Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Friday, April 29, 2011

Disability - New articles, ABA newsletters and Community Events

Disability

Edited by Kenneth A. Vercammen, Esq.

No one plans on being injured in an accident, whether it is a fall down or other situation. Speak with a personal injury attorney immediately to retain all your rights. The businesses are responsible for the maintenance of their premises. It is the duty of the site manager to inspect and keep the construction site in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to workers and persons lawfully thereon.

When the Workers Compensation Act was passed many years ago it was probably the first true no fault law in this State. With some very narrow exceptions, the question of negligence (fault) is not an issue if a worker is hurt on the job. Whether or not the employer is at fault has no impact on the worth of a case. In workers comp, employees can bring a claim against their employers worker comp carrier. However, employees cannot file a formal lawsuit against their employer. Financial recovery is limited by state law in workers comp cases. If their injury at the construction site was caused by negligence of someone who is not your employer or another employee, a civil lawsuit in Superior Court. In lawsuits, negligence must be proved against someone other than the employer.

It is the duty of the owner to properly and adequately inspect, maintain and keep the premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as an employee or business invitee in the exercise of due care on your part. If severely injured, and the negligence was of someone other than your employer, you can retain an attorney to file a lawsuit for damages, together with costs of suit. Injured people in lawsuits can demand trial by jury. Jury trials are not permitted in workers compensation cases. The Appellate Division court in RAIMO v. FISCHERA __ NJ Super. __ docket 2201-03T5A held contractors duty of care for persons who come onto a construction site is governed by general negligence principles, which require a contractor to exercise reasonable care to maintain the site in a safe condition for any persons who the contractor may reasonably expect to come onto the site, rather than by the common law doctrine of premises liability, under which the landowners tort liability is determined by the injured persons classification as a business invitee, licensee, or trespasser.

WHAT TO TRY TO DO AT THE ACCIDENT SCENE IF INJURED

1. Stop . . . do not leave the scene of the accident. CALL 911, tell them where the accident occurred and (ask for medical help if needed). 2. Notify the property manager or owner, if possible. Insist they observe where you were injured. 3. Get names and addresses of all witnesses. Witnesses will be a tremendous help to you in any subsequent court action if there is any question of liability involved. Get the names and addresses of as many witnesses as possible. If they refuse to identify themselves, jot down identifying features or the license plate numbers of their automobiles. Do not discuss the accident with the witnesses. Do not give the witnesses names to anyone but the police, your attorney or your insurance company.

4. While waiting for ambulance, write down- Accident Information Date __ Time __ Location __ Weather __ area conditions __

5. Summary of accident __

6. Diagram of accident location

7. Seek medical care. If you have any reason to suspect you were injured in the accident, go to a hospital immediately or see a physician promptly. Youll want it on record that you sought treatment right away, not in a week or so.

8. Write down name of Security Personnel, Police Officers, Department and Badge Number, Ambulance crew, etc.

9. Do not assign or accept blame for the accident. - The scene of the accident is not the place to determine fault. Discuss the accident only with the ambulance and medical personnel, your attorney and with representatives of your insurance company. Give the other party only your name and address. - Be cooperative with the police.

10. Have immediate photos taken of accident site.

11. Call a personal injury attorney immediately, not a real estate attorney. Call Kenneth A. Vercammen- Trial Attorney Attorney At Law (732) 572-0500 When you need help the most, we will be ready to help you.

12. Never give a signed statement to the claims adjuster representing the property owners insurance company. The same goes for a phone recording. They may be used against you in court to deny your claim. Speak with your personal injury attorney first.

IF YOU HAVE BEEN INJURED IN A CONSTRUCTION SITE

It is important that you -- 1. DO NOT discuss your case with anyone except your doctors and attorney. 2. DO NOT make any statements or give out any information. 3. DO NOT sign any statements, reports, forms or papers of any kinds, . 4. DO NOT appear at police or other hearings without first consulting with your attorney. INFORM YOUR ATTORNEY PROMPTLY of any notice, request or summons to appear at any hearings. 5. Refer to your attorney anyone who asks you to sign anything or to make any statement or report or who seeks information concerning your case. 6. Direct your doctor and other treatment providers not to furnish or disclose any information concerning your case to any entity other than your insurance company without YOU AND YOUR ATTORNEYS WRITTEN PERMISSION. 7. You may have insurance coverages such as Workers Comp, Blue Cross, Blue Shield or Major Medical which require prompt attention. However, be sure to have your treatment providers send bills immediately to all of your insurance companies. 8. Notify your attorney promptly of any new developments. Small things may be important. Keep your attorney informed. 9. Maintain accurate records of all information and data pertaining to your case. 10. If you or any witnesses should move, be sure to notify your attorney of the new address.

Financial Recovery if injured due to negligence of someone other than the employer

1. Kenneth Vercammen, Esq. Helps Injured persons A person who is injured as a result of the negligence of another person is what we in the legal profession refer to as a personal injury claimant. In other words, they have been injured as a result of an accident, and now wish to prosecute a claim against a negligent property owner and its insurance company. As the attorney of record, we will be bringing this action for the injured person. Therefore, I request that all clients do as much as possible to cooperate and help in every way. The purpose of this article is to describe the procedure that we may follow and give you sufficient instructions to enable you to assist us in this undertaking. Needless to say, helping us is just another way of helping yourself. Details on workers compensation cases are at the end of this article.

