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,
Thursday, December 5, 2019
Penalties set forth at 39:4-203 Fine or imprisonment not
exceeding 15 days, or both
fines $50 $200 plus court costs and possible non renewal by insurance company
2 points per 39:4-82 Failure to keep right
Plus 2 car insurance points per year
39:4-82. Keeping to right Upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive it on the right half of the roadway. He shall drive a vehicle as closely as possible to the right-hand edge or curb of the roadway, unless it is impracticable to travel on that side of the roadway, and except when overtaking and passing another vehicle subject to the provisions of sections 39:4-84 and 39:4-85 of this Title.
In New Jersey, there are drug laws that establish Schedules of illegal drugs. New Jersey does not call serious drug offenses "felonies." Instead, they are called "crimes."
2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition.
a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L. 1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to:
(1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S. 2C:43-3, a fine of up to $35,000.00 may be imposed;
(2) Any controlled dangerous substance, or its analog, classified in Schedule V, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S. 2C:43-3, a fine of up to $15,000.00 may be imposed;
(3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish is guilty of a crime of the fourth degree, except that, notwithstanding the provisions of subsection b. of N.J.S. 2C:43-3, a fine of up to $25,000.00 may be imposed; or
(4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person.
Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service.
b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person.
In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog.
c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute.
If charged with any criminal offense, immediately schedule an appointment with a criminal trial attorney. Do not rely on a real estate attorney, public defender, or a family member who simply attended law school. When your life and job are on the line, hire the best attorney available.
There are three kinds of commission: Corpus commission (Title 3b: 18-25), income commission (Title 3b: 18-24), and termination commission (Title 3b: 18-28).
3B:18-14 Corpus commissions.
3B:18-14. Corpus commissions. Commissions on all corpus received by the fiduciary may be taken as follows:
5% on the first $200,000 of all corpus received by the fiduciary;
3.5% on the excess over $200,000 up to $1,000,000;
2% on the excess over $1,000,000; and
1% of all corpus for each additional fiduciary provided that no one fiduciary shall be entitled to any greater commission than that which would be allowed if there were but one fiduciary involved.
Such commissions may be reduced by the court having jurisdiction over the estate only upon application by a beneficiary adversely affected upon an affirmative showing that the services rendered were materially deficient or that the actual pains, trouble and risk of the fiduciary in settling the estate were substantially less than generally required for estates of comparable size.
3B:18-16. Corpus commissions; unusual or extraordinary services? The court may, on an intermediate or the final settlement of the fiduciary's accounts, allow corpus commissions in addition to those hereinabove provided, on a showing that unusual or extraordinary services have been rendered by the fiduciary for which the fiduciary should receive extra compensation
3B:18-17. Taking annual amounts on account of corpus commissions? Fiduciaries may annually, without court allowance, take sums as follows on account of corpus commissions: if there is but one fiduciary, the amount so taken may equal one-fifth of 1% of the value of the corpus and, if there are two or more fiduciaries, the amount so taken may equal the commissions which may be taken pursuant to this section when there is but one fiduciary, plus one-fifth of the commissions for each fiduciary more than one.
3B:18-18. Value of assets for computing commissions taken annually in computing the amount of commissions which may be taken annually pursuant to N.J.S. 3B:18-17, the value of any item of corpus at the time when the item is received by the fiduciary, referred to in this section as the "presumptive value" of the item, may be used as the value of the item, or, at the option of the fiduciary, the value of the item at the end of the period for which the commissions are taken may be used.
3B:18-19. Failure to take commissions annually shall not constitute a waiver thereof the failure of a fiduciary to take commissions in any year as provided in N.J.S. 3B:18-17 shall not constitute a waiver of the right of the fiduciary to take in a subsequent year the commissions not taken for that year
3B:18-20. Corpus commissions taken annually subject to review? Commissions taken as provided in N.J.S. 3B:18-17 shall be subject to review on intermediate and final accountings, and to the extent that aggregate commissions so taken exceed the commissions allowable under N.J.S. 3B:18-14 and N.J.S. 3B:18-15, they may be disallowed.
These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.
You must call to schedule an in-office consultation as we cannot provide legal advice over the phone.
The following are some of the NJ Court Rule on Commissions
RULE 4:88. COMMISSIONS AND ATTORNEY'S FEE
4:88-1. Affidavit of Accountant's Services
If the allowance of such commissions is within the discretion of the court, the applicant therefor shall, upon every application for commissions on corpus, at least 20 days prior to the day on which the account is settled, file an affidavit stating in detail the nature of the services rendered in administering the estate and specifying the amount of the commissions requested.
4:88-2. Commission Payments Before Settlement
Whether or not annual commissions are taken pursuant to N.J.S.A. 3B:18-17, a fiduciary may apply to the court to which he or she is accountable for an ex parte order supported by appropriate affidavits for payment to the fiduciary on account of commissions on corpus for services to date. Such order shall not be binding on the beneficiaries, and the payment so ordered shall be subject to approval and allowance or to disallowance by the court upon the settlement of the fiduciary's account.
4:88-3. Notice as to Apportionment of Commissions
The court shall not apportion commissions among cofiduciaries unless proof is made that five days' notice of the application for apportionment has been given to those of them who do not appear.
For Probate and Estate Administration matters, schedule a confidential consultation with Kenneth Vercammen, 732-572-0500
Do you think you're entitled to money or might be entitled to money from an estate or trust? Do you believe that someone is unfairly claiming money or property that is rightfully yours? If so, and you are a prospective plaintiff or defendant, then you may need an attorney to protect your rights.
These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel.
You should call to schedule an in-office consultation.
The following New Jersey statute sets forth the Powers of Fiduciary/ Executor.
3B:14-23 Powers of a Fiduciary, Executor.
