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

visit Website www.njlaws.com

Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500

April 22, 2014

N.B. VS. S.K. A-0898-12T4/A-0899-

N.B. VS. S.K.
          A-0898-12T4/A-0899-12T4(CONSOLIDATED)
In 2002, plaintiff obtained a domestic violence final restraining order (FRO) against her husband, but agreed in 2003 to its vacation when the parties settled their matrimonial disputes; they then agreed to replace their respective FROs with mutual restraints in the divorce action. In 2012, after years during which the matrimonial restraints proved ineffectual in preventing defendant from attempting to communicate with plaintiff, plaintiff filed a domestic violence action alleging harassment when defendant repeatedly called a telephone that the matrimonial restraints barred him from calling. The trial judge excluded plaintiff's evidence of defendant's prior failures to comply with the matrimonial restraints and granted an involuntary dismissal on the ground that a violation of a matrimonial order cannot constitute an act of domestic violence. The court reversed, holding that defendant's past violations of the matrimonial restraints were relevant in that they provided an understanding of why plaintiff would be alarmed or seriously annoyed by what otherwise seemed to be innocuous communications.
In the separate but related appeal, the court affirmed the denial of plaintiff's subsequent motion to vacate the
page4image20008 page4image20168 page4image203282003 order, which vacated the original FRO, solely because plaintiff failed to seek relief within a reasonable period of time. 03/24/14  

STATE OF NEW JERSEY VS. KEENAN OGLETREE, JR. A-2081-12T2

STATE OF NEW JERSEY VS. KEENAN OGLETREE, JR.
          A-2081-12T2
In this appeal, defendant argued he was wrongfully denied 246 days of gap-time credit, which represented the time from his incarceration for a violation of probation until his sentence in later matters. The court agreed and reversed, holding that even though, in the earlier matter, defendant was incarcerated as a condition of probation for 120 days in the county jail, that jail condition did not
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constitute "imprisonment" within the meaning of the gap- time credit statute, N.J.S.A. 2C:44-5(b)(2). The court observed that application of a broader meaning of the word "imprisonment" in this setting would lead to the incongruous result that a probationary term conditioned on even a single day in the county jail would disqualify an award of gap-time credit when imprisonment was later imposed following a violation of probation, whereas a probationary term without such a condition would not. 03/20/14  

IN THE MATTER OF FREDDIE B. FRAZIER, DEPARTMENT OF CORRECTIONS A-3099-11T3


IN THE MATTER OF FREDDIE B. FRAZIER, DEPARTMENT OF CORRECTIONS
A-3099-11T3
After extensive litigation resulting in one prior published and one unpublished appellate opinion, we determine that a Senior Correction Officer was properly removed from his position, which requires the ability to use a gun, because he was convicted in 2000 of a disorderly persons offense involving domestic violence. A 2004 amendment to N.J.S.A. 2C:39-7(b)(2) makes it a third-degree crime for a person convicted of an offense involving domestic violence to possess or carry a gun. We hold that this statute applies to Frazier and reject his arguments that his removal is barred by res judicata, collateral estoppel, the entire controversy doctrine or ex post facto prohibitions. 3/14/14 

April 21, 2014

State v. Carlos Bolvito

State v. Carlos Bolvito (A-44-12; 071493)
          A sentencing court may impose the mandatory Sex Crime
          Victim Treatment Fund penalty in any amount between a
          nominal figure and the upper limit prescribed by
          N.J.S.A. 2C:14-10(a) for the degree of the offense at
          issue.  In setting the penalty, the sentencing court
          should (1) consider the nature of the offense and the
          defendant’s ability to pay the penalty during any
          custodial sentence imposed and after his or her
          release, and (2) provide a statement of reasons as to
          the amount of any penalty. 3-31-14   

State v. Edward Ronald Ates


State v. Edward Ronald Ates (A-52-12; 070926)
          New Jersey’s Wiretap Act is constitutional under both
          the federal and state constitutions. The Legislature’s
          focus on the “point of interception” is a rational
          approach because the inherent mobility of cell phones
          would make it impractical, if not impossible in some
          instances, for law enforcement to intercept cell phone
          conversations if agents could only rely on orders
          issued in the state where a call was placed or
          received. 3-18-14   
      In this appeal, the Court considers whether the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1 to -37, is unconstitutional because it allows law enforcement officers in New Jersey to intercept conversations between individuals located outside of New Jersey.