1. Clients should provide my office with the following 1. Any bills 2. All Hospital or doctor records in your possession 3. Photos of scars, cuts, bruises 4. Photos of damage to your clothes and property 5. Photos of accident site 6. Major Med Card 7. Paystub if lost time from work

2. Attorney- Client Confidential Relationship First, I want to thank our clients for giving me the opportunity to assist them in their case. I am a legal professional and I have great pride and confidence in the legal services that I perform for clients during our relationship as attorney-client. If you have concerns about your case, please call my office. (732) 572-0500 We feel that this case is extremely important not only to you, but to this office as well. This is not simply a matter of obtaining just compensation for you, although that is very important; we take professional pride in guiding our clients carefully through difficult times to a satisfactory conclusion of their cases.

3. Diary We want you to keep a diary of your experiences since your accident. In addition to this daily record, we also ask you to start describing a single day in the course of your life. In other words, describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort you put into your employment, what activities you engage in after work, etc. In other words, we need you to describe the changes in your working life, your playing life, your life as a husband or wife or child or parent. In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook. Remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family, friends, and co-workers. Keep a diary of all matters concerning this accident-no matter how trivial you think it may be. You should include notes on the treatments you receive, therapy, casts, appliances, hospitalization, change of doctors, change of medication, symptoms, recurrence, setbacks, disabilities and inconveniences. If you have any doubt about the propriety of including some particular information, please call the office and let us assist you.

4. Record expenses You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail. Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times. From time to time, however, there will be expenses incurred that you must keep track of yourself. We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth. Keep your canceled checks and your list of expenses together, for we will need them at a later date. Your attorney will keep track of your legal expenses, which may include costs of filing, service of complaint, investigation, reports, depositions, witness fees, hospital/ medical records, etc.

5. Investigation and Filing of Civil Complaint Procedurally, the following events occur in most personal injury cases. First, your attorney must complete the investigation. This will involve the collection of information from your physician, your employer, and our investigator. We will need your doctors to provide us with copies of all bills, medical records and possibly a medical report. When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement. If the insurance company will not make an adequate offer, then a Complaint and Case Information Statement is prepared by your attorney. It is filed in the Superior Court, Law Division. Your attorney then will prepare a summons and have the defendants personally served with the Summons and Complaint. The defendant, through their insurance company, must file an Answer within 35 days. Kenneth Vercammen's office generally does not file a Complaint until the treating doctor signs an affidavit of merit setting forth why the injury is permanent and the diagnostic tests upon which the permanent injury is based. You will need to speak with your doctor to ask if you have a permanent injury.

6. Interrogatory Questions and Discovery The Answer is followed by a request for written interrogatories. These are questions that must be answered by each party. The Superior Court has set up certain Form A Interrogatory Questions which are contained in the Rules of Court. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question. The deposition is just as important as the trial itself. In the event you are deposed during the course of this action, you will receive detailed instructions as to the procedure and will be required to watch a videotape. After taking depositions, the case will be set down for an Arbitration. If the parties do not settle after the Arbitration, the case will be given a trial call date. Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice.

7. Doctor/ Treatment It will help your case to tell us and your doctors about any injury or medical problems before or after your accident. Good cases can be lost by the injured person concealing or forgetting an earlier or later injury or medical problem. Insurance companies keep a record of any and all claims against any insurance company. The insurance company is sure to find out if you have ever made a previous claim. Tell your doctors all of your complaints. The doctors records can only be as complete as what you have given. Keep track of all prescriptions and medicines taken and the bills. Also save all bottles or containers of medicine.

8. Bills Retain all bills which relate to your damages, including medical expenses, hospital expenses, drugs and medicines, therapy, appliances, and anything needed to assist in your recovery. If possible, pay these bills by check or money order, so that a complete record may be kept. If this is not possible, be certain to obtain a complete receipt with the bill heading on it, to indicate where the receipt came from and the party issuing it.

9. Evidence Be certain to keep anything that comes into your possession which might be used as evidence in your case, such as shoes, clothing, glasses, photographs, defective machinery, defective parts, foreign substances which may have been a factor in your accident, etc. Be sure to let the office know that you have these items in your possession.

10. Photographs Take photographs of all motor vehicles, accident site, etc., that may be connected--directly or indirectly--with your accident. Again, be sure to let the office know that you have such photographs.

11 Keep your attorney advised Keep this office advised at all times with respect to changes in address, important changes in medical treatment, termination of treatment, termination of employment, resumption of employment, or any other unusual change in your life.

12. Lost wages Keep a complete record of all lost wages. Obtain a statement from your company outlining the time you have lost, the rate of salary you are paid, the hours you work per week, your average weekly salary, and any losses suffered as a result of this accident. Where possible, also obtain other types of evidence such as ledger sheets, copies of time cards, canceled checks, check stubs, vouchers, pay slips, etc.

13. New information In the event that any new information concerning the evidence in this case comes to your attention, report this to the attorney immediately. This is particularly true in the case of witnesses who have heretofore been unavailable.

14 Do not discuss the case The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone.

Obviously, we cannot stress too strongly that you DO NOT discuss this matter with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.

15. Questioning If any person approaches you with respect to this accident without your attorneys permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorneys office.

16. Investigation by Defendant Insurance Company Permit us to reiterate at this time that the oppositions insurance company will in all probability have a team of lawyers and investigators working diligently to counter your claim. During the course of their investigation, it is quite possible that they may attempt to contact you through various (and sometimes, devious) methods. Please do not make their jobs any easier for them by answering their questions.

We cannot emphasize too strongly that you should refrain at all times from discussing this matter with anyone--and that includes your employer, your relatives, your neighbors, and even your friends. Of course, there are exceptions to this rule.

If there are friends or neighbors or relatives who know all of the facts and circumstances surrounding the accident and can be of assistance to you, then they should be referred to this office so that their natural sympathy can be channeled into an effective asset for you.