3B:14-23. Powers. In the absence of contrary or limiting provisions in the judgment or order appointing a fiduciary, in the will, deed or other instrument or in a subsequent court judgment or order, every fiduciary shall, in the exercise of good faith and reasonable discretion, have the power:
a. To accept additions to any estate or trust from sources other than the estate of the decedent, minor, mental incompetent or the settlor of a trust;
b. To acquire the remaining undivided interest in an estate or trust asset in which the fiduciary, in his fiduciary capacity, holds an undivided interest;
c. To invest and reinvest assets of the estate or trust under the provisions of the will, deed or other instrument or as otherwise provided by law and to exchange assets for investments and other property upon terms as may seem advisable to the fiduciary;
d. To effect and keep in force fire, rent, title, liability, casualty or other insurance to protect the property of the estate or trust and to protect the fiduciary;
e. With respect to any property or any interest therein owned by an estate or trust, including any real property belonging to the fiduciary's decedent at death, except where the property or any interest therein is specifically disposed of:
(1)To take possession of and manage the property and to collect the rents therefrom, and pay taxes, mortgage interest and other charges against the property;
(2)To sell the property at public or private sale, and on terms as in the opinion of the fiduciary shall be most advantageous to those interested therein;
(3)With respect to fiduciaries other than a trustee, to lease the property for a term not exceeding three years, and in the case of a trustee to lease the property for a term not exceeding 10 years, even though the term extends beyond the duration of the trust, and in either case including the right to explore for and remove mineral or other natural resources, and in connection with mineral leases to enter into pooling and unitization agreements;
(4)To mortgage the property;
(5)To grant easements to adjoining owners and utilities;
(6)A fiduciary acting under a will may exercise any of the powers granted by this subsection e. notwithstanding the effects upon the will of the birth of a child after its execution;
f. To make repairs to the property of the estate or trust for the purpose of preserving the property or rendering it rentable or saleable;
g. To grant options for the sale of any property of the estate or trust for a period not exceeding six months;
h. With respect to any mortgage held by the estate or trust to continue it upon and after maturity, with or without renewal or extension, upon terms as may seem advisable to the fiduciary and to foreclose, as an incident to collection of any bond or note, any mortgage and purchase the mortgaged property or acquire the property by deed from the mortgagor in lieu of foreclosure;
i. In the case of the survivor or survivors of two or more fiduciaries to administer the estate or trust without the appointment of a successor to the fiduciary or fiduciaries who have ceased to act and to exercise or perform all of the powers given unless contrary to the express provision of the will, deed or other instrument;
j. As a new, alternate, successor, substitute or additional fiduciary or fiduciaries, to have or succeed to all of the powers, duties and discretion of the original fiduciary or fiduciaries, with respect to the estate or trust, as were given to the original fiduciary or fiduciaries named in or appointed by a will, deed or other instrument, unless the exercise of the powers, duties or discretion of the original fiduciary or fiduciaries is expressly prohibited by the will, deed or other instrument to any successor or substitute fiduciary or fiduciaries;
k. Where there are three or more fiduciaries qualified to act, to take any action with respect to the estate or trust which a majority of the fiduciaries shall determine; a fiduciary who fails to act through absence or disability, or a dissenting fiduciary who joins in carrying out the decision of a majority of the fiduciaries if his dissent is expressed promptly in writing to his cofiduciaries, shall not be liable for the consequences of any majority decision, provided that liability for failure to join in administering the trust or to prevent a breach of trust may not thus be avoided;
l. To employ and compensate attorneys for services rendered to the estate or trust or to a fiduciary in the performance of his duties;
m. To compromise, contest or otherwise settle any claim in favor of the estate, trust or fiduciary or in favor of third persons and against the estate, trust or fiduciary, including transfer inheritance, estate, income and other taxes;
n. To vote in person or by proxy, discretionary or otherwise, shares of stock or other securities held by the estate or trust;
o. To pay calls, assessments and any other sums chargeable or accruing against or on account of shares of stock, bonds, debentures or other corporate securities in the hands of a fiduciary, whenever the payments may be legally enforceable against the fiduciary or any property of the estate or trust or the fiduciary deems payment expedient and for the best interests of the estate or trust;
p. To sell or exercise stock subscription or conversion rights, participate in foreclosures, reorganizations, consolidations, mergers or liquidations, and to consent to corporate sales or leases and encumbrances, and, in the exercise of those powers, the fiduciary is authorized to deposit stocks, bonds or other securities with any custodian, agent, protective or other similar committee, or trustee under a voting trust agreement, under terms and conditions respecting the deposit thereof as the fiduciary may approve;
q. To execute and deliver agreements, assignments, bills of sale, contracts, deeds, notes, receipts and any other instrument necessary or appropriate for the administration of the estate or trust;
r. In the case of a trustee:
(1)To hold two or more trusts or parts of trusts created by the same instrument, as an undivided whole, without separation as between the trusts or parts of the trusts, provided that separate trusts or parts of trusts shall have undivided interests and provided further that no holding shall defer the vesting of any estate in possession or otherwise;
(2)To divide a trust, before or after its initial funding, into two or more separate trusts, provided that such division will not materially impair the accomplishment of the trust purposes or the interests of any beneficiary. Distributions provided for by the governing instrument may be made from one or more of the separate trusts;
s. To distribute in kind any property of the estate or trust as provided in article 1 of chapter 23 of this title;
t. To join with the surviving spouse, the executor of his or her will or the administrator of his or her estate in the execution and filing of a joint income tax return for any period prior to the death of a decedent for which he has not filed a return or a gift tax return on gifts made by the decedent's surviving spouse, and to consent to treat the gifts as being made one-half by the decedent, for any period prior to a decedent's death, and to pay taxes thereon as are chargeable to the decedent;
u. To acquire or dispose of an asset, including real or personal property in this or another state, for cash or on credit, at public or private sale, and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;
v. To continue any business constituting the whole or any part of the estate for so long a period of time as the fiduciary may deem advisable and advantageous for the estate and persons interested therein;
w. In the case of a qualified bank as defined in section 1 of P.L. 1948, c.67 (C. 17:9A-1), and an out-of-State bank as defined in section 1 of P.L. 1948, c.67 (C. 17:9A-1), which has established a trust office in this State to purchase, sell and maintain for any fiduciary account, securities issued by an investment company which is operated and maintained in accordance with the Investment Company Act of 1940, 15 U.S.C.s. 80a-1 et seq., and for which the qualified bank or out-of-State bank is providing services as an investment advisor, investment manager, custodian or otherwise, including those for which it receives compensation, if:
(1)The investment is otherwise in accordance with applicable fiduciary standards; and
(2)The investment is authorized by the agreement or instrument creating the fiduciary account that gives the qualified bank or out-of-State bank investment authority, or by court order; or
(3)The qualified bank or out-of-State bank provides written notice not less than annually by prospectus, account statement or otherwise, disclosing to any current income beneficiaries of the trust the services provided by the qualified bank or its affiliate or out-of-State bank to the investment company, and the rate, formula, or other method by which compensation paid to the qualified bank or its affiliate or out-of-State bank is determined and the qualified bank or out-of-State bank does not receive a written objection from any current income beneficiary within 30 days after receipt of this notice. If a written objection is received from any current income beneficiary pursuant to this paragraph (3), no such investment of the trust assets of that fiduciary account shall be made or maintained.
