Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.

To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box www.njlaws.com.

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500

Wednesday, February 19, 2020

Diseased Person Committing An Act Of Sexual Penetration

Diseased Person Committing An Act Of Sexual Penetration

DISEASED PERSON COMMITTING AN ACT OF SEXUAL PENETRATION
N.J.S.A.2C:34-5(b)model jury charge

(Defendant) is charged with committing an act of sexual penetration while infected with a specific virus.The indictment charging this offense reads:

[READ INDICTMENT]

The statute prohibiting this conduct provides, in pertinent part:

A person is guilty of a crime [if he/she ], knowing that he or she is infected with human immune deficiency virus (HIV) or any other related virus identified as a probable causative agent of acquired immune deficiency syndrome (AIDS), commits an act of sexual penetration without the informed consent of the other person.

For (defendant) to be guilty of this crime, the State must prove each of the following elements beyond a reasonable doubt: First, that, at the time charged in the indictment, (defendant) was infected with [CHOOSE AS APPROPRIATE:human immune deficiency virus (HIV) or any other related virus identified as a probable causative agent of acquired immune deficiency syndrome (AIDS)]. Second, that, at that time, (defendant) knew that he/she was so infected; Third, that, at the time, (defendant) committed an act of sexual penetration with (another person); Fourth, that (that other person) did not provide (defendant) with his/her informed consent. The first element that the State must prove beyond a reasonable doubt is that (defendant) was infected with human immune deficiency virus or any other related virus identified as a probable causative agent of acquired immune deficiency syndrome. The second element that the State must prove beyond a reasonable doubt is that (defendant) knew that he/she was so infected.A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of a high probability of their existence.A person acts knowingly with respect to a result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result.Knowing, with knowledge, and other equivalent terms have the same meaning.

Knowing is a state of mind.It cannot be seen.Often, it can be proved only by inference drawn from conduct, words, and acts, as well as surrounding circumstances.Therefore, it is not necessary that the State present testimony that (defendant) said that he/she had a certain state of mind when he/she did something.It is within your power to find that such proof has been furnished beyond a reasonable doubt by inferences which may arise from the nature of (defendants) acts and conduct, from all that he/she said and did at the particular time and place, and from all surrounding circumstances.

The third element that the State must prove beyond a reasonable doubt is that (defendant) engaged in sexual penetration with another person.Sexual penetration means [SELECT APPROPRIATE TERMS:vaginal intercourse, cunnilingus

[1]

, fellatio
[2]

, anal intercourse, or the insertion of the hand, finger, or object into the anus or vagina by (defendant) [WHERE APPROPRIATE ADD:or at his/her instruction]].Any amount of insertion, however slight, constitutes penetration; the depth of the insertion is not relevant.

The fourth element that the State must prove beyond a reasonable doubt is that (defendant) so acted without having the informed consent of the other person.Informed consent means the persons voluntary and knowing agreement to submit to an act of sexual penetration with a person having [the specified virus].The State must prove beyond a reasonable doubt that (the other person) was not informed of [the specified virus] with which (defendant) was infected.

If the State has proved each of these elements beyond a reasonable doubt, your verdict must be guilty of this charge. If, on the other hand, the State has failed to prove any of these elements beyond a reasonable doubt, your verdict must be not guilty.

[1]Cunnilingus, oral stimulation of the female sexual organ, is a form of sexual penetration even if one does not insert his/her tongue into the others vagina.

[2]Fellatio, oral stimulation of the male sexual organ, is a form of sexual penetration even if ones penis does not enter the others mouth.Placing the mouth of another person on the penis constitutes fellatio.

Discovery and Obtaining Police Reports in Criminal Cases

Kenneth Vercammen's Law office represents people charged with criminal offenses and disorderly offenses. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted, you can face high fines, jail, probation and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal violations. Our website KennethVercammen.com provides information on criminal offenses. We can be retained to represent people.

Under the New Jersey Court Rules, a New Jersey Attorney can obtain discovery and police reports from the Prosecutor.

We can appear in court for you on most Central New Jersey criminal and traffic violations.

The law entitles criminal and drunk driving defendants to pre trial discovery. R.3:13 3; R.7:4 2(h); State v. Young, 242 N.J. Super. 467, 470 (App. Div. 1990); State v. Ford, 240 N.J. Super. 44, 48 (App. Div. 1990); State v. Utsch, 184 N.J. Super. 575, 579 (App. Div. 1982). Due process requires the State disclose evidence that is material to either guilt or punishment; indeed, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise reasonable doubt about a defendant's guilt. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United States v. Agurs, 427 U.S. 97, 98 S.Ct. 2392, 49 L.Ed. 2d 342 (1976). A wide variety of materials in the State's possession could constitute exculpatory information to which a defendant is entitled. Ford, supra at 52 A demand for discovery has been served upon the prosecutor who has the responsibility to answer. State v. Tull, 234 N.J. Super. 486, 494 (Law Div. 1989). A defendant's right to discovery is not dependent upon an appraisal of the beneficial value of the material sought to be discovered. State v. Polito, 116 N.J. Super. 552 (App. Div. 1977), Ford, supra at 51). Thus, a prosecutor is expected to act reasonably when responding to a discovery demand. Tull, supra at 496. The prosecutor may not refuse a discovery demand simply because the information or materials sought are not in the municipal offices or within easy reach. Id. at 495. The municipal prosecutor cannot refuse production on the ground that the requested information is not known by the prosecutor personally to be in existence when its existence is either common knowledge of the police department or when the knowledge could be obtained by reasonable inquiry. Id. at 500.

The municipal prosecutor must either object to what the prosecutor perceives to be irrelevant discovery requests, or respond within 10 days of the receipt of the defendant's request for discovery. Ford supra at 51; see Tull, supra at 500.

The municipal prosecutor may be sanctioned for failing to provide discovery. R.3:13 ; see State v. Audette, 201 N.J. Super. 410 (App. Div. 1985) State v. Polasky, 216 N.J. Super. 549 (Law Div. 1986). A defendant who believes the State has not supplied relevant materials reasonably required for the defense may give notice to the State and the court prior to the date set for commencement of trial where possible. Ford, supra at 52. Information relating to prerequisite conditions establishing reliability is highly relevant, Ford, supra at 52 and extremely material. Id. at 51. Thus , information concerning conditions under which tests were held, the machine operator's competence, the particular machine's state of repair and identification, and documentation of the ampoule used for defendant's breath tests are all relevant inquiries. Id.

Discovery in the Municipal Court Court Rule 7:7-7. Discovery and Inspection

(a) Scope. If the government is represented by the municipal or a private prosecutor, discovery shall be available to the parties only as provided by this rule, unless the court otherwise orders. In the absence of a municipal or private prosecutor, discovery shall be available to the parties in the manner directed by the court. All discovery requests by defendant shall be served on the municipal prosecutor, who shall be responsible for making government discovery available to the defendant. If the matter is, however, not being prosecuted by the municipal prosecutor, the municipal prosecutor shall transmit defendant's discovery requests to the prosecutor, or, if there is no prosecutor, the municipal prosecutor shall transmit defendant's court ordered discovery requests to the complaining witness.

(b) Discovery by Defendant. In all cases involving a consequence of magnitude or when ordered by the court, the defendant, on written notice to the municipal prosecutor or private prosecutor, shall be allowed to inspect, copy, and photograph or to be provided with copies of any relevant:

(1) books, tangible objects, papers or documents obtained from or belonging to the defendant;

(2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded;

(3) grand jury proceedings recorded pursuant to R. 3:6-6;

(4) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies of these results or reports, that are within the possession, custody or control of the prosecuting attorney;

(5) reports or records of defendant's prior convictions;

(6) books, originals or copies of papers and documents, or tangible objects, buildings or places that are within the possession, custody or control of the government;

(7) names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information, including a designation by the prosecuting attorney as to which of those persons the prosecuting attorney may call as witnesses;

(8) record of statements, signed or unsigned, by the persons described by subsection (7) of this rule or by co-defendants within the possession, custody or control of the prosecuting attorney, and any relevant record of prior conviction of those persons;

(9) police reports that are within the possession, custody or control of the prosecuting attorney;

(10) warrants, that have been completely executed, and any papers accompanying them, as described by R. 7:5-1(a);

(11) the names and addresses of each person whom the prosecuting attorney expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of the expert witness, or if no report was prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. If this information is requested and not furnished, the expert witness may, upon application by the defendant, be barred from testifying at trial.

(c) Discovery by the State. In all cases involving a consequence of magnitude or when ordered by the court, the municipal prosecutor or private prosecutor, on written notice to the defendant, shall be allowed to inspect, copy, and photograph or to be provided with copies of any relevant:

(1) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies of these results or reports within the possession, custody or control of the defendant or defense counsel;

(2) any relevant books, originals or copies of papers and other documents or tangible objects, buildings or places within the possession, custody or control of the defendant or defense counsel;

(3) the names and addresses of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements;

(4) written statements, if any, including any memoranda reporting or summarizing the oral statements, made by any witnesses whom the government may call as a witness at trial; and

(5) the names and addresses of each person whom the defense expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, and a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. If this information is requested and not furnished, the expert may, upon application by the prosecuting attorney, be barred from testifying at trial.