Insurance companies pay money to claimants when they are satisfied there are both liability and damages that support a recovery. They can be expected to thoroughly investigate the facts of the accident and any past injuries or claims. The insurance company will obtain copies of all of the claimants past medical records.

The value of a case depends on the Permanent Injury, medical treatment and doctors reports Undoubtedly, you have questions as to how much your case is worth. We are going to be frank: The fact of the matter is there can be no answer to this question until we have completed the investigation in your case. Once we complete our investigation, of course, we can make a determination as to the amount of the defendants liability, if any, and even at that we will only be at a starting point. After that, we must obtain all necessary information concerning your lost wages, your disability, your partial disability, your life changes, and your prognosis. You may rest assured of one thing, however, and that is the fact that your case will not be settled below its true value, that is the fair compensation for the injuries you have received. You may also rest assured that no settlement agreement will be entered into without your consent.

DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier) of land (or premises) to make the place reasonably safe for the proper use of an invitee requires the owner or occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions. Cases:

Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to employees of defendant fell down cellar stairway partially obscured by carton) NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner (or occupier) knew of the unsafe condition for a period of time prior to plaintiffs injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiffs injury that in the exercise of reasonable care the owner (or occupier) should have discovered its existence and corrected it. Cases:

Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960), affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipper waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).

Notes:

(1) The above charge is applicable to those cases where the defendant is not at fault for the creation of the hazard of where the hazard is not to be reasonably anticipated as an incident of defendants mode of operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).

(2) An employees knowledge of the danger is imputed to his/her employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963).

Workers compensation recovery if no negligence by others, but on the job injury Original draft by Julius J. Feinson, Esq. Modified by Kenneth Vercammen, Esq. If a worker is injured on the job, the worker has three basic rights: (1) the right to medical treatment; (2) the right to receive payment (temporary disability) for lost time; and (3) the right to receive payment for any after-effects of the injury if the after-effects are found to be permanent (partial permanent disability). If you are injured, you should immediately report the accident. Make sure an accident report is filled out and write down the names of all witnesses. When a worker is injured on the job, the employer or the employers insurance company are obligated to furnish and pay for medical treatment. However, in New Jersey, the employer has the right to select the doctors who will provide that treatment, since its the employer or its insurance company who is responsible for payment of medical expenses. It follows that if the worker does not go to the authorized treating doctor, then the employer will generally not be responsible for payment of the medical expenses. When an employee is hurt on the job, the employee is entitled to receive temporary disability benefits of 70% of wages up to an amount set by the State. For example, the maximum amount for an injury in 1997 was only $496 per week. These benefits are payable on a retroactive basis if the employee is out at least seven (7) days and the treating doctor certifies that the employee cannot work. In general, temporary disability benefits will continue to be paid so long as the workers treating doctor certifies that the employee cannot work. When medical treatment is completed and the employee is able to return to work, there may be a basis for payment to the employee of benefits for the after-effects of the injury. This is called partial permanent disability and is based on a schedule which utilizes a system of assigning value to each part of the body on a scale of 1% to 100%. Generally, the issue of partial permanent disability is resolved by filing a claim in the Division of Workers Compensation. A lawyer who represents a claimant before the Division of Workers Compensation may not charge any fee in advance. An Administrative Law Judge who hears the case will set the fee (never more than 20%) and if there is no recovery, an attorney will not be allowed a fee. Finally, disposition of a claim in the Division of Workers Compensation will not always operate to end a claim. There are rights and obligations on the part of both the employer and the employee. Since an employee is not obligated to pay a fee in a workers compensation case unless awarded by the Court, it would make sense for the employee to immediately consult an attorney to protect his/her rights. The employee should also be aware of the fact that there are time limits regarding the reporting of accidents. The safest approach is, of course, to report a work related accident immediately, even if it seems relatively minor at the time. Failure to report an accident can cause delays in receiving temporary disability and other benefits. When you meet with a workers compensation attorney, the following information will be requested from you: 1. Name, address and telephone number. 2. Name, address and telephone number of employer. 3. Name, address and telephone number of any union the client is a member of, along with full details of any union benefits that may have been received or to which the client has a right. (There may be a union benefit plan which provides the employee with payments for drugs and medical bills in addition to workers compensation benefits.) 4. The job title the client held when injured, along with the clients educational background and previous employment history. 5. The nature of the employers business. 6. Your Social Security number. 7. Your sex, age, and marital status at the time of the accident. 8. The name of the employers workers compensation insurance carrier or indication of whether the employer is self-insured. 9. The exact details of how you gave notice of the accident to the employer or whether the facts and circumstances are such that the employer must have had knowledge. 10. The exact place where the accident occurred and the date and time of the occurrence. 11. A full description in your own handwriting of how the accident occurred or to the exposures if an occupational disease case. 12. Your wages or earnings and whether on time or piece-work basis, the rate per hour, or the weekly wage. 13. The date when you stopped work and the date of return to work. 14. A statement of past and present complaints, as well as a description of all body parts affected by the accident. Explain any emotional complaints since the accident to investigate the question of neuro-psychiatric disability. 15. The compensation paid for temporary or permanent disability must be ascertained. 16. Full details as to medical aid required and whether it was requested from the employer. If the medical treatment was furnished by the employer, all dates of treatment should be inventoried. If the employer refused to furnish the treatment, indicate in detail all requests made to the employer for treatment, as well as obtaining the names and addresses of all doctors who furnished the treatment. 17. Be certain you have the names and addresses of all physicians and hospitals who rendered medical treatment since the accident, including but not limited to the injuries arising from the accident. Attempt to obtain the amount of all physicians bills and prepare a file for paid and unpaid bills. If you are receiving medical treatment from a doctor of your choice or if the employer has refused to render medical treatment, the attorney must give written notification to the employer and its insurance carrier of all the details concerning your injuries and accident and the name and address of the doctor by whom he is being treated or the name and address of the doctor who is going to be treating him. The attorney must clearly indicate in the letter that this is a formal request pursuant to Title 34 for the employer/respondent to furnish medical treatment by the doctor chosen by the petitioner or, alternatively, that the respondent should immediately provide the name and address of a doctor that it wants to treat the petitioner. In Workers Compensation, the respondent controls the choice of doctor. 18. Any Blue Cross, Blue Shield, or major medical plans which cover you, as well as identification numbers, since it may be possible to obtain payment for medical bills from these plans, if the employer/workers compensation refuses to make payment. See Workers Compensation (ICLE 1983). If you are injured while working, we recommend you immediately speak with an experienced attorney.