Defendant Edward Ronald Ates, who lived in Florida and had family in Florida and Louisiana, was arrested and charged with the murder of his former son-in-law in Ramsey, New Jersey. As part of the criminal investigation, a New Jersey wiretap judge authorized wiretaps on six telephone numbers assigned to and known to be used by defendant and his family members. The telephone numbers consisted of five cell phones and one landline phone. Law enforcement officers monitored all of the wiretaps from New Jersey. Prior to trial, defendant moved to suppress conversations that involved himself, a Florida resident, his wife, another Florida resident, his mother, a Louisiana resident, and his sister, who lived in both Florida and Louisiana. Defendant claimed that the wiretap orders were “extraterritorial” and that New Jersey officials should have asked the proper authorities in Florida and Louisiana to consent to the wiretaps. Defendant also asserted that the Wiretap Act should be declared unconstitutional because it permits New Jersey authorities to act outside their jurisdiction and wiretap individuals with no connection to New Jersey. The trial court denied the motion, concluding that the Act constitutionally permits intercepting and monitoring out-of-state communications in New Jersey. The jury found defendant guilty.

The Appellate Division affirmed defendant’s conviction. State v. Ates, 426 N.J. Super. 521 (App. Div. 2012). The panel rejected defendant’s argument about the Act’s “extraterritorial” reach and noted that the statute “requires a nexus with New Jersey by insisting that, at the very least, the listening post be located in New Jersey.” Id. at 533. The panel observed, “this does not ‘usurp [f]ederal authority’ because federal law permits the same thing.” Ibid. The panel also rejected defendant’s other arguments: that the trial court imposed an inadequate remedy for the State’s unlawful interception of an attorney-client conversation; that the prosecutor made improper remarks during summation about a defense medical expert; that it was prejudicial error to admit in evidence a reenactment of a drive from New Jersey to Louisiana; and that the cumulative effect of the above errors required reversal. Id. at 531, 534-38. The Court granted defendant’s petition for certification. 213N.J. 389 (2013).

HELD: New Jersey’s Wiretap Act is constitutional under both the federal and state constitutions. The Legislature’s focus on the “point of interception” is a rational approach because the inherent mobility of cell phones would make it impractical, if not impossible in some instances, for law enforcement to intercept cell phone conversations if agents could only rely on orders issued in the state where a call was placed or received.

1. The United States and New Jersey Constitutions’ protections against unreasonable searches and seizures extend to the interception of phone conversations. In 1967, the United States Supreme Court issued two landmark opinions that addressed electronic surveillance of phone conversations under the Fourth Amendment and outlined principles to safeguard individual privacy rights in that area. See Berger v. New York, 388 U.S. 41 (1967); Katz v. United States, 389 U.S. 347 (1967). Congress responded the following year by enacting Title III of the Omnibus Crime and Safe Streets Act, 18 U.S.C.A. §§ 2510–2520, which established minimum standards for federal and state law enforcement officials to follow when seeking to intercept wire, oral, and electronic communications. In 1968, the New Jersey Legislature enacted the Wiretap Act and modeled it after Title III. 

2. The Wiretap Act empowers the State to apply to a judge for an order authorizing law enforcement officers, who are investigating particular crimes, to intercept wire, electronic, and oral communications. N.J.S.A. 2A:156A-8. Before judges can enter a wiretap order, they must find probable cause to believe (1) that a listed, serious offense under New Jersey law has been, is being, or will be committed; (2) that communications about the criminal activity in New Jersey may be obtained through the interception; and (3) that normal investigative procedures have failed, are unlikely to succeed, or are too dangerous. N.J.S.A. 2A:156A-10a-c. An “intercept” is “the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device.”N.J.S.A. 2A:156A-2c. A wiretap order “may be executed at any point of interception within the jurisdiction of an investigative or law enforcement officer executing the order.” N.J.S.A. 2A:156A-12h. A “point of interception” is the site where the “officer is located at the time the interception is made” -- commonly referred to as the “listening post.” N.J.S.A. 2A:156A-2v. The plain language of the Wiretap Act thus authorizes investigators to intercept out-of-state calls at a listening post in New Jersey. 