(d) Documents Not Subject to Discovery. This rule does not require discovery of a party's work product, consisting of internal reports, memoranda or documents made by that party or by that party's attorney or agents, in connection with the investigation, prosecution or defense of the matter. Nor does it require discovery by the government of records or statements, signed or unsigned, by defendant made to defendant's attorney or agents.

(e) Protective Orders.

(1) Grounds. Upon motion and for good cause shown, the court may at any time order that the discovery or inspection, copying or photographing sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; protection of confidential relationships and privileges recognized by law; and any other relevant considerations.

(2) Procedures. The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone. If the court enters a protective order, the entire text of the statement shall be sealed and preserved in the court's records, to be made available only to the appellate court in the event of an appeal.

(f) Time and Procedure. A defense request for discovery shall be made contemporaneously with the entry of appearance by the defendant's attorney, who shall submit a copy of the appearance directly to the municipal prosecutor. If the defendant is pro se, any requests for discovery shall be made in writing and submitted by the defendant directly to the municipal prosecutor. The municipal prosecutor shall respond to the discovery request in accordance with paragraph (b) of this rule within 10 days after receiving the request.

Unless otherwise ordered by the judge, the defendant shall provide the government with discovery, as provided by paragraph (c) of this rule within 20 days of the prosecuting attorney's compliance with the defendant's discovery request.

(g) Continuing Duty to Disclose; Failure to Comply. If a party who has complied with this rule discovers, either before or during trial, additional material or names of witnesses previously requested or ordered subject to discovery or inspection, that party shall promptly notify the other party or that party's attorney of the existence of these additional materials and witnesses. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order that party to permit the discovery, inspection, copying or photographing of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems appropriate.

7:7-8. Form of Subpoena

In cases involving non-indictable offenses, the law enforcement officer may issue and serve subpoenas to testify in the form prescribed by the Administrative Director of the Courts. Courts having jurisdiction over such offenses, the Division of State Police, the Division of Motor Vehicles and any other agency so authorized by the Administrative Director of the Courts may supply subpoena forms to their law enforcement officers. After service of a subpoena,

DISCOVERY IN INDICTABLE CRIMINAL CASES [FELONY LEVEL IN NEW YORK] Court Rule 3:13-3. Discovery and Inspection

(a) Pre-indictment Discovery. Where the prosecutor has made a pre-indictment plea offer, the prosecutor shall upon request permit defense counsel to inspect and copy or photograph any relevant material which would be discoverable following an indictment pursuant to section (b) or (c). (b) Post Indictment Discovery. A copy of the prosecutor's discovery shall be delivered to the criminal division manager's office, or shall be available at the prosecutor's office, within 14 days of the return or unsealing of the indictment. Defense counsel shall obtain a copy of the discovery from the criminal division manager's office, or the prosecutor's office, no later than 28 days after the return or unsealing of the indictment. A defendant who does not seek discovery from the State shall so notify the criminal division manager's office and the prosecutor, and the defendant need not provide discovery to the State pursuant to sections (d) or (g), except as required by Rule 3:12-1 or otherwise required by law. Defense counsel will forward a copy of discovery materials to the prosecuting attorney no later than 7 days before the arraignment/status conference. (c) Discovery by the Defendant. The prosecutor shall permit defendant to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b): (1) books, tangible objects, papers or documents obtained from or belonging to the defendant; (2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded; (3) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of the prosecutor; (4) reports or records of prior convictions of the defendant; (5) books, papers, documents, or copies thereof, or tangible objects, buildings or places which are within the possession, custody or control of the prosecutor; (6) names and addresses of any persons whom the prosecutor knows to have relevant evidence or information including a designation by the prosecutor as to which of those persons may be called as witnesses; (7) record of statements, signed or unsigned, by such persons or by co-defendants which are within the possession, custody or control of the prosecutor and any relevant record of prior conviction of such persons; (8) police reports which are within the possession, custody, or control of the prosecutor; (9) names and addresses of each person whom the prosecutor expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial. (d) Discovery by the State. A defendant shall permit the State to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b): (1) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of defense counsel; (2) any relevant books, papers, documents or tangible objects, buildings or places or copies thereof, which are within the possession, custody or control of defense counsel; (3) the names and addresses of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements; (4) written statements, if any, including any memoranda reporting or summarizing the oral statements, made by any witnesses whom the State may call as a witness at trial; (5) names and address of each person whom the defense expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, and a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial the expert may, upon application by the prosecutor, be barred from testifying at trial. (e) Documents Not Subject to Discovery. This rule does not require discovery of a party's work product consisting of internal reports, memoranda or documents made by that party or the party's attorney or agents, in connection with the investigation, prosecution or defense of the matter nor does it require discovery by the State of records or statements, signed or unsigned, of defendant made to defendant's attorney or agents. (f) Protective Orders. (1) Grounds. Upon motion and for good cause shown the court may at any time order that the discovery or inspection sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; protection of confidential relationships and privileges recognized by law; any other relevant considerations. (2) Procedure. The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone, and if the court thereafter enters a protective order, the entire text of the statement shall be sealed and preserved in the records of the court, to be made available only to the appellate court in the event of an appeal. (g) Continuing Duty to Disclose; Failure to Comply. If subsequent to the compliance with a request by the prosecuting attorney or defense counsel or with an order issued pursuant to the within rule and prior to or during trial a party discovers additional material or witnesses previously requested or ordered subject to discovery or inspection, that party shall promptly notify the other party or that party's attorney of the existence thereof. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate.

The Court Should Dismiss Complaints Against Defendant When the State is Not Ready to Proceed or Discovery Not Provided.

Preparation of the State's case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987). In State v. Polasky, 216 N.J. Super. 549 (Law Div 1986) Judge Haines discussed the municipal prosecutor's role in connection with discovery, and added: There is further reason for requiring the prosecutor to be responsible. In our court system, the prosecutor, contrary to an ordinary advocate, has a duty to see that justice is done. State v. D'Ippolito, 19 N.J. 450, 549-550 [117 A.2d 592] (1955). He is not to prosecute, for example, when the evidence does not support the State's charges. Consequently, the prosecutor has an obligation to defendants as well as the State and the public. Our discovery rules implicate that obligation, an obligation which can be discharged by no one else. [216 N.J. Super. at 555, 524 A.2d 474]

As set forth in State v Prickett; 240 NJ Super 139, 146 (App. Div 1990), it is the municipal prosecutor who selects the State's witnesses, requests postponements for the State, complies with discovery rules, requests dismissal if the State cannot make out a case, and does all else necessary to prepare and present the State's cases in the municipal court. See also Position 3.11, "The Role of the Prosecutor, Report of the Supreme Court Task Force on the Improvement of Municipal Courts (1985)".

R. 1:2-4(a) provides for payment of costs to an adverse party as a condition of adjournment even where the State is the offending party in a criminal action. State v. Audette, 201 N.J. Super. 410, 493 A. 2d 540 (App. Div. 1985). In Prickett, supra the Appellate Division agreed with the Law Division judge that the case should be remanded to the municipal court for determination and imposition of appropriate costs and for trial within 45 days of the date of this opinion. A party has failed to comply with this Rule [a discovery request] or with an order issued pursuant to this Rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate. State v Prickett 240 NJ Super 139, 145 App. Div (1990) We have the problem of a part-time municipal prosecutor responsible for preparing cases for trial who abandons a prosecutorial function to the municipal court clerk who assumes it. R. 1:9-1 indicates that the court clerk may issue a subpoena, but makes no provision for service by the court clerk nor does it give the clerk the authority to excuse any witness absent instructions from the municipal court judge. The municipal court clerk should not become involved in the preparation of the State's case. See N.J. Municipal Court Clerks' Manual, 2.3, pp. 69-70 (A.O.C. 1985) which states: "The municipal prosecutor has the responsibility for determining what witnesses he wants and of preparing his own subpoenas. However, if the municipal prosecutor lacks secretarial help, court personnel may assist in typing the subpoenas." State v Prickett 240 NJ Super at 145. However, the court should not ever act as the prosecutor's assistant. The court must be neutral. If the state is not prepared, the charges should be dismissed or state sanctioned. Because the State is the municipal prosecutor's client, a failure to discharge the obligations of his office is a violation of a prosecutor's professional responsibility to represent the client diligently. When a prosecutor has available relevant evidence bearing on a prosecution, and the prosecutor's failure to present that evidence in the course of trial results in acquittal, that prosecutor has not diligently discharged his or her duty to prepare and present the State's case. Furthermore, when the failure to prepare for trial and present relevant evidence prejudices the State's case, the prosecutor's deviation from that duty may be so severe as to constitute gross negligence. Matter of Segal 130 NJ 468 (1992) Furthermore, "delay occasioned by the courts must be charged against the State, not the defendant." State v Perkins, 219 NJ Super. 121, 127 (Law Div 1987). "The court is one part of our tripartite system of government. Its failures cannot be permitted to injure a defendant who had nothing to do with them and no control over them." Id. at 127. When a Prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable. United States v Agurs 427 US 97, 106, 98 S. Ct. 2392, 2399, 49 L Ed 2d 342 (1976)