Such investment shall not be deemed self-dealing or a fiduciary conflict; nor shall the fact that other beneficiaries of fiduciary accounts of the qualified bank or out-of-State bank have similar investments be deemed to be an improper commingling of assets by the qualified bank or out-of-State bank.
For purposes of this subsection, fiduciary account shall include a trust, estate, agency or other account in which funds, property, or both, are held by a qualified bank pursuant to section 28 of P.L. 1948, c.67 (C. 17:9A-28), or an account for which a qualified bank or out-of-State bank acts as investment advisor or manager or an account held by an out-of-State bank as defined in section 1 of P.L. 1948, c. 67 (C. 17:9A-1);
x. To employ and compensate accountants from the fiduciary fund for services rendered to the estate or trust or to a fiduciary in the performance of the fiduciary's duties, including the duty of a corporate or other fiduciary with respect to the preparation of accountings, without reduction in commissions due to the fiduciary, so long as such accountings are not the usual, customary or routine services provided by the fiduciary in light of the nature and skill of the fiduciary. In evaluating the actions of the fiduciary under this subsection, the court shall consider the size and complexity of the fiduciary fund, the length of time for which the accounting is rendered, and the increased risk and responsibilities imposed on fiduciaries as a result of revisions to laws affecting fiduciaries including, but not limited to, the Uniform Principal and Income Act, P.L. 2001, c.212 (C. 3B: 19B-1 et seq.) and the Prudent Investor Act, P.L. 1997, c.26 (C. 3B:20-11.1 et seq.) provided that such revisions of the laws affecting fiduciaries were enacted after the fiduciary responsibilities under the corresponding will, deed or other instrument, or court judgment or order, were imposed on, and assumed by, the fiduciary. For purposes of this subsection, Accountant means a person who is registered as a certified public accountant pursuant to the provisions of P.L. 1997, c.259 (C. 45:2B-42 et seq.), or an accounting firm which is organized for the practice of public accounting pursuant to the provisions of P.L. 1997, c.259 (C. 45:2B-42 et seq.) and P.L. 1969, c.232 (C. 14A:17-1 et seq.); and
y. The powers set forth in this section are in addition to any other powers granted by law, and by a will, deed or other instrument.
3B:14-24. Authorization to exercise other powers The court having jurisdiction of the estate or trust may authorize the fiduciary to exercise any other power which in the judgment of the court is necessary for the proper administration of the estate or trust.
3B:14-25. Payment of debt or delivery of certain personal property; requirements After the expiration of 60 days from the appointment of a domiciliary foreign fiduciary, any person indebted to the estate or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock or chose in action belonging to the estate may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock or chose in action, to the domiciliary foreign fiduciary upon being presented with a certificate of his letters or other proof of his authority and an affidavit made by or on his behalf stating:
a. The date of the letters of the domiciliary foreign fiduciary, or the date when he first received authority to act;
b. That no letters have issued in this State and no action therefor is pending in this State; and
c. That the domiciliary foreign fiduciary is entitled to payment or delivery.
For Probate and Estate Administration matters, schedule a confidential consultation with Kenneth Vercammen, 732-572-0500
KENNETH VERCAMMEN, ESQ.
RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE
Edison Adult School -Wills, Elder Law & Probate- 2011, 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997 Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002; Temple Beth Or 2002; Hall's Corner/ East Brunswick 2002; -Linden AARP 2002 -Woodbridge Adult School -Wills and Estate Administration -2001, 2000,1999,1998,1997,1996 Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001; -Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993 -Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995 -AARP Participating Attorney in Legal Plan for NJ AARP members -Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peter's-2000, 1999,1998 -East Brunswick AARP Wills 2001 -Iselin/ Woodbridge AARP Wills 2000 -Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001 -North Brunswick Senior Day 2001 -Wills, Elder Law and Probate-South Brunswick Adult School & Channel 28 TV 1999, 1997,1993 -Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995 -Senior Citizen Law-Perth Amboy YMHA 1995 -Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993 -Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994 -Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994 -Wills and Estate Planning-Edison Elks and Senior Citizens January 1994 -Legal Questions Clinic Metuchen Adult School March 1995,1994,1993 -Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993 -Living Wills-Dean Witter and Nordstroms, Menlo Park Mall October 1992; Trusts and Living Wills-Dean Witter, Metro Park, June 1992; Estate Planning-North Brunswick Republican Club May 1992; -Wills and Power of Attorney 1991 Edison Democratic Association Other Seminars -Automobile Insurance - Middlesex County College - 1990 -Criminal & Juvenile Courts Piscataway Vo Tech - 1990 Defending Speeding Cases - New Jersey State Bar Association/NJSBA - 1989 Self Defense and Home Protection - Speaker - New Brunswick Crime Watch - 1989
New Jersey State Bar Association -General Practice Section-Board of Directors 1995- Present
ADJUNCT PROFESSOR Middlesex County College Edison, NJ February, 2001-April, 2001; Jan. 1990-May, 1991
Fortunately, if you are a law abiding citizen, you can now have old arrests or convictions erased from public records and police folders. Under NJSA 2C:52-1 et seq. past criminal convictions can be expunged' erased under certain instances. For example, if you were convicted or pleaded guilty to a disorderly person offense (misdemeanor type) more than 5 years ago, and have not been convicted of anything since, you can have your attorney petition to the Superior Court for an Expungement (Erase and removal) of your criminal record. If you plead guilty to a town ordinance (ex. - Seaside Heights Drinking in Public) you can petition for an Expungement after waiting two years. A Juvenile delinquent/guilty finding for a minor can also be expunged/erased under similar circumstances. In addition, minor drug arrests which resulted in first offender conditional discharge can be erased if one year has passed since termination of probation or conclusion of court proceedings.
