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

Wednesday, April 10, 2013

No Plea Bargain in DWI in Municipal Court in NJ


APPENDIX TO PART VII
GUIDELINES FOR OPERATION OF PLEA AGREEMENTS IN THE MUNICIPAL COURTS OF NEW JERSEY
GUIDELINE 1. PURPOSE
The purpose of these Guidelines is to allow for flexibility in the definitions and exclusions relating to the plea agreement process as that process evolves and certain offenses come to demand lesser or greater scrutiny.
GUIDELINE 2. DEFINITIONS
For the purpose of these Guidelines, a plea agreement occurs in a Municipal Court matter whenever the prosecutor and the defense agree as to the offense or offenses to which a defendant will plead guilty on condition that any or all of the following occur:
(a) the prosecutor will recommend to the court that another offense or offenses be dismissed,
(b) the prosecutor will recommend to the court that it accept a plea to a lesser or other offense (whether included or not) than that originally charged,
(c) the prosecutor will recommend a sentence(s), not to exceed the maximum permitted, to the court or remain silent at sentencing.
GUIDELINE 3. PROSECUTOR’S RESPONSIBILITIES
Nothing in these Guidelines should be construed to affect in any way the prosecutor's discretion in any case to move unilaterally for an amendment to the original charge or a dismissal of the charges pending against a defendant if the prosecutor determines and personally represents on the record the reasons in support of the motion. The prosecutor shall also appear in person to set forth any proposed plea agreement on the record. However, with the approval of the municipal court judge, in lieu of appearing on the record, the prosecutor may submit to the court a Request to Approve Plea Agreement, on a form approved by the Administrative Director of the Courts, signed by the prosecutor and by the defendant. Nothing in this Guideline shall be construed to limit the court's ability to order the prosecutor to appear at any time during the proceedings.
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GUIDELINE 4. LIMITATION.
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No plea agreements whatsoever will be allowed in drunken driving or certain drug offenses. Those offenses are:
A. Driving while under the influence of liquor or drugs (N.J.S.A. 39:4-50) and
B. Possession of marijuana or hashish (N.J.S.A. 2C:35-10a(4)), being under the influence of a controlled dangerous substance or its analog (N.J.S.A. 2C:35-10b), and use, possession or intent to use or possess drug paraphernalia, etc. (N.J.S.A. 2C:36-2).
No plea agreements will be allowed in which a defendant charged for a violation of N.J.S.A. 39:4-50 with a blood alcohol concentration of 0.10% or higher seeks to plead guilty and be sentenced under section a(1)(i) of that statute (blood alcohol concentration of .08% or higher, but less than 0.10%).
If a defendant is charged with a second or subsequent offense of driving while under the influence of liquor or drugs (N.J.S.A. 39:4-50) and refusal to provide a breath sample (N.J.S.A. 39:4-50.2) arising out of the same factual transaction, and the defendant pleads guilty to the N.J.S.A. 39:4-50 offense, the judge, on recommendation of the prosecutor, may dismiss the refusal charge. A refusal charge in connection with a first offense N.J.S.A. 39:4-50 charge shall not be dismissed by a plea agreement, although a plea to a concurrent sentence for such charges is permissible.
Except in cases involving an accident or those that occur when school properties are being utilized, if a defendant is charged with driving while under the influence of liquor or drugs (N.J.S.A. 39:4-50(a)) and a school zone or school crossing violation under N.J.S.A. 39:4-50(g), arising out of the same factual transaction, and the defendant pleads guilty to the N.J.S.A. 39:4-50(a) offense, the judge, on the recommendation of the prosecutor, may dismiss the N.J.S.A. 39:4-50(g) charge.
If a defendant is charged with more than one violation under Chapter 35 or 36 of the Code of Criminal Justice arising from the same factual transaction and pleads guilty to one charge or seeks a conditional discharge under N.J.S.A. 2C:36A-1, all remaining Chapter 35 or 36 charges arising from the same factual transaction may be dismissed by the judge on the recommendation of the prosecutor.
Nothing contained in these limitations shall prohibit the judge from considering a plea agreement as to the collateral charges arising out of the same factual transaction connected with any of the above enumerated offenses in Sections A and B of this Guideline.