CHARGES SHOULD BE DISMISSED IF SPEEDY TRIAL VIOLATED

In a DWI case, State v. Farrell NJ Super (App. Div 1999) a DWI conviction was reversed and case dismissed based on speedy trial violation. The court held: "Excessive delay in completing a prosecution can potentially violate a defendant's constitutional right to a speedy trial as a matter of fundamental fairness, apart from whether double jeopardy standards have been contravened. Id. at 354-55. In cases arising from municipal court DWI prosecutions, just as with criminal prosecutions, consideration whether the right to a speedy trial has been violated is guided by the four factors announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed.2d 101, 117-18 (1972). Gallegan, supra, [117 NJ 345, 1989] 117 N.J. at 355; State v. Prickett, 240 N.J. Super. 139, 143 (App. Div. 1990)." Farrell, supra. Specifically, the court must engage in a multi-element balancing process of the four factors: the length of the delay, the reasons for the delay, whether the defendant asserted his right to speedy trial, and any prejudice to the defendant occasioned by the delay. Gallegan, supra, 117 N.J. at 355; State v. Marcus, 294 N.J. Super. 267, 293 (App. Div. 1996), certif. denied, 157 N.J. 543 (1997). State v Farrell NJ supra. Delay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation. Gallegan, supra , 117 N.J. at 355; Marcus, supra, 294 N.J. Super. at 293. Further, because the evaluative process involves a balancing of considerations, if the other factors weigh heavily enough, a speedy trial violation can be established without an affirmative showing of prejudice to the defendant. See State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976). In a related vein, the defendant's demonstration of prejudice is not strictly limited to a "lessened ability to defend on the merits." Ibid. Rather, prejudice can be found from a variety of factors including "employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like." Ibid. (citing Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed.2d 183 (1973)), cited by State v Farrell, supra. The New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases. In 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days. See State v. Fox, 249 N.J. Super. 521, 523 & n.1 (Law Div. 1991); State v. Perkins, 219 N.J. Super. 121, 124 (Law Div. 1987). In Perkins, supra, defendant was charged with DWI on October 10, 1986, following a car accident in which only he was injured. 219 N.J. Super. at 122. Defendant first appeared in municipal court on December 4, 1986, but the State was not prepared to proceed and sought a continuance. Id. at 123. The trial was reset for January 8, 1987, and the municipal court judge stated that defendant would be entitled to a dismissal if the State was not ready to prosecute. Ibid. Nevertheless, even though the State was not prepared on January 8 due to a change of prosecutor and subpoena problems, the municipal court denied defendant's motion to dismiss. Perkins at 123-24. On appeal, in Perkins the Law Division dismissed the complaint against defendant. Id. at 124. After first noting the Supreme Court's sixty-day directive, the judge stressed that the municipal court had promised that the case would be tried or dismissed on that date. Id. at 124-25. He stated that "[a] court's promise is sacrosanct" and must be honored. Id. at 125. Accordingly, the municipal court's denial of defendant's motion to dismiss was evaluated as "an arbitrary, and therefore improper" exercise of discretion. Ibid. The municipal court's promises aside, the Law Division judge added, a substitution of prosecutor and failure to subpoena witnesses and otherwise prepare the State's case could not justify the second adjournment. Ibid. As a general rule in applying the evaluative features of the four part test of Barker in fundamental fairness terms, delays of scheduling and other failures of the process for which the trial court itself was responsible are attributable to the State and not to the defendant. 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 Moreover, prejudice to a defendant resulting from delay is no longer confined to inability or lessened ability to defend on the

merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like. Moore v. Arizona, supra. [Smith, supra, 131 N.J. Super. at 368 n. 2.] "A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover ...society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest." State v Perkins, supra at 127, quoting Barker v Wingo, supra, 497 U.S. at 527. Finally, The state's charges for discovery cannot violate State v Green 327 NJ Super 334 (App. Div 2000)

What the State Must Automatically Provide in DWI

In drunk driving cases, the State typically provides copies of a "drunk driving folio" which usually includes:

summonses, front and back, drinking driving report ["DDR"], including a check off list of observations and a narrative of investigation, alcohol influence report ["AIR"]. including chemical test information and breathalyzer operational checklist ["checklist " ] assay report for ampoule chemicals ["assay"], breathalyzer operator certification card ["BOCC"], certificate of analysis from the N.J. Division of State Police for breath alcohol simulator solution.

The State should also provide the following information, even with a general discovery demand in a DWI case Ford, supra at 52:

full identification of the instrument used,

the date it was first placed in service by the State, the type of instrument used, the manufacturer of the instrument, the model number of the instrument, results of coordinator's testing of the instrument for approximately one year before and including the next testing after defendant's tests, the time of administration of the tests, the result. reports and relevant documents signed by defendant, reports concerning defendant's sobriety, including blood and urine tests. Other discovery sometimes requested for DWI.

The defense request, as other discovery, items such as:

ampoules, BTIICs for the 12 months preceding the arrest breath testing instrument inspection procedures, ampoule random sample testing procedures, radio frequency interference testing procedures, FCC licenses for radio frequencies assigned to police radio base.

Reference ampoules may be discoverable. See State v. Maure, 240 N.J. Super. 269 (App. Div. 1990), N.J. 457 (1991); Ford, supra; State v. Dohme, 223 485 (App. Div. 1988) ("Dohme I"); and State v. Dohme, 229 NJ Super. 49 (App. Div. 1988) ("Dohme II"). See also People v Hitch 12 Cal. 3d 641, 527 P.2d 361, 117 Cal.RPtr. 9 (1974). As to test ampoule discoverability in New Jersey, see State v Teare, 129 N.J. Super. 562 (Law Div. 1974), rev'd in part 133 NJ Super. 338 (App Div. 1975), appeal after remand 135 N.J. Super. 19 (Law Div. 1975) and State v. Bryan, 133 N.J. Super. 369 (Law Div. 1974). In seeking reference ampoules, the court may exercise its "discretion to order the turnover of a relevant ampoule in an appropriate case...." State v Young 242 NJ Super. 467 (App. Div 1990) Case law also suggest that defendants may discover breathalyzer operation and inspection procedures. As to operation of the breathalyzer, "[a] defendant .... need not know flawed procedures were used in giving a breathalyzer test in order for the State to disclose information about those procedures." Ford, supra at 49 (emphasis in original); see Tull, BTIIC's for the 12 months before a defendant's breath tests may show recurring or intermittent problems affecting the breathalyzer that would not necessarily show up on BTIIC's before and after the tests. And with BTIIC's since September 1983, the defense can demonstrate how the State has altered breath testing instrument inspection procedures, probably without proper authority, and perhaps changed the reliability procedures refereed to in Romano v. Kimmelman. 96 N.J. 66 (1984); see State v. Klemmer, 237 N.J. Super. Div. 1989), for an example of such a challenge in the context of Intoxicated Driver Resource procedures. The State typically seeks to prove BAC with breath test results obtained by a Breathalyzer Model 900 or 900A. The State must clearly prove certain conditions, among others:

1. The equipment was in proper working order was periodically inspected in accordance with procedures. Romano v. Kimmelman, 96 N.J. 66, 81 and 82 (1984)

2. The operator was qualified i.e., properly certified to administer the instrument. Id.; State v. Ernst, 230 N.J. Super. 238 (App. Div. 1989), cert den. 117 N.J. 40; 3. The test was given correctly-- i.e. in accordance with official instructions and accepted procedures. Romano, supra at 81 and 82 4.1. As to Breathalyzer Model 900: Hand held transmitters were banned from any area close to the instrument. Romano, supra at 85 4.2. As to Breathalyzer Model 900A: either two readings within 0.01 of each other were obtained, Romano, supra at 87 88 or a determination of radio frequency interference ["RFI"] sensitivity was made in accordance with state police inspection procedures followed in September 1983, and if RFI hand held transmitters and police cars with transmitters were banned from any area close to the instrument and extra care was used to shield it. Romano, supra at 88-89 whether the lot number in the BTIIC's "simulator solution percentage" box is the same as breath alcohol simulator solution lot number as the certificate of analysis from the state police.