Most importantly, arrests on frivolous complaints which did not result in a conviction or if charges were dismissed, can be expunged, without waiting. THE EXPUNGEMENT PETITION
You should contact an attorney experienced with handling expungements in the Superior Court. Your attorney will prepare an expungement petition which under state law must contain substantial background information, including:
a. Date of Birth and Social Security #
b. Date of Arrest
c. Statute Arrested For and Statute Convicted
d. Original Indictment, Summons, or Complaint Number
e. Petitioner's Date of Conviction or Date of Disposition
f. Court's Disposition of the Matter and Punishment Adopted, if Any
In addition, the Expungement Petition must have an affidavit that states that there are no charges pending and that the petitioner never previously received a prior expungement. The Expungement Petition is filed in the county where the offense took place, not where the defendant lives. Once filed, the Superior Court will set a hearing within 35-60 days.
As required under the statute, the attorney for the applicant must serve a copy of the Petition Order for hearing and supporting documents on the following people:
1. Superintendent of State Police 2. Attorney General 3. County Prosecutor of the county where the court is located 4. The Chief of Police where the event took place 5. The chief law enforcement officer of any law enforcement agency which participated in the arrest 6. The warden of any institution where the petitioner was confined, and 7. If the disposition was made by a municipal court, upon the municipal court which heard the case.
If you satisfy all other statutory requirements and there is no objection by the entities notified, the court will usually grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge (remove) records of said disposition including evidence of arrest, detention, conviction, and proceedings.
There are additional pleadings which the applicant's attorney must prepare and file. If you have an old offense, it is important that you have the arrest expunged to keep your name and record clean.
Expungement statute was reviewed in recent cases
2C:52-1. Definition of expungement a. Except as otherwise provided in this chapter, expungement shall mean the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.
b. Expunged records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, "rap sheets" and judicial docket records.
L.1979, c. 178, s. 108, eff. Sept. 1, 1979.
2C:52-2. Indictable offenses 2C:52-2. Indictable Offenses.
a. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.
b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.
Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); section 2C:13-6 (Luring or Enticing); section 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b(4) (Endangering the welfare of a child); section 2C:28-1 (Perjury); section 2C:28-2 (False Swearing) and conspiracies or attempts to commit such crimes.
Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.
c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes relate to:
(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less, or
(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less.
d. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.
Amended 1989,c.300,s.23; 1993,c.301; 1994,c.133,s.6.
2C:52-3. Disorderly persons offenses and petty disorderly persons offenses Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 hereof to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.
L.1979, c. 178, s. 110, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 43, eff. Sept. 24, 1981.
2C:52-4. Ordinances In all cases wherein a person has been found guilty of violating a municipal ordinance of any governmental entity of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and who has not been adjudged a disorderly person or petty disorderly person on more than two occasions, may, after the expiration of a period of 2 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 herein to the Superior Court in the county in which the violation occurred praying that such conviction and all records and information pertaining thereto be expunged.
L.1979, c. 178, s. 111, eff. Sept. 1, 1979.
2C:52-4.1. Juvenile delinquent; expungement of adjudications and charges a. Any person adjudged a juvenile delinquent may have such adjudication expunged as follows:
(1) Pursuant to N.J.S. 2C:52-2, if the act committed by the juvenile would have constituted a crime if committed by an adult;
(2) Pursuant to N.J.S. 2C:52-3, if the act committed by the juvenile would have constituted a disorderly or petty disorderly persons offense if committed by an adult; or
(3) Pursuant to N.J.S. 2C:52-4, if the act committed by the juvenile would have constituted an ordinance violation if committed by an adult.
For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult.
b. Additionally, any person who has been adjudged a juvenile delinquent may have his entire record of delinquency adjudications expunged if:
(1) Five years have elapsed since the final discharge of the person from legal custody or supervision or 5 years have elapsed after the entry of any other court order not involving custody or supervision;
(2) He has not been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the 5 years prior to the filing the petition, and no proceeding or complaint is pending seeking such a conviction or adjudication;
(3) He was never adjudged a juvenile delinquent on the basis of an act which if committed by an adult would constitute a crime not subject to expungement under N.J.S. 2C:52-2;
(4) He has never had an adult conviction expunged; and
(5) He has never had adult criminal charges dismissed following completion of a supervisory treatment or other diversion program.
c. Any person who has been charged with an act of delinquency and against whom proceedings were dismissed may have the filing of those charges expunged pursuant to the provisions of N.J.S. 2C:52-6.
L.1980, c. 163, s. 1. Amended by L.1981, c. 290, s. 44, eff. Sept. 24, 1981.
2C:52-5. Expungement of records of young drug offenders Expungement of Records of Young Drug Offenders. Notwithstanding the provisions of sections 2C:52-2 and 2C:52-3, after a period of not less than one year following conviction, termination of probation or parole or discharge from custody, whichever is later, any person convicted of an offense under chapters 35 or 36 of this title for the possession or use of a controlled dangerous substance, convicted of violating P.L. 1955, c. 277, s. 3 (C. 2A:170-77.5), or convicted of violating P.L. 1962, c. 113, s. 1 (C. 2A:170-77.8), and who at the time of the offense was 21 years of age or younger, may apply to the Superior Court in the county wherein the matter was disposed of for the expungement of such person's conviction and all records pertaining thereto. The relief of expungement under this section shall be granted only if said person has not, prior to the time of hearing, violated any of the conditions of his probation or parole, albeit subsequent to discharge from probation or parole, has not been convicted of any previous or subsequent criminal act or any subsequent or previous violation of chapters 35 or 36 of this title or of P.L. 1955, c. 277, s. 3 (C. 2A:170-77.5) or of P.L. 1962, c. 113, s. 1 (C. 2A:170-77.8), or who has not had a prior or subsequent criminal matter dismissed because of acceptance into a supervisory treatment or other diversion program.
