Spring 2019 NJ Municipal Court Law Review
Index
1. Police can’t detain occupants on noise complaint State v Chisum
2. Guilty finding vacated based on state failure to provide evidenceState v. Brown
3. Refusal to let police into home is not criminal interference State v. Fede
4 Miranda violated here where detectives failed to advise subject of charges State v. Vincenty
5. Chief Justice Orders Special Master in the DWI cases involving the trooper who did not conduct correct tests.State v. Cassidy
6. Company & lawyer can’t use criminal prosecution for civil benefit In the Matter of Helmer
7. Drug court grads entitled to presumption of expungement IMO the Expungement of the Arrest/Charge Records of T.B
8. Annual Jersey Shore Happy Hour & Networking Social
July 12, 2019
9. Photos
Handling Drug, DWI and Serious Cases in Municipal Court Seminar p1
Photo NJSBA President John Keefe Jr. and Ken V at NJ Bar meeting Rome p2
Bob Carlson ABA president at ABA meeting Las Vegas p3
Judy Perry Martinez ABA President Elect at ABA meeting Las Vegas p3
Jack Canfield Best selling author Chicken Soup for Soul and Ken Vercammen ABA Author at Charleston Leadership conference p4
1. Police can’t detain occupants on noise complaint State v Chisum
Once the renter of the motel room lowered the volume of the music and the police declined to issue summonses, the police no longer had any reasonable suspicion that would justify the continued detention of the room’s occupants. Once the noise was abated, the police no longer had an independent basis to detain the occupants, or a basis to run warrant checks on them. Such action was unlawful. And because the detention and warrant checks were unlawful, the subsequent pat down of Woodard was also improper. The judgment of the Appellate Division is therefore reversed, and the matter is remanded to the trial court for the withdrawal of defendants’ guilty pleas and further proceedings. (A-35-17/A-36-17; 079823/079835)
2. Guilty finding vacated based on state failure to provide evidenceState v. Brown
The State’s failure to produce nineteen discovery items until one week after the beginning of defendants’ murder trial did violate defendants’ due process rights under Brady. The Court reaches this conclusion, in part, because the trial court abused its discretion by excluding admissible impeachment and exculpatory evidence withheld by the State. Though there is no evidence or allegation that the State acted in bad faith or intentionally in failing to timely produce the discoverable material, the Court nonetheless vacates defendants’ convictions and remands for a new trial because defendants were deprived of a fair trial. A-23-17/A-24-17; 079553/079556)
3. Refusal to let police into home is not criminal interference State v. Fede
The Court stresses that the police officers had the right to enter defendant’s home under the emergency-aid doctrine, which permits warrantless entry under circumstances like those presented in this case. Because defendant’s refusal to remove the door chain did not constitute an affirmative interference for purposes of obstructing justice within the meaning of the obstruction statute, the Court reverses the judgment of the Appellate Division and vacates defendant’s conviction. (A-53-17)
4 Miranda violated here where detectives failed to advise subject of charges State v. Vincenty__ NJ __ (2019)
The record reveals that the detectives failed to inform Vincenty of the charges filed against him when they read him his rights and asked him to waive his right against self-incrimination. That failure deprived Vincenty of the ability to knowingly and intelligently waive his right against self-incrimination. Pursuant to A.G.D., Vincenty’s motion to suppress should have been granted. (A-40-17;
5. Chief Justice Orders Special Master in the DWI cases involving the trooper who did not conduct correct tests.State v. Cassidy
WHEREAS the Court in State v. Cassidy(A-58-16) issued a decision on November 13, 2018 holding that Alcotest results from machines calibrated without using a thermometer that produces NIST-traceable temperature readings in the calibration process are inadmissible as evidence; and
WHEREAS the Administrative Office of the Courts previously had been notified by the New Jersey Office of the Attorney General that evidential breath samples from defendants in 20,667 driving while intoxicated (DWI) cases were procured using Alcotest machines calibrated without using a NIST-traceable thermometer and over 1 3,000 of those cases involved findings of guilty, either by trial or by plea;
……..IT IS ORDERED pursuant to N.J. Const. (1947) Art. 6, S 2, 3, that, effective immediately and until further order, Superior Court Judge Robert A. Fall, retired and serving on recall, in addition to any other judicial assignment on recall, is hereby designated as the special master with judicial authority on a statewide basis to make judicial and administrative decisions relating to adjudicated cases in which evidential breath samples were procured using Alcotest machines calibrated without using a NIST-traceable thermometer; and
…….. It is FURTHER ORDERED that this designation of Judge Fall as special master shall last until further order, with Judge Fall being asked to report to the Court as soon as practicable, and regularly thereafter, on the issue of whether statewide management of the subject issues remains beneficial and in the public interest or whether the cases would be better managed at the vicinage and/or municipal level.
6. Lawyer can’t use criminal prosecution for civil benefit In the Matter of Helmer
RPC 3.4(g) provides that “a lawyer shall not present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.” The Complaint asserted multiple grounds for the charged violation including Helmer’s entering into a retainer arrangement in which his fee was partly contingent upon payment of restitution; his meeting with Branco, Walters, Matlock, and NFI’s general counsel to press for a criminal prosecution after a declination; Helmer’s participation in drafting the indictment; his testimony before the grand jury; and his influencing Branco and Walters to seek high bail, have the indictment sealed, and arrest Land and Pessiki during a civil mediation session.
RPC 8.4(a) provides that “it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct.” RPC 8.4(d) states that “[i]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.” The Complaint asserted that Helmer’s “actions to collect money utilizing the criminal process on behalf of NFI . . . would have impacted the administration of justice in the criminal, civil and bankruptcy cases.”