Items Defenses Counsel may be entitled to Discovery Regarding the Breathalyzer machine

Who manufactured the breathalyzer used in the defendant's case: Stephenson, Smith & Wesson, National Draeger? When was the instrument placed in service? Breathalyzer operators must set the blood alcohol pointer on a start line. Depending on the manufacturer and date placed in service the start line could he either 0.010 or 0.003. If the defendant was tested on a newer instrument with a 0.010 start line, particularly in the close case, that use of the newer instrument violates due process and the defendant's right to equal protection under the law, and the defendant should at least be given the benefit of the doubt.

Manuals about the operation, service, and maintenance of the breathalyzer should be available to defense counsel. They are also needed by defense counsel to prepare an effective cross examination. Defense counsel must prepare cross-examination prior to court, not during a trial.

Discovery Needed for Cross- Examination About Breathalyzer Inspection

Are breathalyzer model at trial numbers on the BTIICs and AIR the same? If not, the breathalyzer tested by the coordinator is probably not the same one the operator used to test the defendant, and there is a serious question of instrument identification.

Do consecutive BTIICs ''bracket" (i.e., are they dated before and after) the date of the defendant's breath tests and are they consecutively numbered? If not, the defense cannot know whether the instrument was "in satisfactory working condition" on the day the defendant was tested. And a missing BTIIC may contain important information helpful to the defense. Are the same ampoule control numbers on both bracketing BTIICs and AlR? If not, the State may have difficulty proving that ampoule chemicals were properly constituted from a consistent batch. See Dohme I, supra; Dohme II, supra; and Maure, supra.

Is the breathalyzer's assigned location on the BTIIC the same as the police station where tests were given to the defendant? If not, then the instrument may have been moved and its inspection, particularly as to RFI, may be irrelevant or at least questionable. What do BTIIC remarks, if any, say? If they note some complaint about the instrument, demand the complainant's identity and all documents concerning the complaint. If the coordinator wrote an opinion that the particular complaint would have either not affected breath test readings or made testing impossible, argue that such comments are inadmissible and should be excised from the document because they lack foundation and violate the defendant's right to confront this paper witness. State v. Matulewicz , 101 N.J. 27 (1985).

If the coordinator removed the instrument from service, readings obtained by the instrument should not be admissible at all. Do frequencies identified in FCC licenses match the frequencies, if any, listed on BTIICs? If not, defense questions whether the instrument was properly and completely inspected for the effects of RFI. What does the certificate of analysis for the simulator solution say anyway? Neither language in the BTIIC ties it to the certificate nor does language in the certificate usually tie it BTIIC. Beyond a reasonable doubt standards prevent the court from raising an inference that breath testing instruments certified as being "in satisfactory working condition" are actually accurate.

Friday, February 7, 2020

DEPRIVATION OF CIVIL RIGHTS 2C:30-6) model jury charge

CRIME OF OFFICIAL DEPRIVATION OF CIVIL RIGHTS

(N.J.S.A. 2C:30-6)model jury charge

Count ___________ of the indictment charges the defendant with the Crime of Official Deprivation of Civil Rights.[Read count of the Indictment.]The statute upon which this charge is based reads as follows:

A public servant acting or purporting to act in an official capacity commits the crime of official deprivation of civil rights if, knowing that his conduct is unlawful, and acting with the purpose to intimidate or discriminate against anindividual or group of individuals because of race, color, religion, gender, handicap, sexual orientation or ethnicity, the public servant: (1) subjects another to unlawful arrest or detention, including, but not limited to, motor vehicle investigative stops, search, seizure, dispossession, assessment, lien or other infringement of personal or property rights; or (2) denies or impedes another in the lawful exercise or enjoyment of any right, privilege, power or immunity.

In order to find the defendant guilty of this charge, the State must prove beyond a reasonable doubt the following elements:

1.That the defendant was a public servant;

2.That the defendant knowingly acted or purported to actin an official capacity;

3.That the defendant knew that his/her conduct was unlawful;

4.That the defendant acted with the purpose to intimidate or discriminate against an individual or group of individuals because of [choose appropriate category] race, color, religion, gender, handicap, sexual orientation or ethnicity, and;

[Choose appropriate section]

5(1).That the defendant subjected another to unlawful arrest or detention, including but not limited to, motor vehicle investigative stops, search, seizure, dispossession, assessment, lien or other infringement of personal or property rights;

[or]

5(2).That the defendant denied or impeded another in the lawful exercise or enjoyment of any right, privilege, power or immunity.

[Resume full charge]
The first element the State must prove beyond a reasonable doubt is that the defendant was a public servant at the relevant time(s).A public servant means any officer or employee of government including legislators and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not include witnesses.[1]Here the State alleges __________. [Charge if the defendant requests:] The defendant counters as follows: __________.

The second element the State must prove beyond a reasonable doubt is that the defendant knowingly acted or purported to act in an official capacity. The act must relate to the public servants office.
The third element the State must prove beyond a reasonable doubt is that the defendant knew his/her conduct was unlawful.

For purposes of this section, an act is unlawful if it violates the Constitution of the United States, or the Constitution of this State, or if it constitutes a criminal offense under the laws of this State.[2]
The fourth element the State must prove beyond a reasonable doubt is that the defendant acted with the purpose to intimidate or discriminate against an individual or group of individuals because of[choose appropriate category] race, color, religion, gender[3], handicap[4], sexual orientation or ethnicity. To intimidate means to put another person in fear.[Charge if appropriate]: When the actual victim is one other than the intended victim, it is immaterial that the actual victim was not the intended victim.[5]

[If the category includes handicap, consider using the following definition of disability:
Disability means physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or any mental, psychological, or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.

Disability shall also mean AIDS or HIV infection.[6]

[Continue with full charge]

A person acts purposely with respect to the nature of his/her conduct or a result of his/her conduct if it is the persons conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if the person is aware of the existence of such circumstances or believes or hopes that they exist. With purpose,designed, with design, or equivalent terms have the same meaning.

A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is aware that his/her conduct is of that nature or that such circumstances exist or if he/she is aware of a high probability of their existence. A person acts knowingly with respect to the result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result. Knowing, with knowledge, or equivalent terms have the same meaning.

Purpose and knowledge refer to conditions of the mind. They cannot be seen. Often, they can be determined only by inferences from conduct, words or acts. It is not necessary, for the State to prove the existence of such a mental state by direct evidence such as a statement by the defendant that he/she had a particular purpose or that he/she acted with knowledge when he/she had dominion and control over a particular thing. It is within your power to find that proof of a state of mind has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances. The defendants conduct and everything done or said by him/her preceding, connected with, and immediately succeeding the alleged acts are among the circumstances to be considered.

[Choose appropriate sections]

The fifth element the State must prove beyond a reasonable doubt is that the defendant subjected [the victim(s)] to [choose appropriate:] [unlawful arrest] or [detention,] including but not limited to [choose appropriate categories:] [motor vehicle investigative stops,] [search,] [seizure,] [dispossession,] [assessment,] [lien] or [other infringement of personal or property rights].

[or]

The fifth element the State must prove beyond a reasonable doubt is that the defendant denied or impeded [the victim(s)] in the lawful exercise or enjoyment of any [choose appropriate:] [right,] [privilege,] [power] or [immunity].

[Charge in all cases]

Here the State alleges _______. [Charge if the defendant requests:] The defendant counters as follows: __________.

[Charge where appropriate]

Proof that a public servant made [choose appropriate:]

i)a false statement,

ii)prepared a false report,

iii)or, if the agency that employs the public servant, the AttorneyGeneral or
the county prosecutor having supervisory authority over the agency required a report to be prepared, failed to prepare a report concerning the conduct that is the subject of the prosecution,
may give rise to an inference that the actor [the defendant] knew his/her conduct was unlawful.[7]
An inference is a deduction of fact which may be drawn logically and reasonably from another fact or group of facts established by the evidence. Whether or not the inference relating to [the defendants] state of mind should be drawn is for you to decide, using your own common sense, knowledge and everyday experience, after you consider whether it is probable, logical, and reasonable to draw such an inference. As judges of the facts, you decide whether the facts and circumstances reflected in the evidence support any inference. You are always free to draw, or to reject, any inference.
If you decide to draw this particular inference as to the purpose of (the defendant), weigh it in connection with all other evidence that you have seen and heard.Drawing an inference does not reduce or lessen the burden of proof imposed upon the State. The State must prove each element of each offense beyond a reasonable doubt.

[Charge in all cases]

If you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty. If, however, you find that the State has proven each and every one of these elements beyond a reasonable doubt, then you must find the defendant guilty.

[If the State charges a crime of the second degree, charge the following]

[N.J.S.A. 2C:30-6b(2) - second degree]

Furthermore, if you find that the State has proven the defendant guilty of the Crime of Official Deprivation of Civil Rights, you must then consider if bodily injury resulted from depriving a person of a right or privilege in violation of this section.A section of the statutes provides that the Crime of Official Deprivation of Civil Rights is a crime of the third degree.However, if the State proves two additional elements beyond a reasonable doubt then the crime is one of second degree.