This section shall not apply to any person who has been convicted of the sale or distribution of a controlled dangerous substance or possession with the intent to sell any controlled dangerous substance except:
(1) Marihuana, where the total sold, distributed or possessed with intent to sell was 25 grams or less, or
(2) Hashish, where the total amount sold, distributed or possessed with intent to sell was 5 grams or less.
L. 1979, c. 178, s. 111; amended by L. 1987, c. 106, s. 16. 2C:52-6. Arrests not resulting in conviction a. In all cases, except as herein provided, wherein a person has been arrested or held to answer for a crime, disorderly persons offense, petty disorderly persons offense or municipal ordinance violation under the laws of this State or of any governmental entity thereof and against whom proceedings were dismissed, or who was acquitted, or who was discharged without a conviction or finding of guilt, may at any time following the disposition of proceedings, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the disposition occurred praying that records of such arrest and all records and information pertaining thereto be expunged.
b. Any person who has had charges dismissed against him pursuant to P.L.1970, c. 226, s. 27 (C. 24:21-27) or pursuant to a program of supervisory treatment, shall be barred from the relief provided in this section until 6 months after the entry of the order of dismissal.
c. Any person who has been arrested or held to answer for a crime shall be barred from the relief provided in this section where the dismissal, discharge, or acquittal resulted from a determination that the person was insane or lacked the mental capacity to commit the crime charged.
L.1979, c. 178, s. 113, eff. Sept. 1, 1979.
2C:52-7. Petition for expungement Every petition for expungement filed pursuant to this chapter shall be verified and include:
a. Petitioner's date of birth.
b. Petitioner's date of arrest.
c. The statute or statutes and offense or offenses for which petitioner was arrested and of which petitioner was convicted.
d. The original indictment, summons or complaint number.
e. Petitioner's date of conviction, or date of disposition of the matter if no conviction resulted.
f. The court's disposition of the matter and the punishment imposed, if any.
L.1979, c. 178, s. 114, eff. Sept. 1, 1979.
2C:52-8. Statements to accompany petition There shall be attached to a petition for expungement:
a. A statement with the affidavit or verification that there are no disorderly persons, petty disorderly persons or criminal charges pending against the petitioner at the time of filing of the petition for expungement.
b. In those instances where the petitioner is seeking the expungement of a criminal conviction, a statement with affidavit or verification that he has never been granted expungement, sealing or similar relief regarding a criminal conviction by any court in this State or other state or by any Federal court. "Sealing" refers to the relief previously granted pursuant to P.L.1973, c. 191 (C. 2A:85-15 et seq.).
c. In those instances where a person has received a dismissal of a criminal charge because of acceptance into a supervisory treatment or any other diversion program, a statement with affidavit or verification setting forth the nature of the original charge, the court of disposition and date of disposition.
L.1979, c. 178, s. 115, eff. Sept. 1, 1979.
2C:52-9. Order fixing time for hearing Upon the filing of a petition for relief pursuant to this chapter, the court shall, by order, fix a time not less than 35 nor more than 60 days thereafter for hearing of the matter.
L.1979, c. 178, s. 116, eff. Sept. 1, 1979.
2C:52-10. Service of petition and documents A copy of each petition, together with a copy of all supporting documents, shall be served pursuant to the rules of court upon the Superintendent of State Police; the Attorney General; the county prosecutor of the county wherein the court is located; the chief of police or other executive head of the police department of the municipality wherein the offense was committed; the chief law enforcement officer of any other law enforcement agency of this State which participated in the arrest of the individual; the superintendent or warden of any institution in which the petitioner was confined; and, if a disposition was made by a municipal court, upon the magistrate of that court. Service shall be made within 5 days from the date of the order setting the date for the hearing upon the matter.
L.1979, c. 178, s. 117, eff. Sept. 1, 1979.
2C:52-11. Order expungement where no objection prior to hearing If, prior to the hearing, there is no objection from those law enforcement agencies notified or from those offices or agencies which are required to be served under 2C:52-10, and no reason, as provided in section 2C:52-14, appears to the contrary, the court may, without a hearing, grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge records of said disposition including evidence of arrest, detention, conviction and proceedings related thereto.
L.1979, c. 178, s. 118, eff. Sept. 1, 1979.
2C:52-12. Denial of relief although no objection entered In the event that none of the persons or agencies required to be noticed under 2C:52-10 has entered any objection to the relief being sought, the court may nevertheless deny the relief sought if it concludes that petitioner is not entitled to relief for the reasons provided in section 2C:52-14.
L.1979, c. 178, s. 119, eff. Sept. 1, 1979.
2C:52-13. When hearing on petition for expungement shall not be held No petition for relief made pursuant to this section shall be heard by any court if the petitioner, at the time of filing or date of hearing, has a charge or charges pending against him which allege the commission of a crime, disorderly persons offense or petty disorderly persons offense. Such petition shall not be heard until such times as all pending criminal and or disorderly persons charges are adjudicated to finality.
L.1979, c. 178, s. 120, eff. Sept. 1, 1979.
2C:52-14. Grounds for denial of relief A petition for expungement filed pursuant to this chapter shall be denied when:
a. Any statutory prerequisite, including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief.
b. The need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in this chapter. An application may be denied under this subsection only following objection of a party given notice pursuant to 2C:52-10 and the burden of asserting such grounds shall be on the objector.
c. In connection with a petition under section 2C:52-6, the acquittal, discharge or dismissal of charges resulted from a plea bargaining agreement involving the conviction of other charges. This bar, however, shall not apply once the conviction is itself expunged.
d. The arrest or conviction sought to be expunged is, at the time of hearing, the subject matter of civil litigation between the petitioner or his legal representative and the State, any governmental entity thereof or any State agency and the representatives or employees of any such body.
e. A person has had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, and the present petition. This provision shall not apply:
(1) When the person is seeking the expungement of a municipal ordinance violation or,
(2) When the person is seeking the expungement of records pursuant to section 2C:52-6.
f. The person seeking the relief of expungement of a conviction for a disorderly persons, petty disorderly persons, or criminal offense has prior to or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program.
L.1979, c. 178, s. 121, eff. Sept. 1, 1979.