Conclusion We appreciate that this is a great deal of information to absorb. However, we are certain that our clients appreciate having this information from the outset. Each request and bit of information given here represents an important part in recovering full value for your injury. Therefore, we respectfully request your full cooperation. If you have questions or concerns regarding these instructions, we encourage you to feel free to contact the office at any time. Call Kenneth Vercammen to schedule an appointment 732-572-0500. 



Defenses to Possession of Hashish Charges - New Articles, ABA Newsletters and Community Events

Defenses to Possession of Hashish Charges

By Kenneth A. Vercammen, Past Chair NJ State Bar Municipal Court and DWI Section

   Our office represents people charged with criminal and disorderly persons offenses. We provide representation throughout New Jersey.  Criminal charges can cost you.  If convicted of possession of drugs, you can face jail, high fines, Probation over 18 months and other penalties.  Don't give up!  Our Law Office can provide experienced attorney representation for hashish and other criminal matters. Our website kennethvercammen.com provides information on criminal offenses we can be retained to represent people. The defense of a person charged with possession of hashish is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of involvement with hashish.  The Superior Court handles possession of larger amounts of hashish, possession with intent to distribute hashish or other drugs, and distribution of hashish.

    The Municipal Court has jurisdiction to hear the following drug related offenses: NJSA 2C:5 10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:35 10(b), using or being under the influence of CDS; NJSA 2C:35 10(c), failure to deliver cocaine, hashish or other CDS to police [County Prosecutors often downgrade possession of small amounts of cocaine to this offense;] NJSA 2C:36 2, possession of drug paraphernalia. All other drug offenses are heard in the Superior Court. At the initial interview the defense attorney must determine what happened, what was told to police and the possible defense witnesses to be interviewed. Defense counsel should completely understand the facts and circumstances of the stop and arrest. Defense counsel should explain to the client the possible penalties which can be imposed.

      If convicted, the court must impose a minimum $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. Moreover, the court must suspend the defendant's driver's license for between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed. Fines and jail vary depending on the amount of hashish and whether the case is heard in Superior Court or Municipal Court.  Jail time and fines is explained in greater details in other articles on kennethvercammen.com. The retainer fee must be discussed at the initial interview.   I require the full retainer to be paid prior to my entering an appearance. Depending on the case, County and prior offenses, fees range between $1,000-$7,000. My standard procedure, once we are retained, is to immediately send a discovery letter/letter of representation to both the Prosecutor and the Court Clerk. I try to stay in close contact with the client. I also can provide the client with a brochure setting forth phone numbers and addresses for substance abuse treatment programs with a recommendation they seek help for any problem. Proof of attendance of such a program is of benefit at sentencing or an application for PTI or conditional discharge. A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5 7. Do it immediately; do not wait to receive discovery.

Conditional Discharge or Pre-trial Intervention/ PTI for 1st time offenders If the Suppression Motion is unsuccessful or not a viable option, counsel should discuss the possibility of obtaining Pre-trial Intervention. For small amounts of marijuana and hashish, heard in Municipal Court, N.J.S.A. 2C:36A I provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under 24:21 27, 2C:43 12 or 2C:36A 1 may apply for a Conditional Discharge. The court upon notice to the prosecutor and subject to 2C:36A 1(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a Conditional Discharge is optional with the court, defense counsel should be prepared to prove through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program will not pose a danger to the community. Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on Conditional Discharges, see State v Sanders N.J. Super 515 (App. Div. 1979), State v Banks 157 N.J. Super. 442 (Law Div. 1978), State v Grochulski 133 NJ Super 586 (Law Div. 1975), State v Teitelbaum. 160 NJ Super 450 (Law Div. 1978), State v Bush L34 NJ Super 346 (Cty Ct 1975), State v DiLuzio 130 NJ Super 220 (Law Div. 1974). The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. The court further has the option to suspend a defendant's driver's license for between six months and two years. The Conditional Discharge period is also between one year and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory. Pre-trial Intervention may be available for first time offenders charged with possession with intent to distribute hashish charges heard in Superior Court. More details on PTI is available on website kennethvercammen.com.

TRIAL PREPARATION The prosecutor is responsible for providing full discovery. Rules 3:13 3, 7:7-7, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990).

THE TRIAL The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Plea bargaining is permitted in Superior Court indictable cases.  Defense counsel must subpoena its necessary witnesses and prepare for trial The State must prove knowledge or purpose on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Purpose means it was defendant's conscious object to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990). If actual possession cannot be demonstrated, defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. Mere presence in a premises with other persons where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975). In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS contained in envelopes secreted in a vinyl bag resting on the back seat next to another passenger in the car. In addition to establishing the item seized is CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutor's witness will call witnesses to prove the location of the seized hashish from the moment of initial seizure to the time of testing of the hashish. If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence. The following ideas are sometimes used by defense attorneys to provide defend the charge of possession of hashish.