First, the State must prove beyond a reasonable doubt that the victim suffered bodily injury.
Bodily injury means physical pain, illness or any impairment of physical condition.[8]

Second, the State must prove beyond a reasonable doubt that the bodily injury suffered by the victim resulted from depriving the victim of a right or a privilege.[9]

If the State has proven each of these two additional elements of this crime beyond a reasonable doubt, then you must find the defendant guilty of the second-degree Crime of Official Deprivation of Civil Rights. If, on the other hand, the State has failed to prove either of these two additional elements beyond a reasonable doubt, then you must find the defendant not guilty of the second-degree Crime of Official Deprivation of Civil Rights but guilty of third-degree Official Deprivation of Civil Rights.

[Or]

[If the State charges a crime of the first-degree, charge the following]

[N.J.S.A.2C:30-6c - First Degree]

Furthermore, if you find that the State has proven the defendant guilty of the Crime of Official Deprivation of Civil Rights, you must then consider if, during the course of violating the provisions of this section, a public servant committed or attempted or conspired to commit [choose appropriate:] murder, manslaughter, kidnapping or aggravated sexual assault against a person who is being deprived of a right or privilege in violation of this section.A section of the statutes provides that the Crime of Official Deprivation of Civil Rights is a crime of the third degree.However, if the State proves two additional elements beyond a reasonable doubt then the crime is one of the first degree.

First, the State must prove beyond a reasonable doubt that the defendant committed or attempted[10]to commit or conspired[11]to commit [choose appropriate[12]:] murder, manslaughter, kidnapping or aggravated sexual assault.

Second, the State must prove beyond a reasonable doubt that the defendant committed this act or attempted it or conspired to commit it during the course of violating the provisions of the Crime of
Official Deprivation of Civil Rights.[13]

If you find that the State has proven each of these two additional elements beyond a reasonable doubt, then you must find the defendant guilty of the first-degree Crime of Official Deprivation of Civil Rights. If, on the other hand, you find that the State has failed to prove either of these two additional elements beyond a reasonable doubt, then you must find the defendant not guilty of the first-degree Crime of Official Deprivation of Civil Rights but guilty of third-degree Official Deprivation of Civil Rights.


[1]N.J.S.A.2C:27-1g.
[2]N.J.S.A.2C:30-6e.
[3]The Committee notes that gender identity or expression means having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a persons assigned sex at birth.SeeN.J.S.A.2C:16-1g.
[4]The term disability has replaced the term handicap.SeeN.J.S.A. 2C:16-1a (the bias intimidation charge specifically defines disability);State v. Dixon, 396N.J. Super. 329, 338-40 (App. Div. 2007)(disability has replaced the term handicap).
[5]SeeN.J.S.A.2C:2-3d.
[6]State v. Dixon, 396N.J. Super.at 339.Seenote 4,supra.See alsoN.J.S.A.10:5-5q.
[7]N.J.S.A. 2C: 30-6d.
[8]N.J.S.A.2C:11-1(a).
[9]If causation is an issue, charge pursuant toN.J.S.A.2C:2-3.
[10]SeeN.J.S.A.2C:5-1a.
[11]SeeN.J.S.A.2C:5-2.
[12]Charge appropriate predicate crime as alleged in the indictment.
[13]If causation is an issue, charge pursuant toN.J.S.A. 2C:2-3.

Defiant Trespass Can Be in a Road; State v. Hamilton. 368 NJ Super. 151 (App. Div. 2004)




Defiant Trespass Can Be In a Road. State v. Hamilton 368 NJ Super. 151 (App. Div. 2004).

Defiant trespass, N.J.S.A. 2C:18-3b, may be committed on a public road when a person fails to comply with the reasonable directions of a police officer. A misdescription of the property in the complaint, indicating a trespass on municipal property rather than on the right-of-way of a country road, was not material under the present facts.

Hire a Trial Attorney To Represent You If Charged With a Criminal Or Serious Motor Vehicle Matter Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office also helps people with traffic/municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended. Criminal and Motor vehicle violations can cost you. You may have to pay high fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV/MVC [Motor Vehicle Commission] or have your license suspended. Don't give up!

The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal and motor vehicle violations. When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV/MVC surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule a free in-office consultation if you need experienced legal representation in a traffic/municipal court matter.

Our website KennethVercammen.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations. Call the Law Office of Kenneth Vercammen at 732-572-0500 to schedule a free in-office consultation to hire a trial attorney for Criminal/ DWI/ Municipal Court Traffic/ Drug offenses.

Defense to Shoplifting at Macys

The defendant may not be aware that there was a criminal act being committed.
NJSA 2C: 4-2. Evidence of mental disease or defect admissible when relevant to element of the offense.

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind, which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect, which would negate a state of mind, which is an element of the offense.
The NJ Model Jury charges set forth the elements of SHOPLIFTING [CONCEALMENT]
(N.J.S.A. 2C: 20-11b(2))

The statute provides in pertinent part that it is a crime for:

any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.
In order for the finder of fact to find the defendant guilty of shoplifting, the State must prove each of the following elements beyond a reasonable doubt:

1. that defendant purposely concealed upon his person or otherwise any merchandise offered for sale by (name of commercial establishment);

2. that (name of commercial establishment) was a store or other retail mercantile establishment; and

3. that defendant did so with the purpose of depriving the merchant of the processes, use, or benefit of such merchandise [OR of converting such merchandise to his/her use] without paying the merchant the value thereof.

The first element that the State must prove beyond a reasonable doubt is that defendant purposely concealed upon his person or otherwise any merchandise offered for sale by any store or other retail establishment. The term conceal means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.

1 The term merchandise means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof.

2.A person acts purposely with respect to the nature of his or her conduct or a result of his conduct if it is the persons conscious object to engage in conduct of that nature or to cause such a result. That is, a person acts purposely if he or she means to act in a certain way or to cause a certain result. A person acts purposely with respect to attendant circumstances if the person is aware of the existence of such circumstances or believes or hopes that they exist.3

1 N.J.S.A. 2C:20-11a(6).

2 N.J.S.A. 2C:20-11a(3).

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

Purpose is a state of mind. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said he/she had a certain state of mind when he/she engaged in a particular act. It is within the fact finders power to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances.
..
The third element that the State must prove beyond a reasonable doubt is that defendant acted with the purpose of depriving the merchant of the processes, use or benefit of such merchandise [OR converting such merchandise to his/her use] without paying the merchant the value of the merchandise.

WHEN OFFENSE CHARGED REQUIRES A PURPOSEFUL OR KNOWING STATE OF MIND, CONTINUE CHARGE AS FOLLOWS:

Although the statute refers to mistake of fact or law as a defense, caselaw makes it clear that it is not genuinely a defense at all: instead, it is an attack on the prosecutions ability to prove the requisite mental state for at least one objective element of the crime. State v. Sexton, 160 N.J. 93, 99-100 (1999). Since it is obviously impossible for any single charge to explain precisely how the offered defense plays into the element[s] of every possible offense that mistake of fact or law could apply to (Sexton, 160 N.J. at 106), and at best can offer a more general charge on the subject of mistake of fact or law (State v. Pena, 178 N.J. 297, 319 (2004)), this model charge is organized by reference to the state of mind under N.J.S.A. 2C:2-2b contained in the offense charged by the State, and then by the degree to which the mistake of fact or law exonerates or mitigates the defendants guilt. As always, the trial court must tailor the precise type of mistake that defendant relies on to the facts of the particular crime or offense charged and the facts adduced at trial. State v. Concepcion, 111 N.J. 373, 379-380 (1988).

2 Since even an unreasonable mistake can negate the required state of mind for the charged offense, the statutory requirement that the defendant reasonably arrived at the conclusion underlying the mistake was eliminated and, therefore, is not referred to in this model charge. Sexton, 160 N.J. at 105; Pena, 178 N.J. at 306.
3 Sexton, 160 N.J. at 100; Pena, 178 N.J. at 306.

STATE OF MIND

Purpose/knowledge/intent/recklessness/negligence is/are condition(s) of the mind, which cannot be seen and can only be determined by inferences from conduct, words or acts.

A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts.It is the fact finders job to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances.

PRESUMPTION OF INNOCENCE

This defendant(s), as are all defendants in criminal cases, is presumed to be innocent until proven guilty beyond a reasonable doubt.

REASONABLE DOUBT

The prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty.

The State has the burden of proving the defendant guilty beyond a reasonable doubt.
A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have.

Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendants guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt.

Defense to Criminal Charges

DEFENSE TO CRIMINAL CHARGES

DEFENSE TO CRIMINAL CHARGES
BY KENNETH A. VERCAMMEN

Too often lawyers throw up their hands when a client presents a ticket involving Drug Possession, Driving While Suspended, DWI or Assault. While defense of criminal court charges involving serious motor vehicle charges may become an involved process requiring commitment and persistence, there are a number of viable defenses and arguments that can achieve a successful result. Rather than simply suggest that a client plead guilty and avoid trial, an attorney should accept the challenge and apply his best legal talents to protect the client's rights.