2C:52-15. Records to be removed; control If an order of expungement of records of arrest or conviction under this chapter is granted by the court, all the records specified in said order shall be removed from the files of the agencies which have been noticed of the pendency of petitioner's motion and which are, by the provisions of this chapter, entitled to notice, and shall be placed in the control of a person who has been designated by the head of each such agency which, at the time of the hearing, possesses said records. That designated person shall, except as otherwise provided in this chapter, insure that such records or the information contained therein are not released for any reason and are not utilized or referred to for any purpose. In response to requests for information or records of the person who was arrested or convicted, all noticed officers, departments and agencies shall reply, with respect to the arrest, conviction or related proceedings which are the subject of the order, that there is no record information.
L.1979, c. 178, s. 122, eff. Sept. 1, 1979.
2C:52-16. Expunged record including names of persons other than petitioner Any record or file which is maintained by a judicial or law enforcement agency, or agency in the criminal justice system, which is the subject of an order of expungement which includes the name or names of persons other than that of the petitioner need not be isolated from the general files of the agency retaining same if the other persons named in said record or file have not been granted an order of expungement of said record, provided that a copy of the record shall be given to the person designated in 2C:52-15 and the original shall remain in the agency's general files with the petitioner's name and other personal identifiers obliterated and deleted.
L.1979, c. 178, s. 123, eff. Sept. 1, 1979.
2C:52-17. Use of expunged records by agencies on pending petition for expungement Expunged records may be used by the agencies that possess same to ascertain whether a person has had prior conviction expunged, or sealed under prior law, when the agency possessing the record is noticed of a pending petition for the expungement of a conviction. Any such agency may supply information to the court wherein the motion is pending and to the other parties who are entitled to notice pursuant to 2C:52-10.
L.1979, c. 178, s. 124, eff. Sept. 1, 1979 2C:52-18. Supplying information to violent crimes compensation board Information contained in expunged records may be supplied to the Violent Crimes Compensation Board, in conjunction with any claim which has been filed with said board.
L.1979, c. 178, s. 125, eff. Sept. 1, 1979.
2C:52-19. Order of superior court permitting inspection of records or release of information; limitations Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. The motion or any order granted pursuant thereto shall specify the person or persons to whom the records and information are to be shown and the purpose for which they are to be utilized. Leave to inspect shall be granted by the court only in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings. Such records may not be inspected or utilized in any subsequent civil or criminal proceeding for the purposes of impeachment or otherwise but may be used for purposes of sentencing on a subsequent offense after guilt has been established.
L.1979, c. 178, s. 126, eff. Sept. 1, 1979.
2C:52-20. Use of expunged records in conjunction with supervisory treatment or diversion programs Expunged records may be used by any judge in determining whether to grant or deny the person's application for acceptance into a supervisory treatment or diversion program for subsequent charges. Any expunged records which are possessed by any law enforcement agency may be supplied to the Attorney General, any county prosecutor or judge of this State when same are requested and are to be used for the purpose of determining whether or not to accept a person into a supervisory treatment or diversion program for subsequent charges.
L.1979, c. 178, s. 127, eff. Sept. 1, 1979. 2C:52-21. Use of expunged records in conjunction with setting bail, presentence report or sentencing Expunged records, or sealed records under prior law, of prior arrests or convictions shall be provided to any judge, county prosecutor, probation department or the Attorney General when same are requested for use in conjunction with a bail hearing or for the preparation of a persistence report or for purpose of sentencing.
L.1979, c. 178, s. 128, eff. Sept. 1, 1979.
2C:52-22. Use of expunged records by parole board Expunged records, or sealed records under prior law, of prior disorderly persons, petty disorderly persons and criminal convictions shall be provided to the Parole Board when same are requested for the purpose of evaluating the granting of parole to the person who is the subject of said records. Such sealed or expunged records may be used by the Parole Board in the same manner and given the same weight in its considerations as if the records had not been expunged or sealed.
L.1979, c. 178, s. 129, eff. Sept. 1, 1979.
2C:52-23. Use of expunged records by department of corrections Expunged records, and records sealed under prior law, shall be provided to the Department of Corrections for its use solely in the classification, evaluation and assignment to correctional and penal institutions of persons placed in its custody.
L.1979, c. 178, s. 130, eff. Sept. 1, 1979. 2C:52-24. County prosecutor's obligation to ascertain propriety of petition Notwithstanding the notice requirements provided herein, it shall be the obligation of the county prosecutor of the county wherein any petition for expungement is filed to verify the accuracy of the allegations contained in the petition for expungement and to bring to the court's attention any facts which may be a bar to, or which may make inappropriate the granting of, such relief. If no disabling, adverse or relevant information is ascertained other than that as included in the petitioner's affidavit, such facts shall be communicated by the prosecutor to the hearing judge.
L.1979, c. 178, s. 131, eff. Sept. 1, 1979.
2C:52-25. Retroactive application This chapter shall apply to arrests and convictions which occurred prior to, and which occur subsequent to, the effective date of this act.
L.1979, c. 178, s. 132, eff. Sept. 1, 1979.
2C:52-26. Vacating of orders of sealing; time; basis If, within 5 years of the entry of an expungement order, any party to whom notice is required to be given pursuant to section 2C:52-10 notifies the court which issued the order that at the time of the petition or hearing there were criminal, disorderly persons or petty disorderly persons charges pending against the person to whom the court granted such order, which charges were not revealed to the court at the time of hearing of the original motion or that there was some other statutory disqualification, said court shall vacate the expungement order in question and reconsider the original motion in conjunction with the previously undisclosed information.
L.1979, c. 178, s. 133, eff. Sept. 1, 1979. 2C:52-27. Effect of expungement Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the petitioner may answer any questions relating to their occurrence accordingly, except as follows:
a. The fact of an expungement, sealing or similar relief shall be disclosed as provided in section 2C:52-8b.
b. The fact of an expungement of prior charges which were dismissed because of the person's acceptance into and successful completion of a supervisory treatment or other diversion program shall be disclosed by said person to any judge who is determining the propriety of accepting said person into a supervisory treatment or other diversion program for subsequent criminal charges; and
c. Information divulged on expunged records shall be revealed by a petitioner seeking employment within the judicial branch or with a law enforcement or corrections agency and such information shall continue to provide a disability as otherwise provided by law.
L.1979, c. 178, s. 134, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 45, eff. Sept. 24, 1981.