1. No discovery Send a discovery letter/letter of representation to both the District Attorney/Municipal Prosecutor, Police Records Bureau of the law enforcement agency which issued the complaint and the  Court Clerk. Failure of the state to provide discovery may be grounds to dismiss the charges.

2. Suppression A timely Motion to Suppress Evidence must be made. Do it immediately; do not wait to receive discovery.

3. Subpoena witnesses defense Counsel should subpoena witnesses; sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one half inch long. Cross examination is pivotal in determining credibility. Failure to subpoena a witness may be malpractice if your necessary witness is not present.

4.  First Offender programs Many states provide that a person not previously convicted of a hashish offense and who has not previously been granted "supervisory treatment" may apply for a conditional discharge/dismissal of charges. The court, upon notice to the prosecutor, may suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).

5.  No lab tests  The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate. If the State intends to proffer the lab certificate at the trial, a notice of an intent to proffer that certificate, and all reports relating to the analysis of the CDS, should be served by the state on defense counsel. This includes an actual copy of the lab certificate.  Defense counsel must notify the prosecutor in writing of defendant's objection to the admission into evidence of the certificate, plus set forth the grounds for objection. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence. If the state  can't introduce lab results, the state can't use.    

6. Chain of Custody The State must then establish a chain of custody. The prosecutor's witness will call additional witnesses to prove the locations of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug. Defense counsel can contest the chain of custody.

7. Confession excluded If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request an Evidence Rule Hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated.

8. Constructive possession not proven The burden of primary possession/constructive possession remains on the State.  The State must prove  it was defendant's conscious intention to obtain or possess the item while being aware it was hashish. Defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint.  However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance.

Conclusion

       It is well established that the prosecution of a defendant for hashish is a  criminal proceeding.  In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Unfortunately, plea bargaining is not permitted in Municipal Court drug cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges.    Hashish  offenses carry substantial penalties which will effect your client for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances.   Drug law and other defenses are explained in greater details in other articles on kennethvercammen.com.

Defenses to Possession of Cannabis and Other Drug Charges - New articles, ABA newsletters and Community Events

Defenses to Possession of Cannabis and Other Drug Charges

By Kenneth A. Vercammen, Past Chair NJ State Bar Municipal Court and DWI Section

   Our office represents people charged with criminal and disorderly persons offenses. We provide representation throughout New Jersey.  Criminal charges can cost you.  If convicted of possession of drugs, you can face jail, high fines, Probation over 18 months and other penalties.  Dont give up!  Our Law Office can provide experienced attorney representation for marijuana, hashish  or other illegal cannabis derivatives and other criminal matters. Our website www.kennethvercammen.com provides information on criminal offenses we can be retained to represent people.         Hemp and Marijuana are both derived from the Cannabis plant. Hemp is cannabis grown for industrial use while marijuana is cannabis grown for recreational or medical use. Source: http://www.cannabis.com/ The defense of a person charged with possession of marijuana, hashish  or other illegal cannabis derivatives is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of involvement with marijuana, hashish  or other illegal cannabis derivatives.  The Superior Court handles possession of larger amounts of marijuana, hashish  or other illegal cannabis derivatives, possession with intent to distribute drugs    The Municipal Court has jurisdiction to hear the following drug related offenses:    NJSA 2C:5 10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:35 10(b), using or being under the influence of CDS; NJSA 2C:35 10(c), failure to deliver cocaine, hashish or other CDS to police [County Prosecutors often downgrade possession of small amounts of cocaine to this offense;] NJSA 2C:36 2, possession of drug paraphernalia. All other drug offenses are heard in the Superior Court.

2C:35-2.      "Hashish" means the resin extracted from any part of the plant Genus Cannabis L. and any compound, manufacture, salt, derivative, mixture, or preparation of such resin.    "Marijuana" means all parts of the plant Genus Cannabis L., whether growing or not; the seeds thereof, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant or its seeds, except those containing resin extracted from such plant; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

At the initial interview the defense attorney must determine what happened, what was told to police and the possible defense witnesses to be interviewed. Defense counsel should completely understand the facts and circumstances of the stop and arrest. Defense counsel should explain to the client the possible penalties which can be imposed.           If convicted, the court must impose a minimum $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. Moreover, the court must suspend the defendants drivers license for between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed. Fines and jail vary depending on the amount of marijuana, hashish  or other illegal cannabis derivatives and whether the case is heard in Superior Court or Municipal Court.  Jail time and fines is explained in greater details in other articles on www.kennethvercammen.com. The retainer fee must be discussed at the initial interview.  I require the full retainer to be paid prior to my entering an appearance. Depending on the case, County and prior offenses, fees range between $1,000-$7,000. My standard procedure, once we are retained, is to immediately send a discovery letter/letter of representation to both the Prosecutor and the Court Clerk. I try to stay in close contact with the client. I also can provide the client with a brochure setting forth phone numbers and addresses for substance abuse treatment programs with a recommendation they seek help for any problem. Proof of attendance of such a program is of benefit at sentencing or an application for PTI or conditional discharge. A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5 7. Do it immediately; do not wait to receive discovery.