1. The In-Office Interview at the Law Office

We advise potential clients to bring in a copy of the complaint, all their papers in connection with their case, accident report, and any documents they received from the Motor Vehicle Commissions. Often times I will instruct them to write a confidential narrative if it is a case that is fact- specific or involves a great deal of detail, such as an assault case.

When the client is first in the office, we have them fill out the Confidential New Criminal Case Interview Sheet. We obtain background information such as their name, address, the offenses charged, date of the persons arrest, other witnesses, statements given to them by the police, their occupation and information regarding prior criminal convictions and prior motor vehicle convictions. Our interview sheet also asks if there is anything else important, such as a medical condition that affects their case. This form will also let us know whether or not the client will follow instructions and cooperate with us.

If they refuse to provide information we may have a problem client.
After reviewing the summons and the interview sheet, I ask a series of questions of the client. We request the client wait until the end of the interview before explaining their side of the story. We also ask them if there is anything else of importance in connection with the case that we should know. The client may have pending serious criminal charges in another state or country. I usually open up our statute book and show the clients the specific language of the offense they are charged with and explain to them the maximum penalties that could be imposed. By understanding the charges they are facing, my clients are more likely to realize the seriousness of the offense and pay our retainer.

2. Retaining the Attorney

Rule 1:11-2 of the Rules of Professional Conduct indicate a retainer letter or written statement of fees is required for new clients. I also provide all my clients with written information explaining how to appear in court, information on surcharges, information on points, and information regarding substance abuse treatment, if applicable.

Once we receive our retainer (are paid), we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor/district attorney and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case and to inquire who handles discovery. We check the Lawyers Diary to determine who are the judges and prosecutor/district attorneys for the county or town. It is important to learn about the judge and the prosecutor.

We require a great deal of cooperation from our clients in an effort to help keep their costs reasonable. We require our clients to take photographs of accident sites and prepare diagrams and provide us with the names, addresses, and telephone numbers of witnesses.

I recommend that my clients provide me with a list of between 10 to 15 reasons why they should not go to jail and why court should impose the minimum license suspension. We recommend they obtain a Motor Vehicle Abstract. This provides us with information for mitigation of penalties and also provides information to be considered by the judge in sentencing.

3. Post Interview Work

Many states have programs for first time offenders who have never previously been arrested or previously convicted of a criminal offense. Again, to avoid embarrassment it is a good idea to speak with the prosecutor/ district attorney and the police officer because they may have a criminal abstract to indicate that the client is not eligible for a diversions type program. We also make a Motion to Suppress where there is a question regarding the validity of a stop or search. Any other Motions to Dismiss should be made in writing such as statue of limitations or lack of jurisdiction.

Oftentimes in cases that deal with just one triable issue such as the admissibility of a blood test result in alcohol or drugs, we can make a Motion in Limine or suggest a pre-trial conference. It is often a good idea to try to know how the judge will decide in order to save us a three-hour trial on a complicated case. If the court rules against us in the Motion in Limine we can enter a guilty plea contingent upon reserving your right to appeal on that one issue.

4. Discovery Phase

Oftentimes we do not receive all of the discovery that we request. We send a letter to the prosecutor requesting additional discovery and request that the discovery be provided within 10 days. If we do not receive the discovery with 10 days then we prepare a Motion to Compel Discovery.

In the case involving essential witnesses, we occasionally write to the witnesses and ask them to call us so that we can find out what really happened. If possible I have a law clerk call up after we send the initial letter. The attorney cannot testify if the witness provides an inconsistent statement but our law clerks can testify. I sometimes speak to friendly witnesses myself later to make a decision to determine whether or not the witnesses are credible.

Upon receiving discovery, we forward a photocopy of all discovery to our client. We then discuss with the client whether or not they have a reasonable prospect of winning.

In drunk driving cases we review the videotape with the client prior to the trial date and sometimes make arrangements to retain an expert.

5. Preparing for Court

If it is a drug case, we should make an objection to the entry of the lab certificate as evidence at trial. We are also under a responsibility to provide any reciprocal discovery to the prosecutor. Occasionally, in a court where there is only one prosecutor you should call the criminal court prosecutor ahead of time to see if a matter can be worked out or plea bargained. Some Criminal prosecutors in lower courts work part time and are not compensated for the many telephone calls they get in their offices.

If we discover a favorable case, we make a copy for the judge, prosecutor, and client. Never assume the part time prosecutor or judge is familiar with all the laws. We can prepare a Subpoena ad Testificandum for witnesses to testify and Subpoena Duces Tecum for witnesses to bring documents. We have our clients hand deliver the Subpoenas and write out their own check for the subpoena fees. It is better to be over-prepared than under-prepared.

Over the years I have made it a practice to build up files on particular legal subjects with complete case law. I now have files for drunk driving, driving while suspended, drug possession, assault, and careless driving.

When we receive the hearing notice we send a follow up reminder to the client to be on time, bring all papers and call 24 hours ahead to confirm the case is still on the calendar. The client should be prepared and look neat. The Grateful Dead and Budweiser T-Shirts should be replaced with something that looks presentable. They should have their pregnant wives sitting next to them.

Preparation is the key to winning cases or convincing the prosecutor of exceptional defenses. Upon arrival at court, we will attempt to ascertain if the police officer is available. Sometimes the police officer is on vacation, retired, or suspended. This may assist your ability to work out a satisfactory arrangement.

There is no prohibition against speaking with States witnesses in a non-threatening way. Outside of the courtroom, I usually call out the name of the non-law enforcement States witnesses to determine what their version of the facts are. If we have an excellent trial issue but believe the judge is going to rule against us, we bring an appeal notice and file it with the Court on the Record. I keep in my car blank forms for Order to Compel Discovery, Order Mark Try or Dismiss, Order to be Relieved, and an Appeal Notice.

6. Plea to a Lesser Defense

If the client is going to enter a guilty plea to an offense, it is important they understand what the offense is and put a factual basis on the record. The Judge will be angry if a person is pleading guilty to a drunk driving case and the judge asked them what he had to drink, the person insists he only had one beer. The judge will send us back to our seat and must refuse to take the guilty plea unless an adequate factual basis is put on the record.

Having previously obtained for my clients their favorable background, I usually put on the record reasons why the judge should give them the minimum penalties.

Letters of reference and character reference letters are helpful in cases where the judge has wide discretion in his sentencing. After the client pleads guilty, it is a good idea to also ask the client on the record if he has any questions of myself or of the court.

7. Conclusion

Whether or not we have a trial or there is a plea to reduce the charge, I wish to walk out knowing I did the best you could for the client. Even if I lose, I want to have been such an articulate advocate that the client walks out saying my attorney is great but the judge is wrong. We try to be innovative and prepare new arguments. We handle a substantial amount of criminal court and personal injury cases and have put case law and certain legal defenses on our website: KennethVercammen.com.

About the Author: Kenneth A. Vercammen is an Edison, Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on criminal court and litigation topics.

DEFENSE OF PROPERTY model jury charge (N.J.S.A. 2C:3-6)

DEFENSE OF PROPERTY model jury charge(N.J.S.A. 2C:3-6)
As a part of his/her denial of guilt, the defendant contends that his/her acts were justified because they were committed in defense of his/her (premises) (personal property).

DEFENSE OF PREMISES (N.J.S.A. 2C:3-6(a) and (b)

A section of our criminal law provides that ......... the use of force upon or toward the person of another is justifiable when the actor is in possession or control of premises or is licensed or privileged to be thereon and he reasonably believes such force necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by such other person in or upon such premises.[1]

A reasonable belief is one that is not recklessly or negligently held[2]; it is a belief that would be held by a person of ordinary prudence and intelligence situated as defendant was.As the statute indicates, the defense of property exonerates a person who uses force in the reasonable belief that such action was necessary to prevent or terminate the commission or attempted commission of a criminal trespass, even though his/her belief was later proven mistaken.Accordingly, the law requires only a reasonable, not necessarily a correct, judgment.[3]

A person commits a criminal trespass if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any research facility, structure, or separately secured or occupied portion thereof.[4]

Our criminal law further provides that, in defense of premises, the use of force is justifiable.........only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor reasonably believes that (a) such request would be useless; (b) it would be dangerous to himself or another person to make the request or (c) substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.