2C:52-27.1 Petition to rescind order of debarment for health care claims fraud.
5. a. If an order of expungement of records of conviction under the provisions of chapter 52 of Title 2C of the New Jersey Statutes is granted by the court to a person convicted of health care claims fraud in which the court had ordered the offender's professional license be forfeited and the person be forever barred from the practice of the profession pursuant to paragraph (1) of subsection a. of section 4 of P.L.1997, c.353 (C.2C:51-5), the person may petition the court for an order to rescind the court's order of debarment if the person can demonstrate that the person is sufficiently rehabilitated.
b.If an order to rescind the court's order of debarment is granted, the person granted the order may apply to be licensed to practice the profession from which the offender was barred.
2C:52-28. Motor vehicle offenses Nothing contained in this chapter shall apply to arrests or conviction for motor vehicle offenses contained in Title 39.
L.1979, c. 178, s. 135, eff. Sept. 1, 1979.
2C:52-29. Fee Any person who files an application pursuant to this chapter shall pay to the State Treasurer a fee of $30.00 to defer administrative costs in processing an application hereunder.
L.1979, c. 178, s. 136, eff. Sept. 1, 1979.
2C:52-30. Disclosure of expungement order Except as otherwise provided in this chapter, any person who reveals to another the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged or sealed is a disorderly person. Notwithstanding the provisions of section 2C:43-3, the maximum fine which can be imposed for violation of this section is $200.00.
L.1979, c. 178, s. 137, eff. Sept. 1, 1979.
2C:52-31. Limitation Nothing provided in this chapter shall be interpreted to permit the expungement of records contained in the Controlled Dangerous Substances Registry created pursuant to P.L.1970, c. 227 (C. 26:2G-17 et seq.), or the registry created by the Administrative Office of the Courts pursuant to section 2C:43-21.
L.1979, c. 178, s. 138, eff. Sept. 1, 1979.
2C:52-32. Construction This chapter shall be construed with the primary objective of providing relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity, but not to create a system whereby periodic violators of the law or those who associate themselves with criminal activity have a regular means of expunging their police and criminal records.
L.1979, c. 178, s. 139, eff. Sept. 1, 1979.
RULE 902. SELF-AUTHENTICATION Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (a) New Jersey public documents. A document purporting to bear a signature affixed in an official capacity by an officer or employee of the State of New Jersey or of a political subdivision, department, office, or agency thereof. (b) Other domestic public documents. A document (1) bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory, or possession thereof, or of a political subdivision, department, office, or agency thereof, and a signature purporting to be an attestation or execution, or (2) purporting to bear a signature affixed in an official capacity by an officer or employee of such an entity, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer had the official capacity and that the signature is genuine. (c) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, provided that either an apostille is affixed to the document certifying its genuineness pursuant to international agreement to which the United States is a party or the document is accompanied by a final certification as to the genuineness of the signature and official position (1) of the executing or attesting person, or (2) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. (d) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (a), (b), or (c) of this rule or complying with any law or rule of court. (e) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. (f) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals. (g) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. (h) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. (i) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by applicable commercial law. (j) Presumption under statute. Any signature, document, or other matter declared by state or federal law to be presumptively or prima facie genuine or authentic. (k) Certificate of lack of record. A writing asserting the absence of an official record authenticated in the manner prescribed for public documents in paragraph (a), (b), or (c) of this rule.
RULE 903. TESTIMONY OF SUBSCRIBING WITNESS UNNECESSARY The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the law of the jurisdiction whose law governs the validity of the writing.
RULE 802. HEARSAY RULE Hearsay is not admissible except as provided by these rules or by other law.
RULE 803. HEARSAY EXCEPTIONS NOT DEPENDENT ON DECLARANT'S UNAVAILABILITY The following statements are not excluded by the hearsay rule: (a) Prior statements of witnesses. A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:
(1) is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability or (B) was given under oath subject to the penalty of perjury at a trial or other judicial, quasi-judicial, legislative, administrative or grand jury proceeding, or in a deposition; or (2) is consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive; or (3) is a prior identification of a person made after perceiving that person if made in circumstances precluding unfairness or unreliability.
(b) Statement by party-opponent. A statement offered against a party which is:
(1) the party's own statement, made either in an individual or in a representative capacity, or (2) a statement whose content the party has adopted by word or conduct or in whose truth the party has manifested belief, or (3) a statement by a person authorized by the party to make a statement concerning the subject, or (4) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (5) a statement made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan.