Conditional Discharge or Pre-trial Intervention/ PTI for 1st time offenders If the Suppression Motion is unsuccessful or not a viable option, counsel should discuss the possibility of obtaining Pre-trial Intervention. For small amounts of marijuana and hashish, heard in Municipal Court, N.J.S.A. 2C: 36A I provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under 24:21 27, 2C:43 12 or 2C: 36A 1 may apply for a Conditional Discharge. The court upon notice to the prosecutor and subject to 2C: 36A 1(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a Conditional Discharge is optional with the court, defense counsel should be prepared to prove through letters, documents, or even witnesses, that the defendants continued presence in the community or in a civil treatment program will not pose a danger to the community. Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on Conditional Discharges, see State v Sanders N.J. Super 515 (App. Div. 1979), State v Banks 157 N.J. Super. 442 (Law Div. 1978), State v Grochulski 133 NJ Super 586 (Law Div. 1975), State v Teitelbaum. 160 NJ Super 450 (Law Div. 1978), State v Bush L34 NJ Super 346 (Cty Ct 1975), State v DiLuzio 130 NJ Super 220 (Law Div. 1974). The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. The court further has the option to suspend a defendants drivers license for between six months and two years. The Conditional Discharge period is also between one year and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory. Pre-trial Intervention may be available for first time offenders charged with possession with intent to distribute hashish charges heard in Superior Court. More details on PTI is available on website www.kennethvercammen.com.

TRIAL PREPARATION The prosecutor is responsible for providing full discovery. Rules 3:13 3, 7:7-7, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990).

THE TRIAL The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Plea bargaining is permitted in Superior Court indictable cases.  Defense counsel must subpoena its necessary witnesses and prepare for trial The State must prove knowledge or purpose on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Purpose means it was defendants conscious object to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990). If actual possession cannot be demonstrated, defendants constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. Mere presence in a premises with other persons where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975). In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS contained in envelopes secreted in a vinyl bag resting on the back seat next to another passenger in the car. In addition to establishing the item seized is CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutors witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of testing of the drugs. If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence. The following ideas are sometimes used by defense attorneys to provide defend the charge of possession of marijuana, hashish  or other illegal cannabis derivatives.

1. No discovery Send a discovery letter/letter of representation to both the District Attorney/Municipal Prosecutor, Police Records Bureau of the law enforcement agency which issued the complaint and the  Court Clerk. Failure of the state to provide discovery may be grounds to dismiss the charges.

2. Suppression A timely Motion to Suppress Evidence must be made. Do it immediately; do not wait to receive discovery.

3. Subpoena witnesses defense Counsel should subpoena witnesses; sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is pivotal in determining credibility. Failure to subpoena a witness may be malpractice if your necessary witness is not present.

4.  First Offender programs Many states provide that a person not previously convicted of a drug offense and who has not previously been granted "supervisory treatment" may apply for a conditional discharge/dismissal of charges. The court, upon notice to the prosecutor, may suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).

5.  No lab tests  The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate. If the State intends to proffer the lab certificate at the trial, a notice of an intent to proffer that certificate, and all reports relating to the analysis of the CDS, should be served by the state on defense counsel. This includes an actual copy of the lab certificate.  Defense counsel must notify the prosecutor in writing of defendants objection to the admission into evidence of the certificate, plus set forth the grounds for objection. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence. If the state  cant introduce lab results, the state cant use.

6. Chain of Custody The State must then establish a chain of custody. The prosecutors witness will call additional witnesses to prove the locations of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug. Defense counsel can contest the chain of custody.

7. Confession excluded If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request an Evidence Rule Hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. 8. Constructive possession not proven The burden of primary possession/constructive possession remains on the State.  The State must prove  it was defendants conscious intention to obtain or possess the item while being aware it was drugs. Defendants constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint.  However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance.

Conclusion

It is well established that the prosecution of a defendant for possession of marijuana, hashish  or other illegal cannabis derivatives is a  criminal proceeding.   In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Unfortunately, plea bargaining is not permitted in Municipal Court drug cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges.    Marijuana, hashish or other illegal cannabis derivatives offenses carry substantial penalties which will effect your client for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances.  Drug law and other defenses are explained in greater details in other articles on www.kennethvercammen.com.

Defense to Possession of Drugs/Controlled Dangerous Substances Charge - New articles, ABA newsletters and Community Events

Defense to Possession of Drugs/Controlled Dangerous Substances Charge

By Kenneth A. Vercammen

The defense of a person charged with possession of Controlled Dangerous Substances (CDS) is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of involvement with controlled dangerous substances . The Municipal Court has jurisdiction to hear the following drug related Controlled Dangerous Substances offenses: NJSA 2C:5 10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:35 10(b), using or being under the influence of CDS; NJSA 2C:35 10(c), failure to deliver cocaine or other CDS to police [County Prosecutors often downgrade possession of small amounts of cocaine to this offense] ; NJSA 2C:36 2, possession of drug paraphernalia At the initial interview the defense attorney must determine what happened, what was told to police and the possible defense witnesses to be interviewed. Defense counsel should completely understand the facts and circumstances of the stop and arrest. Defense counsel should explain to the client the possible penalties which can be imposed.

If convicted, the court must impose a minimum $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. Moreover, the court must suspend the defendant's driver's license for between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed. Fines and jail vary depending on the amount of drugs and whether the case is heard in Superior Court or Municipal Court. Jail time and fines is explained in greater details in other articles on kennethvercammen.com.

The retainer fee must be discussed at the initial interview. I require the full retainer to be paid prior to my entering an appearance. Depending on the case, County and prior offenses, fees range between $1,000- $7,000. My standard procedure, once we are retained, is to immediately send a discovery letter/letter of representation to both the Prosecutor and the Court Clerk. We try to stay in close contact with the client. I also can provide the client with a brochure setting forth phone numbers and addresses for substance abuse treatment programs with a recommendation they seek help for any problem. Proof of attendance of such a program is of benefit at sentencing or an application for PTI or conditional discharge. A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5 7. Do it immediately, do not wait to receive discovery.