The use of force to defend premises is not justifiable if the actor knows that the exclusion of the trespasser will expose him/her to substantial danger of serious bodily harm.
Serious bodily harm is defined as:

Bodily harm which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ [WHERE APPLICABLE: or which results from aggravated sexual assault or sexual assault].[5]
[USE OF DEADLY FORCE]

The use of deadly force is not justifiable in the defense of premises unless the actor reasonably believes that [CHOOSE APPLICABLE PROVISION]:

(a)The person against whom the force is used is attempting to dispossess him/her of his/her dwelling otherwise than under a claim of right to its possession.A dwelling means any building or structure, though movable or temporary, or a portion thereof, which is for the time being the actors home or place of lodging....[6] [If applicable, insert Model Jury Charge on Claim of Right, pursuant to N.J.S.A. 2C:20-2c.].

OR

(b)The person against whom the force is used is attempting to commit or consummate [CHOOSE: arson, burglary, robbery or other criminal theft or property destruction.][At this point, instruct the jury on applicable offense, along with proper instruction on attempt].

Deadly force is defined as force which the actor uses with the purpose of causing or which he knew created a substantial risk of causing death or serious bodily harm.[7]

[CHARGE WHERE APPROPRIATE: Purposely firing a firearm in the direction of another person or at a vehicle, building or structure in which another person is believed to be constitutes deadly force.[8]]

[CHARGE WHERE APPROPRIATE: A threat to cause death or serious bodily harm by the production of a weapon or otherwise, so long as the actors purpose is limited to creating an apprehension that he/she will use deadly force if necessary, does not constitute deadly force.[9]]
However, even in the instance(s) just mentioned, the use of deadly force is not justified unless the actor reasonably believes that [CHOOSE APPLICABLE PROVISION]:

(i) the person against whom it is employed has employed or threatened deadly force against or in the presence of the actor.

OR

(ii) the use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor or another in his/her presence to substantial danger of bodily harm.Bodily harm means physical pain, or temporary disfigurement, or impairment of physical condition.[10]

If an actor is within a dwelling at the time that he/she used deadly force to prevent the commission or consummation of [crime about which the jury has been instructed], this fact alone is sufficient to establish that he/she reasonably believed that he/she was in substantial danger of bodily harm.In other words, if defendant was within a dwelling when he/she used deadly force against [name of alleged victim], you must find that he/she reasonably believed that he/she was in substantial danger of bodily injury unless the State disproves that finding beyond a reasonable doubt.[11]I have already defined the term dwelling for you.

[IN ALL CASES INVOLVING USE OF DEADLY FORCE]: I have already defined deadly force and reasonable belief for you.

DEFENSE OF PERSONAL PROPERTY (N.J.S.A. 2C: 3-6(c) and (d)
A section of our criminal law provides that...
the use of force upon or toward the person of another is justifiable when the actor reasonably believes it necessary to prevent what he reasonably believes to be an attempt by such other person to commit
[CHOOSE APPLICABLE CRIME: theft, criminal mischief or other criminal interference with personal property in his possession or in the possession of another for whose protection he acts].
[Define offense or offenses by the victim which may be involved, as well as the appropriate instructions for attempt, if applicable.]

Our criminal law further provides that in the defense of personal property.
the use of force is justifiable only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor reasonably believes that (a) such request would be useless; (b) it would be dangerous to himself or another to make the request; or (c) substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.

[Define reasonable belief as in the preceding section.]
The use of force to defend personal property is not justifiable if the actor knows that the exclusion of the person attempting to commit [crime alleged] will expose him/her to substantial danger of serious bodily harm.

Serious bodily harm is defined as:

Bodily harm which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ [WHERE APPLICABLE: or which results from aggravated sexual assault or sexual assault].[12]

[USE OF DEADLY FORCE]

[N.J.S.A. 2C:3-6d(2) provides that [t]he use of deadly force in defense of personal property is not
justified unless justified under another provision of this chapter.If defendant claims that his/her use of deadly force was justified under any provision of N.J.S.A. 2C:3-3 to 3-8, the jury should be instructed regarding that provision at this point.Also, define deadly force as in the preceding section.]

BURDEN OF PROOF [ALL CASES]

The burden of proof is upon the State to prove beyond a reasonable doubt that the use of force by the defendant was not justified.Thus, if you find that the State has proven beyond a reasonable doubt that the defendant committed _________________________ [the crime[s] charged in the indictment] and has also proven beyond a reasonable doubt that the defendant was not justified in using force, then your verdict must be guilty.But if you have a reasonable doubt whether his/her use of force was justified, then your verdict must be not guilty.

[1]
N.J.S.A. 2C:3-6(a) and (c) provide that the justification for the use of force in defense either of premises or personal property is subject to the provisions of this section and of section 2C:3-9.If any issues arise pursuant to N.J.S.A. 2C:3-9(a) or (c) in a given case, the model jury charges for thosesubsections should be given after the other provisions of this section are explained but before the jury is instructed on the burden of proof.
[2]
N.J.S.A. 2C:1-14 (j).The definitions of reckless and negligent states of mind contained in N.J.S.A.2C: 2-2 (b) (3) and (4) should be included at this point if they have not been charged previously in connection with the offense(s) charged.
[3]
State v. Kelly, 97 N.J. 178, 198 (1984).
[4]
N.J.S.A. 2C:18-3a.
[5]N.J.S.A. 2C:3-11d.
[6]
N.J.S.A. 2C:3-11c.
[7]
N.J.S.A. 2C: 3-11b.
[8]
Ibid.
[9]
Ibid.Note, however, that this portion of N.J.S.A. 2C:3-11b is not applicable if a weapon is actually used (e.g., a brandished firearm is actually fired).State v. Moore, 158 N.J. 292, 305-308 (1999).
[10]
N.J.S.A. 2C:3-11e.
[11]
N.J.S.A. 2C:3-6b(3)(c)(ii) and 1-13e; N.J.R.E. 301.Although the provisions of N.J.R.E. 303 apply only to presumptions against the accused in criminal cases, this portion of the charge avoids the use of the term presumption or presumed contained in this subsection.

[12]N.J.S.A. 2C:3-11 d.

DEFENSE OF PERSONAL PROPERTY model jury charge 2C:3‑6c

JUSTIFICATION - SELF DEFENSEUSE OF FORCE IN DEFENSE OF PERSONAL PROPERTY model jury charge(N.J.S.A. 2C:3-6c)

The State claims that the defendant illegally used force against the victim in this case.The defendant, on the other hand, claims that he/she had a justifiable right to use the level of force he/she did use to protect his/her personal property.Personal property is defined as tangible items other than real estate consisting of things that are moveable, temporary or consumable in nature, commonly known in the law as chattels.

In other words what the State alleges as an illegal assault, the defense characterizes as a justifiable legal defense of defendants personal property or personalty.

The law recognizes that a person cannot use deadly force to protect personal property, but can only use a non-deadly level of force upon another person when he/she reasonably believes it necessary to prevent that other person from attempting to commit a theft criminal mischief or other criminal interference with personal property in the defendants possession or in the possession of another for whose protection the defendant reasonably believes he/she is acting.

Remember that deadly force cannot be used by a person protecting his/her own personal property or that of another (unless justified for some other lawful purposes other than the protection of personal property such as self-protection of his/her physical well-being or protection of another person, or the protection of his/her premises).

Our law defines deadly force as force used with the purpose of causing death or serious bodily harm or which the user knows can create a substantial risk of death or serious bodily harm.Serious bodily harm is an injury which creates a substantial risk of death, or which causes serious, permanent disfigurement, or which causes the protracted loss or impairment of the function of any part of the body.Shooting a firearm at somebody, or even at a place where the shooter believes somebody to be, is deadly force.However, pointing or otherwise brandishing a weapon is not deadly force, so long as there is no actual purpose to use the weapon.

The other level of force which a defendant may be entitled to use with limitations about which I shall instruct you is called non-deadly force.To understand this term you should think of this force as any violence, compulsion or constraint executed against a person short of force that poses a threat of causing death or serious bodily harm.It will be your function to decide what level of force was used.If deadly force was used, then this defense fails.If non-deadly force was employed, then you must determine if it was used properly so as to justify the acts of the defendant.

A person has the right to use non-deadly force to protect personal property if three conditions exist:

1.The person is in possession or control of personal property lawfully belonging to him/her or if his/her personal property is in possession of another, he/she is acting to protect that persons lawful possessions, and

2.The person reasonably believes he/she has to use force. [A belief is reasonable if a person of ordinary prudence and intelligence, in the circumstances of this defendant, would hold it.], and

3.The force has to be used and he/she must reasonably believe it is used to prevent or end the commission or attempted commission of a theft, criminal mischief or other criminal interference with personal property.

Therefore, when you consider the defendants right to use non-deadly force, you must first determine if these three conditions existed.If they did not, you should go no further, because the defendant had no legal right to resort to any force.If you find that these conditions did exist, the use of force in defense of ones personal property is limited.

One limitation requires that the defendant request the actor to desist.This limitation requires the user of force first to ask the target of the force to stop or end his/her criminal activity.
The user of force does not have to make this request, however, if he/she reasonably believes:

1.The request would be useless, or

2.Making the request would be dangerous to the would-be requester or anybody else, or

3.Before the request can be effectively made, substantial harm will be done to the physical condition of the personal property.