In a criminal proceeding, the admissibility of a defendant's statement which is offered against the defendant is subject to Rule 104(c). (c) Statements not dependent on declarant's availability. Whether or not the declarant is available as a witness:
(1) Present sense impression. A statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate. (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate. (3) Then existing mental, emotional, or physical condition. A statement made in good faith of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. (4) Statements for purposes of medical diagnosis or treatment. Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment. (5) Recorded recollection. A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness himself or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; provided that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection. (6) Records of regularly conducted activity. A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy. (7) Absence of an entry in records of regularly conducted activity. Evidence that a matter is not included in a writing or other record kept in accordance with the provisions of Rule 803(c)(6), when offered to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a writing or other record was regularly made and preserved, unless the sources of information or other circumstances indicate that the inference of nonoccurrence or nonexistence is not trustworthy. (8) Public records, reports, and findings. Subject to Rule 807, (A) a statement contained in a writing made by a public official of an act done by the official or an act, condition, or event observed by the official if it was within the scope of the official's duty either to perform the act reported or to observe the act, condition, or event reported and to make the written statement, or (B) statistical findings of a public official based upon a report of or an investigation of acts, conditions, or events, if it was within the scope of the official's duty to make such statistical findings, unless the sources of information or other circumstances indicate that such statistical findings are not trustworthy. (9) Records of vital statistics. Subject to Rule 807, a statement contained in any form such as records of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. (10) Absence of public record or entry. Subject to Rule 807, a certification in accordance with Rule 902 stating that diligent search failed to disclose a public record, report, writing, or entry when offered to prove (A) the absence of a public record, report, writing, or entry, or (B) the nonoccurrence or nonexistence of a matter of which a record, report, writing, or entry is regularly made and preserved by a public office or agency, unless the sources of information or other circumstances indicate that the inference of nonoccurrence or nonexistence is not trustworthy. (11) Records of religious organizations. Subject to Rule 807, statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. (12) Marriage, baptismal, and similar certificates. Subject to Rule 807, statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter. (13) Family records. Subject to Rule 807, statements of fact concerning a personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. (14) Records of documents affecting an interest in property. Subject to Rule 807, the record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording of documents of that kind in that office. (15) Statements in documents affecting an interest in property. Subject to Rule 807, a statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. (16) Statements in ancient documents. Statements in a document in existence 30 years or more whose authenticity is established. (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. (18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by testimony or by judicial notice. If admitted, the statements may not be received as exhibits but may be read into evidence or, if graphics, shown to the jury. (19) Reputation concerning personal or family history. Evidence of a person's reputation, among members of the person's family by blood, adoption, or marriage, or among that person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, ancestry, relationship by blood, adoption, or marriage, or other similar fact of the person's personal or family history. (20) Reputation concerning boundaries or general history. Evidence of reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and as to events of general history important to the community or state or nation in which the community is located. (21) Reputation as to character. Evidence of reputation of a person's character at a relevant time among the person's associates or in the community. (22) Judgments of previous conviction of crime. In a civil proceeding, except as otherwise provided by court order on acceptance of a plea, evidence of a final judgment against a party adjudging him guilty of an indictable offense in New Jersey or of an offense which would constitute an indictable offense if committed in this state, as against that party, to prove any fact essential to sustain the judgment. (23) Judgment as to personal, family, or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if those matters would be provable by evidence of reputation. (24) Other exceptions. [Not Adopted] (25) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid declarant's claim against another, that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true. Such a statement is admissible against an accused in a criminal action only if the accused was the declarant. (26) Judgments against persons entitled to indemnity. Subject to Rule 807 and except in a proceeding brought under the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 et seq., the record of a final judgment is admissible if offered by the judgment debtor in an action in which he seeks to recover partial or total indemnity or exoneration for money paid or a liability incurred because of the judgment, as evidence of the liability of the judgment debtor, of the facts on which the judgment is based, and of the reasonableness of the damages recovered. If the defendant in the second action had notice of and opportunity to defend the first action, the judgment is conclusive evidence. (27) Statements by a child relating to a sexual offense. A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if (a) the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement at such time as to provide him with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse; provided that no child whose statement is to be offered in evidence pursuant to this rule shall be disqualified to be a witness in such proceeding by virtue of the requirements of Rule 601.
(Adopted effective July 1, 1993.)
RULE 804. HEARSAY EXCEPTIONS: DECLARANT UNAVAILABLE (a) Definition of unavailable. Except when the declarant's unavailability has been procured or wrongfully caused by the proponent of declarant's statement for the purpose of preventing declarant from attending or testifying, a declarant is "unavailable" as a witness if declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the statement; or (2) persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the statement; or (4) is absent from the hearing because of death, physical or mental illness or infirmity, or other cause, and the proponent of the statement is unable by process or other reasonable means to procure the declarant's attendance at trial, and, with respect to statements proffered under Rules 804(b)(4) and (7), the proponent is unable, without undue hardship or expense, to obtain declarant's deposition for use in lieu of testimony at trial; or (5) Deleted - see N.J.R.E. 803(c)(27).
(b) Hearsay exceptions. Subject to Rule 807, the following are not excluded by the hearsay rule if the declarant is unavailable as a witness.
(1) Testimony in prior proceedings.
(A) Testimony given by a witness at a prior trial of the same or a different matter, or in a hearing or deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive in the prior trial, hearing or proceeding to develop the testimony by examination or cross-examination. (B) In a civil action or proceeding, and only when offered by the defendant in a criminal action or proceeding, testimony given in a prior trial, hearing or deposition taken pursuant to law to which the party against whom the testimony is now offered was not a party, if the party who offered the prior testimony or against whom it was offered had an opportunity to develop the testimony on examination or cross-examination and had an interest and motive to do so which is the same or similar to that of the party against whom it is now offered. Expert opinion testimony given in a prior trial, hearing, or deposition may be excluded, however, if the judge finds that there are experts of a like kind generally available within a reasonable distance from the place in which the action is pending and the interests of justice so require. (2) Statement under belief of imminent death. In a criminal proceeding, a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death. (3)Statement against interest--Adopted as Rule 803(c)(25) (4) Statement of personal or family history. A statement (A) concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, ancestry, relationship by blood, adoption, or marriage, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) concerning the foregoing matters, and the death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matters declared. (5) Other Exceptions--not adopted (6) Trustworthy statements by deceased declarants. In a civil proceeding, a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant's personal knowledge in circumstances indicating that it is trustworthy. (7) Voters' statements. A statement by a voter concerning the voter's qualifications to vote or the fact or content of the voter's vote. (8) Deleted - see N.J.R.E. 803(c)(27)
RULE 805. HEARSAY WITHIN HEARSAY A statement within the scope of an exception to Rule 802 shall not be inadmissible on the ground that it includes a statement made by another declarant which is offered to prove the truth of its contents if the included statement itself meets the requirements of an exception to Rule 802.
RULE 806. ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or other conduct by a declarant, inconsistent with the declarant's hearsay statement received in evidence, is admissible although declarant had no opportunity to deny or explain it. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, that party is entitled to examine the declarant on the statement as if under cross-examination.
RULE 807. DISCRETION OF JUDGE TO EXCLUDE EVIDENCE UNDER CERTAIN EXCEPTIONS Except if offered by an accused in a criminal proceeding, when any statement is admissible by reason of Rules 803(c)(8), 803(c)(9), 803(c)(10), 803(c)(11), 803(c)(12), 803(c)(13), 803(c)(14), 803(c)(15), 803(c)(26) or 804(b), the judge may exclude it at the trial if it appears that the proponent's intention to offer the statement in evidence was not made known to the adverse party at such time as to provide that party with a fair opportunity to meet it.
RULE 808. EXPERT OPINION INCLUDED IN A HEARSAY STATEMENT ADMISSIBLE UNDER AN EXCEPTION Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
HISTORY:Adopted September 15, 1992 to be effective July 1, 1993.