Pre trial Intervention/ PTI If the Suppression Motion is unsuccessful or not a viable option, counsel should discuss the possibility of obtaining Pre trial Intervention. For marijuana and small amounts of cocaine, heard in Municipal Court, N.J.S.A. 2C: 36A 1 provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under 24:21 27, 2C:43 12 or 2C: 36A 1 may apply for a Conditional Discharge. The court upon notice to the prosecutor and subject to 2C: 36A l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a Conditional Discharge is optional with the court, defense counsel should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community. Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on Conditional Discharges, see State v Sanders N.J. Super 515 (App. Div. 1979), State v Banks 157 N.J. Super. 442 (Law Div. 1978), State v Grochulski 133 NJ Super 586 (Law Div. 1975), State v Teitelbaum. 160 NJ Super 450 (Law Div. 1978), State v Bush L34 NJ Super 346 (Cty Ct 1975), State v DiLuzio 130 NJ Super 220 (Law Div. 1974). The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. The court further has the option to suspend a defendant's driver's license for between six months and two years. The Conditional Discharge period is also between six months and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory. Pre trial Intervention may be available for first time offenders charged with possession with intent to distribute and other drug charges heard in Superior Court. More details on PTI is available on website kennethvercammen.com. TRIAL PREPARATION The prosecutor is responsible for providing full discovery. Rules 3:13 3, 7:7-7, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990). The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will seek to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35 19. If the State intends to proffer at trial the lab certificate, a notice of an intent to proffer that certificate and all reports relating to the analysis of the CDS, including a copy of the certificate, shall be served on defense counsel at least 20 days before the proceeding begins. Defense counsel must within 10 days of receipt, notify the prosecutor in writing of defendant's objection to the admission into evidence of the certificate, plus set forth the grounds for objection, 2C:35 l9(c). Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence.

THE TRIAL The burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court CDS cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Plea bargaining is permitted in Superior Court indictable cases. Defense counsel must subpoena its necessary witnesses and prepare for trial The State must prove knowledge or purpose on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Purpose means it was defendant's conscious object to obtain or possess the item while being aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990). If actual possession cannot be demonstrated, defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. Mere presence in a premises with other persons where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975). In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS contained in envelopes secreted in a vinyl bag resting on the back seat next to another passenger in the car

. In addition to establishing the item seized is CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutor's witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of testing of the illegal drug. If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence. The following ideas are sometimes used by defense attorneys to provide defend the charge of possession of cocaine.

1. No discovery Send a discovery letter/letter of representation to both the District Attorney/Municipal Prosecutor, Police Records Bureau of the law enforcement agency which issued the complaint and the Court Clerk. Failure of the state to provide discovery may be grounds to dismiss the charges.

2. Suppression A timely Motion to Suppress Evidence must be made. Do it immediately; do not wait to receive discovery.

3. Subpoena witnesses defense counsel should subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one half inch long. Cross examination is pivotal in determining credibility. Failure to subpoena a witness may be malpractice if your necessary witness is not present.

4. First Offender programs Many states provide that a person not previously convicted of a drug offense and who has not previously been granted "supervisory treatment" may apply for a conditional discharge/dismissal of charges. The court, upon notice to the prosecutor, may suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).

5. No lab tests The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate. If the State intends to proffer the lab certificate at the trial, a notice of an intent to proffer that certificate, and all reports relating to the analysis of the CDS, should be served by the state on defense counsel. This includes an actual copy of the lab certificate. Defense counsel must notify the prosecutor in writing of defendant's objection to the admission into evidence of the certificate, plus set forth the grounds for objection. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence. If the state can't introduce lab results, the state can't use.

6. Chain of Custody The State must then establish a chain of custody. The prosecutor's witness will call additional witnesses to prove the locations of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug. Defense counsel can contest the chain of custody.

7. Confession excluded If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request an Evidence rule hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. 8. Constructive possession not proven The burden of primary possession/constructive possession remains on the State.

The State must prove it was defendant's conscious intention to obtain or possess the item while being aware it was cocaine. Defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance.

CONCLUSION

Drug related offenses carry substantial penalties which will effect your client for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances. Drug law and other defenses are explained in greater details in other articles on kennethvercammen.com.



Defense to Criminal Charges - New articles, ABA newsletters and Community Events

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.


Thursday, April 28, 2011

Defending TCNJ Students for Criminal Arrest--New articles, ABA newsletters and Community Events

Defending TCNJ Students for Criminal Arrest

By Kenneth A. Vercammen, Past Chair NJ State Bar Municipal Court and DWI Section

Our office often represents college students charged with criminal and disorderly persons offenses. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted of possession of drugs or a crime, you can face jail, high fines, Probation over 18 months and other penalties. Dont give up! Our Law Office can provide experienced attorney representation for marijuana, underage drinking and other criminal matters. Our website kennethvercammen.com provides information on criminal offenses we can be retained to represent people.

Consequences of a Criminal Guilty Plea in Superior Court

1 If you plead guilty you will have a criminal record

2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.

3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment

3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.

4. On employment applications, you will have to answer yes that you were convicted of a crime.

5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

7 In all drug cases, the statute requires mandatory drivers license suspension. New Jersey does not have a special license to go to work or school.

8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

9. You must pay restitution if the court finds there is a victim who has suffered a loss.

10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

12. You must wait 5-10 years to expunge a first offense. 2C:52-3

13. You lose the presumption against incarceration in future cases. 2C:44-1

14. You may lose your right to vote.

The defense of a person charged with possession of marijuana or other criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of involvement with marijuana, hashish or other illegal cannabis derivatives. The Superior Court handles possession of larger amounts of marijuana, or other illegal drugs and possession with intent to distribute drugs

The Municipal Court has jurisdiction to hear the following drug-related offenses:

NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:35-10(b), using or being under the influence of CDS; NJSA 2C:35-10(c), failure to deliver cocaine, hashish or other CDS to police [County Prosecutors often downgrade possession of small amounts of cocaine to this offense;] NJSA 2C:36-2, possession of drug paraphernalia. All other drug offenses are heard in the Superior Court.

