination was
violated and because the search was not unreasonable.

Richard Sadowski
Assistant Editor

1-22-09 State v. Reeds (A-103-07)

2009-01-27T11:52:00.001-08:00

1-22-09 State v. Rahmann Reeds (A-103-07)
Defendant suffered undue prejudice from the evidence in the form of expert testimony opining, in effect, that he constructively
possessed the drugs found in the vehicle he was driving. This ultimate-issue testimony usurped the jury’s singular role in the
determination of defendant’s guilt and irredeemably tainted the remaining trial proofs, producing an unjust result in defendant’s trial.

Pat down during traffic stop requires belief person is armed and dangerous ARIZONA v. JOHNSON

2009-01-26T17:35:00.000-08:00

Pat down during traffic stop requires belief person is armed and dangerous ARIZONA v. JOHNSON

SUPREME COURT OF THE UNITED STATES
certiorari to the court of appeals of arizona

No. 07–1122. Argued December 9, 2008—Decided January 26, 2009
In Terry v. Ohio, 392 U. S. 1 , this Court held that a “stop and frisk” may be conducted without violating the Fourth Amendment ’s ban on unreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a requirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk (patdown for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U. S. 249 .

While patrolling near a Tucson neighborhood associated with the Crips gang, police officers serving on Arizona’s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior and clothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out of the hearing of the front-seat passenger, about his gang affiliation. Because she suspected that he was armed, she patted him down for safety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor. The trial court denied his motion to suppress the evidence, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. Johnson was convicted. The Arizona Court of Appeals reversed. While recognizing that Johnson was lawfully seized, the court found that, prior to the frisk, the detention had evolved into a consensual conversation about his gang affiliation. Trevizo, the court therefore concluded, had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. The Arizona Supreme Court denied review.

Held: Officer Trevizo’s patdown of Johnson did not violate the Fourth Amendment ’s prohibition on unreasonable searches and seizures. Pp. 5–9.

(a) Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must be positioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. 392U. S.,at 24. Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a patdown is constitutional. Id., at 23–24, 27, 30–31. Traffic stops, which “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U. S. 420 , are “especially fraught with danger to police officers,” Michigan v. Long, 463 U. S. 1032 , who may minimize the risk of harm by exercising “ ‘unquestioned command of the situation,’ ” Maryland v. Wilson, 519 U. S. 408 . Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U. S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment ,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110–111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. 434 U. S., at 112. Wilson, 519 U. S., at 413, held that the Mimms rule applies to passengers as well as drivers, based on “the same weighty interest in officer safety.” Brendlin, 551 U. S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U. S., at 414. And as “the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, “the additional intrusion on the passenger is minimal,” id., at 415. Pp. 5–7.

(b) The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger, but concluded that once Officer Trevizo began questioning him on a matter unrelated to the traffic stop, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. The court portrayed the interrogation as consensual, and, Johnson emphasizes, Trevizo testified that Johnson could have refused to exit the vehicle and to submit to the patdown. But Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration. See Muehler v. Mena, 544 U. S. 93 . A reasonable passenger would understand that during the time a car is lawfully stopped, he or she is not free to terminate the encounter with the police and move about at will. Nothing occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Brendlin, 551 U. S., at 257. Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Pp. 7–9.

217 Ariz. 58, 170 P. 3d 667, reversed and remanded.

Ginsburg, J., delivered the opinion for a unanimous Court.