Kenneth Vercammen is past president of the Middlesex County NJ Municipal Court Prosecutor's Association. He served as the Cranbury Township Prosecutor. Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures to police departments as a volunteer on criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is co- Chair of the ABA Criminal Law Committee,GP and was a speaker at the 2012 ABA Annual Meeting attended by 10,000 attorneys and professionals. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

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Kenneth Vercammen & Associates, P.C.

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January 6, 2015

STATE OF NEW JERSEY VS. HUGO FIERRO A-4641-12T4

STATE OF NEW JERSEY VS. HUGO FIERRO
          A-4641-12T4
Defendant, a Newark police officer, was convicted by a jury of assault charges and official misconduct as a result of an incident recorded by an outdoor surveillance camera during which defendant drew his service weapon while off-duty and struck a man in the face with the gun, causing the man's nose to bleed. On his conviction for official misconduct, defendant was sentenced to a mandatory five-year term of imprisonment without parole. 
The conviction is affirmed. The trial court did not force defendant to testify in order to provide his version of the incident when it declined to instruct the jury after the State's case-in-chief on a justification defense pursuant to N.J.S.A. 2C:3-7(a), use-of-force by a police officer. Also, the split verdict — conviction on aggravated assault with a deadly weapon but acquittal on possession of a weapon for an unlawful purpose — did not require reversal on the ground that the jury did not understand the elements of the aggravated assault charge.

STATE OF NEW JERSEY VS. MAYTEE CORDERO A-4061-12T1

STATE OF NEW JERSEY VS. MAYTEE CORDERO 
A-4061-12T1 
In this third-degree shoplifting case, the State sought an in limine ruling permitting it to introduce evidence of a previous alleged shoplifting incident involving defendant and her codefendant to prove intent and the absence of mistake. The trial judge declined to rule on the admissibility of the 404(b) evidence until after the defense case, although the judge provided his tentative view that the evidence would be admissible if defendant testified that she unknowingly removed the unpurchased merchandise. On appeal, defendant challenges the court's procedure, which she claims chilled her exercise of her right to testify. We affirm, holding that a trial court may, in its discretion, await the conclusion of a defendant's case before deciding the admissibility of 404(b) evidence to prove intent, or lack of mistake. Awaiting the rebuttal case enables the court to confirm the defense will actually be offered, and to assess the contours of the defense, which informs the court's decision regarding the relevance of the 404(b) evidence, and whether the risk of undue prejudice outweighs its probative value. 

STATE OF NEW JERSEY VS. SHERRONE H. ROBINSON A-5490-12T4

STATE OF NEW JERSEY VS. SHERRONE H. ROBINSON 
A-5490-12T4 
This appeal calls upon us to determine the proper sentence that survives merger of defendant's two convictions. Defendant pled guilty to second-degree burglary, N.J.S.A. 2C:18-2, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Pursuant to the negotiated plea agreement, defendant was sentenced to a four-year prison term on the burglary charge, subject to an eighty-five percent parole ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent five-year prison term on the weapon offense, subject to a mandatory minimum term of three years under the Graves Act, N.J.S.A. 2C:43-6(c). 

Defendant appealed, arguing that the convictions should merge since the sole intended purpose of the weapon involved commission of the burglary. Defendant further argues that, upon merger, the burglary sentence should survive and the sentence on the weapon offense should be vacated. The State agrees that merger is appropriate, but that the most severe aspect of each sentence should survive. On the specific facts of this case, we conclude that imposing the more severe aspects of the sentence for each offense is consistent with the plea agreement. Accordingly, on the merged convictions, defendant's sentence shall be modified to a five-year term of imprisonment, of which four years shall 
be subject to an eighty-five percent parole ineligibility period under NERA

STATE OF NEW JERSEY VS. GREGORY MAURER A-3527-13T2

STATE OF NEW JERSEY VS. GREGORY MAURER 
A-3527-13T2 
In this appeal we reversed the Law Division's denial of defendant's appeal from the prosecutor's rejection of his application for "Track Two" sentencing into Drug Court for CDS offenses. In rejecting defendant's appeal, the Law Division relied solely on defendant's prior conviction for a weapons crime, which the judge found rendered him ineligible, pursuant to the guidelines set forth in the Administrative Office of the Courts' "Manual for Operation of Adult Drug Courts in New Jersey" (July 2002). 

We considered the history of New Jersey's successful Drug Court program, the application of the Manual's guidelines, and the Drug Court Statute, N.J.S.A. 2C:35-14 as recently amended. Having done so, we determined barring defendant from consideration for Drug Court was unfair and, if permitted, would constitute disparate sentencing because "Track One" offenders as facing sentencing for crimes such as second-degree robbery could be considered for entry into Drug Court but defendant could not. We therefore, reversed the Law Division's order and remanded the matter for further consideration of defendant's application, including the extent of his drug addiction, if any, and his dangerousness, including his criminal history, as provided for in the Drug Court Manual for "Track Two" offenders.  

DWI offenses separated by more than ten years are eligible for “step-down” provision. State v. Revie

DWI offenses separated by more than ten years are eligible for “step-down” provision. State v. Revie __ NJ __ (2014) A-31-13

The N.J.S.A. 39:4-50(a)(3) “step-down” provision can benefit a DWI offender more than once, provided that the defendant’s most recent and current DWI offenses are separated by more than ten years.  In this case, defendant should be sentenced as a second DWI offender with respect to any term of incarceration imposed, and as a third DWI offender with respect to the applicable administrative penalties.

State v. Joseph M. Jaffe (A-12-13

State v. Joseph M. Jaffe (A-12-13

Because a sentencing analysis is a fact-sensitive inquiry, which must be based on consideration of all the competent and credible evidence raised by the parties at sentencing, the trial court must consider evidence of a defendant’s post-offense conduct. This matter is remanded for resentencing to ensure consideration of all of the facts relevant to the applicable aggravating and mitigating factors. 

State v. Kelvin Williams (A-8-12)

State v. Kelvin Williams (A-8-12)
To find a defendant guilty of first-degree robbery in a simulated deadly-weapon case, the victim must have an actual and reasonable belief that the defendant threatened the immediate use of such a weapon, which factfinders must ascertain through application of a totality-of-the-circumstances standard, which includes consideration of the nature of any verbal threat, the defendant’s conduct, his dress, and any other relevant factors. Applying that standard here, defendant’s words, conduct, and clothing provided sufficient evidence for a reasonable jury to convict defendant of first-degree robbery.