If convicted, the court must impose a minimum $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. Moreover, the court must suspend the defendants drivers license for between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed. Fines and jail vary depending on the amount of marijuana, hashish or other illegal drugs and whether the case is heard in Superior Court or Municipal Court. Jail time and fines is explained in greater details in other articles on kennethvercammen.com.

The retainer fee will be discussed at the initial interview. Defense attorneys require the full retainer to be paid prior to my entering an appearance. Depending on the case, County and prior offenses, fees range between $1,000-$7,000.

My standard procedure, once we are retained, is to immediately send a discovery letter/letter of representation to both the Prosecutor and the Court Clerk. I try to stay in close contact with the client. I also can provide the client with a brochure setting forth phone numbers and addresses for substance abuse treatment programs with a recommendation they seek help for any problem. Proof of attendance of such a program is of benefit at sentencing or an application for PTI or conditional discharge.

A timely Motion to Suppress Evidence can be made pursuant to Rule 3:5-7. Do it immediately; do not wait to receive discovery.

Conditional Discharge or Pre-trial Intervention/ PTI for 1st time offenders

If the Suppression Motion is unsuccessful or not a viable option, counsel should discuss the possibility of filing an application for Pre-trial Intervention.

For small amounts of marijuana and paraphernalia, heard in Municipal Court, N.J.S.A. 2C: 36A-I provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted supervisory treatment under 24:21-27, 2C:43-12 or 2C: 36A-1 may apply for a Conditional Discharge. The court upon notice to the prosecutor and subject to 2C: 36A-1(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a Conditional Discharge is optional with the court, defense counsel should be prepared to prove through letters, documents, or even witnesses, that the defendants continued presence in the community or in a civil treatment program will not pose a danger to the community. Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on Conditional Discharges, see State v Sanders N.J. Super 515 (App. Div. 1979), State v Banks 157 N.J. Super. 442 (Law Div. 1978), State v Grochulski 133 NJ Super 586 (Law Div. 1975), State v Teitelbaum. 160 NJ Super 450 (Law Div. 1978), State v Bush L34 NJ Super 346 (Cty Ct 1975), State v DiLuzio 130 NJ Super 220 (Law Div. 1974). The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. The court further has the option to suspend a defendants drivers license for between six months and two years.

The Conditional Discharge period is also between one year and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.

Pre-trial Intervention may be available for first time offenders charged with certain non- violent offenses heard in Superior Court. More details on PTI is available on website kennethvercammen.com.

TRIAL PREPARATION

The prosecutor is responsible for providing full discovery. Rules 3:13-3, 7:7-7, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law Div. 1989); State v Ford, 240 N.J. Super. 44 (App. Div. 1990).

THE TRIAL

In drug cases, the burden of primary possession/constructive possession remains on the State. Plea bargaining is not permitted in Municipal Court drug cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Plea bargaining is permitted in Superior Court indictable cases.

Defense counsel can subpoena its necessary witnesses and prepare for trial The State must prove knowledge or purpose on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Knowledge of the character of the substance may be inferred from the circumstances. 33 N.J. Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed 1990).

If actual possession cannot be demonstrated, defendants constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint.

Mere presence in a premises with other persons where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521,S24 (App. Div. 1975).

In State v. Shipp, 216 N.J. Super. 662,666 (App. Div. 1987), it was held there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS contained in envelopes secreted in a vinyl bag resting on the back seat next to another passenger in the car.

In addition to establishing the item seized is CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutors witness will call witnesses to prove the location of the seized drugs from the moment of initial seizure to the time of testing of the drugs. If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence rule 8 hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. If the defendant elects to take the stand, defense counsel must be certain that he testifies with complete candor and does not try to embellish his protestations of innocence.

The following ideas are sometimes used by defense attorneys to provide defend criminal charges.

1. No discovery Send a discovery letter/letter of representation to both the District Attorney/Municipal Prosecutor, Police Records Bureau of the law enforcement agency which issued the complaint and the Court Clerk. Failure of the state to provide discovery may be grounds to dismiss the charges.

2. Suppression A timely Motion to Suppress Evidence must be made.

3. Subpoena witnesses defense Counsel should subpoena witnesses; sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one-half inch long. Cross-examination is pivotal in determining credibility. Failure to subpoena a witness may be malpractice if your necessary witness is not present.

4 No lab tests The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate. If the State intends to proffer the lab certificate at the trial, a notice of an intent to proffer that certificate, and all reports relating to the analysis of the CDS, should be served by the state on defense counsel. This includes an actual copy of the lab certificate. Defense counsel must notify the prosecutor in writing of defendants objection to the admission into evidence of the certificate, plus set forth the grounds for objection. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence. If the state cant introduce lab results, the state cant use.

5. Chain of Custody The State must then establish a chain of custody. The prosecutors witness will call additional witnesses to prove the locations of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug. Defense counsel can contest the chain of custody.

6. Confession excluded If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request an Evidence Rule Hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated.

7. Constructive possession not proven The burden of primary possession/constructive possession remains on the State. The State must prove it was defendants conscious intention to obtain or possess the item while being aware it was drugs. Defendants constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance.

Conclusion

It is well established that the prosecution of a defendant for possession of marijuana, hashish or other illegal cannabis derivatives is a criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Unfortunately, plea bargaining is not permitted in Municipal Court drug cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges.

Marijuana, or other drug offenses carry substantial penalties which will effect your client for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on controlled dangerous substances. Drug law and other defenses are explained in greater details in other articles on kennethvercammen.com.