It is up to you to decide whether or not this limitation on the use of force to protect personal property, the request to desist, applies.If you find that it does and the defendant failed to make such a request, then the defense fails.

[USE THE FOLLOWING IF THE FACTS APPLY]

If, however, you find that this limitation does not apply, then you must examine another limitation.
To protect personalty, the defendant user of force cannot use that force to eject a trespasser, if defendant knows that the trespasser, when ejected, will be exposed to a substantial danger of serious bodily harm.

If you conclude that no limitation applies to restrict this defendants use of force, then you should find the defendant not guilty.If on the other hand, you have found beyond a reasonable doubt that a limitation does apply to the facts of this case, then the defense fails.
Always remember that the State maintains the burden of proving beyond a reasonable doubt that this defense is not justified under the facts of this case.

Thursday, February 6, 2020

Motions in Child Support, Divorce and Family Actions in New Jersey

Motions in Child Support, Divorce and Family Actions in New Jersey

By Kenneth Vercammen, Esq.

Child support is usually determined through a formal court order. Child support orders, wage withholding, and other Court Orders usually continue forever until a Superior Court Judge signs a Formal Court Order modifying the prior Order. For example, in child support issues, even if a divorce decree states support ends when the child ends full time school, child support does not automatically end. A new Motion must be filed in the Superior Court. It is not sufficient for you to simply wait for a child to finish school. Motions are required to terminate alimony or change any prior court order or divorce decree. Many Divorce decrees and Property Settlement Agreements state that child support will end upon emancipation. For example, the term "emancipation" is sometimes defined as follows: (i) The completion of the child's formal education on a matriculated basis, whether it be graduation from a four year undergraduate school or high school, it being understood that so long as the child is diligently pursuing his formal education through a four year undergraduate college education and obtaining passing grades the child shall not be considered emancipated. (ii) Upon the completion of any of the aforesaid segments of the child's education, and upon the failure to commence the next segment of his education, or upon leaving school, the child shall be deemed emancipated unless failure to continue on with his education has resulted from injury or illness or some other cause beyond the child's control. (iii) The marriage of the child. (iv) Entry into the military or armed forces by the child.

Your attorney can draft the appropriate Motion to terminate child support if the child is emancipated. You will need to provide your attorney with relevant papers including a copy of the Final Judgment for Divorce, any other Child Support Orders, copy of birth certificate if available, proof of graduation from school or working full time, etc. Sometimes the child support recipient, usually the mother, will sign a Consent Order which your attorney can file without the need for a detailed hearing. However, generally a Formal written Notice of Motion must be filed in the County Superior Court where the child support Order was entered. The requirements of the Motion are detailed and must include the correct filing fees. Child support does not end merely if the child reaches 18 and graduates high school. Most child support Orders continue child support if the child is in college full time. However, don't give up. In the unreported Appellate Division decision of Kozak v Kozak __ NJ Super. __ (App. Div. decided January 9, 2003) the court reduced child support during the period of time the child resided at the college campus. The judge determined it was appropriate to calculate child support only for the period of time the child was not residing at college.

The following is a portion of the NJ Court Rules which apply to all family motions.

5:5-4. Motions in Family Actions

(a) Motions. Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions. When a motion is brought for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion. When a motion is brought for the modification of an order or judgment for alimony or child support, the pleading filed in support of the motion shall have appended to it a copy of the prior Case Information Statement or Statements filed before entry of the order or judgment sought to be modified and a copy of a current Case Information Statement.

(b) Page Limits. Unless the court otherwise permits for good cause shown and except for the certification required by R. 4:42-9(b) (affidavit of service), a certification in support of a motion shall not exceed fifteen pages. A certification in opposition to a motion or in support of a cross-motion or both shall not exceed twenty-five pages. A reply certification to opposing pleadings shall not exceed ten pages.

(c) Time for Service and Filing. A notice of motion, except for motions brought pursuant to R. 1:10-3 and motions involving the status of a child, filed more than 45 days after the entry of the written judgment of divorce or annulment, other than an ex parte motion, shall be served and filed, together with supporting affidavits and briefs, when necessary, not later than 29 days before the time specified for the return date. For example, a motion must be served and filed on the Thursday for a motion date falling on a Friday 29 days later. Any opposing affidavits, cross-motions or objections shall be served and filed not later than 15 days before the return date. For example, a response must be served and filed on a Thursday for a motion date falling on a Friday 15 days later. Answers or responses to any opposing affidavits and cross-motions shall be served and filed not later than 8 days before the return date. For example, such papers would have to be served and filed on a Thursday for a motion date falling on the Friday of the following week. If service is made by mail, 3 days shall be added to the above time periods.

(d) Advance Notice. Every motion shall include the following language: NOTICE TO LITIGANTS: IF YOU WANT TO RESPOND TO THIS MOTION YOU MUST DO SO IN WRITING. This written response shall be by affidavit or certification. (Affidavits and certifications are documents filed with the court. In either document the person signing it swears to its truth and acknowledges that they are aware that they can be punished for not filing a true statement with the court. Affidavits are notarized and certifications are not.) If you would also like to submit your own separate requests in a motion to the judge you can do so by filing a cross-motion. Your response and/or cross-motion may ask for oral argument. That means you can ask to appear before the court to explain your position. However, you must submit a written response even if you request oral argument. Any papers you send to the court must be sent to the opposing side, either to the attorney if the opposing party is represented by one, or to the other party if they represent themselves.

The response and/or cross-motion must be submitted to the court by a certain date. All pre-divorce motions, all enforcement motions (also known as motions for enforcement of litigants' rights, R. 1:10-3), or motions that deal with the status of children must be filed 16 days before the return date. (Since most motion days are on a Friday, motion papers must be filed on the Wednesday 16 days before.) Therefore, a response and/or cross motion must be filed eight days (Thursday) before the return date. All post-judgment motions, including all motions for modification of alimony, child support, custody, or parenting time/visitation must be filed 29 days (Thursday) before the (Friday) return date. Therefore, a response and/or cross-motion must be filed 15 days (Thursday) before the return date. If you mail in your papers you must add three days to the above time periods.

Response to motion papers sent to the court are to be sent to the following address: ______________. Call the Family Division Manager's office (_______) if you have any questions on how to file a motion, cross-motion or any response papers. Please note that the Family Division Manager's office cannot give you legal advice.

(e) Tentative Decisions. In any Family Part motion scheduled for oral argument pursuant to this rule, the motion judge prior to the motion date may tentatively decide the matter on the basis of the motion papers, posting the tentative decision and making it available to the parties. After such tentative decision has been made, unless either party renews the request for oral argument, that request shall be deemed withdrawn and the tentative decision shall become final and shall be set forth in an appropriate order. If, however, either party renews the request for oral argument, the motion shall be argued as scheduled. This tentative motion decision process shall be subject to the general supervision of the Family Presiding Judge of the vicinage.

(f) Orders on Family Part Motions. Absent good cause to the contrary, a written order shall be entered at the conclusion of each motion hearing.

Hire an experienced attorney when you have important legal needs. Typical fees for the Motion range between $1,500- $4,500 depending on work involved and experience level of the attorney.
The following is a portion of the additional information your attorney will need to draft a Motion:
1.
Your Full Name:
________________________________
First Name
_________________________________
Last Name

2.
Your Street Adress:
___________________________________________________________________

______________________________
City _______________
State _______________
Zip Code

3.
Telephone Number:
______________________________
Cell
______________________________
Day
______________________________
Night

4. Email Address: _____________________________________________________________

5. (a)Referred by: _____________________________________________________________

6.
Your Date of Birth:
________________________________
Month/Day/Year
Your Social Security Number
________________________________
7. Date of Marriage, if any

8.
Other Parent:
________________________________
First Name
_________________________________
Last Name

9.
Street Adress:
___________________________________________________________________

______________________________
City _______________
State _______________
Zip Code

10.
Name, Address, & Birthdate of all Child(ren); Person with whom Child(ren) reside with:
________________________________
Child's Full Name
________________________________
Child's Full Name
________________________________
Child's Full Name
________________________________
Child's Full Name
________________________________
Address
________________________________
Address
________________________________
Address
________________________________
Address
_______________
Birthdate
_______________
Birthdate
_______________
Birthdate
_______________
Birthdate
________________________
Reside With
________________________
Reside With
________________________
Reside With
________________________
Reside With
MISCELLANEOUS INFORMATION:
1. Name and Address of Your Employer (Provide Name and Address of Company if Self- Employed)
Name of Employer _______________________________ Address ___________________________
BRIEF DESCRIPTION OF SPECIFIC PROBLEMS OR CONCERN_____________________________________________________
_____________________________________________________________________________________________________________
_____________________________________________________________________________________________________________
_____________________________________________________________________________________________________________