3. Because the State can only prosecute crimes that occur within its territorial borders, the first two findings that a judge must make before issuing a wiretap order connect the interception of communications to activity in New Jersey. See N.J.S.A. 2A:156A-10a-b. In addition, the Act requires that the listening post be located within New Jersey. See N.J.S.A. 2A:156A-12h. Therefore, the Wiretap Act does not unconstitutionally permit the interception of communications with no connection to New Jersey.  
4. Because the Wiretap Act is closely modeled after Title III, the Court gives careful consideration to federal decisions interpreting the federal statute. Federal circuit courts have consistently upheld wiretaps based on the location of the listening post, and no circuit court has found Title III unconstitutional on that ground. For example, in United States v. Rodriguez, 968 F.2d 130 (2d Cir.), cert. denied, 506 U.S. 847 (1992), the Second Circuit found that because Title III defines interception as the “aural” acquisition of the contents of the call, and because “aural,” by definition, “‘pertain[s] to the ear or the sense of hearing,’” the place of interception could be where the police first monitored or listened to the communication. Id. at 136. (citation omitted). The court in Rodriguez also noted that allowing a court where the listening post is located to authorize wiretaps in multiple jurisdictions helps protect individual privacy rights by avoiding unnecessary or unnecessarily long interceptions. Id. (citations omitted). Other federal courts have followed Rodriguez and held that judges can authorize wiretaps when the listening post -- and thus the interception -- is within the court’s jurisdiction, even if the phone is located elsewhere. The majority of courts that have interpreted state wiretap laws also agree. For example, in Davis v. State, 43 A.3d 1044 (Md. 2012), Maryland’s highest court upheld a wiretap order allowing officials in Maryland to monitor a cell phone located in Virginia, finding that if the listening post is located within the wiretap court’s territorial jurisdiction, then “neither the physical location of the mobile phone at the time the call was placed” nor “the recipient of the call are material.” Id. at 1048. The Maryland court also noted that a different outcome would present “an enormous logistical and technological challenge to law enforcement” officials if an investigation involved a cell phone that crossed state lines. Id. at 1054. The Court agrees with the many federal and state courts that have allowed judges in the state where the listening post is located to authorize a wiretap.  
5. Drawing an analogy to the requirements for searching a home, defendant contends that law enforcement officers must seek a search warrant from a judge in the state where the phones are located. There are obvious differences between searching a fixed location, like a home, and intercepting a phone call on a mobile phone. If out-of-state intercepts could only be authorized by a judge in the jurisdiction where the phones are located, then the inherent mobility of the modern cell phone could defeat even the most responsible efforts to monitor it. In short, defendant’s reading of the Act would make it impractical to intercept cell phone conversations. Viewed in that light, the Act’s definition of “point of interception” -- the site where an officer is located when an interception is made, N.J.S.A. 2A:156A-2v -- makes rational sense. In addition, defendant’s privacy rights were not violated because a New Jersey judge, rather than judges in the states where the phones were located, reviewed his wiretap applications. Defendant’s rights would be protected if the applications were reviewed in New Jersey, Florida, or Louisiana because judges in each state must ensure that there is an adequate basis for issuing a wiretap order. At a minimum, the applications would have to meet the requirements of Title III. 

6. As to defendant’s several other challenges, the Court affirms substantially for the reasons stated in the Appellate Division’s opinion.Ates, 426 N.J. Super. at 534-38. 

State in the Interest of K.O., a minor


State in the Interest of K.O., a minor (A-28-12;
          070406)
          N.J.S.A. 2A:4A-44(d)(3) requires two separate previous
          predicate adjudications for the imposition of an
          extended-term sentence on a juvenile, including one
          that resulted in a juvenile or adult facility,
          exclusive of the adjudication for which the
          disposition court is sentencing the juvenile. 2-24-14   

April 3, 2014

transcript for driving-while-intoxicated cases are hereby relaxed


SUPREME COURT OF NEW JERSEY
It is ORDERED, pursuant to N.J. Const., Art. VI, sec. 2, par. 3, that effective immediately the provisions of Rules 3:5-3(b) and 3:5-5(b) of the Rules Governing the Courts of the State of New Jersey that require that a transcript be made, that the judge certify the transcript, or that the affiant sign the transcript in connection with the issuance of search warrants by telephone, radio or other means of electronic communication for nonconsensual blood testing in driving-while-intoxicated cases are hereby relaxed so as not to be mandatory.
This will supplement the Order dated October 8, 2013 and shall continue in effect until further Order of the Court.
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Dated: March 4, 2014