Victims can pursue restitution in both the civil and criminal arenas. One challenge practitioners face is to refrain from presenting or threatening “to present criminal charges to obtain an improper advantage in a civil matter.” RPC 3.4(g). Heightened care is needed to navigate potential pitfalls in that area. In this case, though, the core issue is not whether private counsel could pursue restitution through the criminal process but rather the manner in which he sought to do so. Helmer’s conduct here pushed the envelope. Although he actively encouraged a criminal prosecution and advocated for restitution for his client, to place primary responsibility on Helmer for what occurred overlooks the role and decision-making authority of the prosecution team.
The burden of proof in disciplinary matters is clear and convincing evidence. R. 2:15- 15(a). In addition, when a violation of RPC 8.4(d) is the sole basis for discipline, a particularly high level of proof is required. The proceedings in this matter did not follow best practices and were troubling in a number of respects. Nonetheless, the Court did not find clear and convincing evidence that Helmer’s conduct violated RPC 8.4(d).
7. Drug court grads entitled to presumption of expungement
IMO the Expungement of the Arrest/Charge Records of T.B
The plain language of the 2016 drug court expungement statute requires judges to determine whether expungement would be consistent with the public interest. N.J.S.A. 2C:35-14(m)(2); id. § 52-2(c)(3). Successful graduates who have committed certain offenses and apply for expungement are entitled to a rebuttable presumption that expungement is consistent with the public interest. (A-18/19/
8. Annual Jersey Shore Happy Hour & Networking Social
July 12, 2019
Professionals, Attorneys, Law Enforcement invited to Happy Hour & Networking Social. Free for all
at Bar Anticipation 703 16th Ave. Lake Como/ Belmar, NJ 07719
5:30-7:55PM Hot & Cold Buffet
The reduced price Happy Hour is 6-7PM is $2.00 House Drinks, House Wine Bud/BudLt draft. Co-sponsored by NJ State Bar Association Municipal Court Section, Retired Police Middlesex Monmouth Local 9 & several other organizations
Outdoor & Indoor music, prize giveaways. Bring your friends. Pass this along. Please bring a canned food donation for a community food bank, continuing to provide food and help to individuals in need.
Email Ken Vercammen's Law Office so we can put your name on the VIP list for wristbands. VercammenLaw@Njlaws.com
If your group, non-profit or organization wishes to co-sponsor the networking happy hour, please contact KENNETH VERCAMMEN, Esq.
Free Office Space for Transitional or New Attorney and work with Metuchen Public Defender and go to Court & Mentor program- Edison, NJ
The Metuchen Public Defender Kenneth Vercammen has a space sharing opportunity for new lawyer or recent Transitional attorney to get experience and go to court and learn NJ Law office procedures and handle some Municipal court cases. This is a mentoring experience where you can learn NJ Law Office Procedure.
Help handle Wednesday night 5:15 -7:55pm Metuchen Municipal Court matters and two Friday mornings per month.
Attorney will be provided with use of desk, plus if needed additional private office space in furnished basement to start their practice, rent-free. They can see clients in first floor office rooms. In return they will handle municipal court appearances, Telephone communications with courts, prosecutors, clients, etc, Will signings and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week.
-Call Courts to follow up on Letter of Representation and scheduling of hearings & call Police Departments to follow up on discovery
- Prepare timesheets on Fatal Accident cases
-Call clients and remind them of hearing dates and what to do
- Update Criminal and Civil blogs with recent cases
-Assist at Senior citizen Will Seminars and Municipal Court programs
Go to court and get court experience. Excellent opportunity to jump-start your career. You will get to represent people in Municipal Courts in Middlesex, Union and Monmouth County and meet the top Prosecutors and Judges. Must be admitted in NJ and have a car.
https://www.njlaws.com/office_space.html
Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans and public defender clients. Follow up contact calls with clients, courts, prosecutors and bar associations.
Excellent mentoring position for the right attorney. Are you hardworking and aggressive? Visit our website: www.njlaws.comto learn about our office. More details at www.njlaws.com/lease.htm
If interested, fax, mail , fax or email a resume and cover letter.
KENNETH VERCAMMEN, Esq. Metuchen Public Defender
2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500
(Fax) 732-572-0030 vercammenlaw@njlaws.com
__________________________________________
The following is included with office use:
Desk space
Reception room for clients and use as Bona Fide Office
You can copy and use our Complaints, Motions, Form Letters and Pleadings.
Use our marketing books, marketing CDs, Criminal, Municipal Court and Elder law audiotapes and video library now located in basement
Use of our computer forms Motions, Complaints, and Form letters
Ability to use a file cabinet in basement to store your old files
Lighting/ Utilities
Bathroom Supplies
Landscaping / Snow Removal
Valuable advice
Hot water, municipal water/sewer charge paid
Other Duties/ Services to Clients
- Help add our 900+ criminal articles and statutes to our new criminal articles blog [We will teach you how to add articles to Blogs]
-Prepare Police Chief letters
- Whatever else needed to assist clients [ex Motions, ]
N.J. Municipal Court - Law Review SUBSCRIPTION INFO
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. Municipal Court and criminal law attorneys may also be interested in the ABA’s CRIMINAL LAW FORMSbook
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Kenneth Vercammenis an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's award winning book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association. As the Past Chair of the Municipal Court Section he has served on its board for 10 years.
Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.
Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine. He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.
For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.
His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings. Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.
Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4thdegree black belt.
KENNETH VERCAMMEN
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