The judge may, for certain other offenses subject to minimum mandatory penalties, refuse to accept a plea agreement unless the prosecuting attorney represents that the possibility of conviction is so remote that the interests of justice requires the acceptance of a plea to a lesser offense.
SUPREME COURT COMMENT (JUNE 29, 1990)
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Over the years, various unique practices and procedures have evolved in connection with the disposition of Municipal Court cases. Thus, it is the intent of these Guidelines to define regulated plea agreements as including every common practice that has evolved as a subterfuge for plea agreements. Therefore, for the purpose of these Guidelines, a plea agreement shall include all of those traditional practices, utilized by prosecutors and defense counsel, including "merger", "dismissal", "downgrade" or "amendment." Generally, "mergers" involve the dismissal of lesser-included or related offenses when a defendant pleads to the most serious offense. "Dismissals" involve motions to dismiss a pending charge or plea agreement when the municipal prosecutor determines, for cause (usually for insufficient evidence), that the charge should be dismissed. "Downgrades" or "amendments" involve the taking of a plea to a lesser or included offense to that originally charged.
Plea agreements are to be distinguished from the discretion of a prosecutor to charge or unilaterally move to dismiss, amend or otherwise dispose of a matter. It is recognized that it is not the municipal prosecutor's function merely to seek convictions in all cases. The prosecutor is not an ordinary advocate. Rather, the prosecutor has an obligation to defendants, the State and the public to see that justice is done and truth is revealed in each individual case. The goal should be to achieve individual justice in individual cases.
In discharging the diverse responsibilities of that office, a prosecutor must have some latitude to exercise the prosecutorial discretion demanded of that position. It is well established, for example, that a prosecutor should not prosecute when the evidence does not support the State's charges. Further, the prosecutor should have the ability to amend the charges to conform to the proofs.
Note: Guidelines and Comment adopted June 29, 1990, simultaneously with former Rule 7:4-8 ("Plea Agreements") to be effective immediately; as part of 1997 recodification of Part VII rules, re-adopted without change as Appendix to Part VII and referenced by Rule 7:6-2 ("Pleas, Plea Agreements"), October 6, 1997 to be effective February 1, 1998; Guideline 4 amended July 5, 2000 to be effective September 5, 2000; Guidelines 3 and 4 amended July 28, 2004 to be effective September 1, 2004; Guideline 4 amended June 7, 2005 to be effective July 1, 2005; Guideline 4 amended June 15, 2007 to be effective September 1, 2007; Guideline 3 amended July 16, 2009 to be effective September 1, 2009. 

2C:40-26 Operating motor vehicle during period of license suspension for dwi/dui,

2C:40-26  Operating motor vehicle during period of license suspension for dwi/dui, fourth degree crime.

1. a. It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of R.S.39:3-40, if the actor's license was suspended or revoked for a first violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and the actor had previously been convicted of violating R.S.39:3-40 while under suspension for that first offense.  A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.

b.It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of R.S.39:3-40, if the actor's license was suspended or revoked for a second or subsequent violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a).  A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.

c.Notwithstanding the term of imprisonment provided under N.J.S.2C:43-6 and the provisions of subsection e. of N.J.S.2C:44-1, if a person is convicted of a crime under this section the sentence imposed shall include a fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole.

Tuesday, April 9, 2013

Kenneth Vercammen for NJSBA 2nd Vice-President.


Ken is an Edison, Middlesex County, NJ trial attorney where he  handles Criminal, Municipal Court, Probate, Civil Litigation and Estate matters. Ken is author of the American Bar Association's new book “Criminal Law Forms” and often lectures to trial lawyers of the NJICLE- NJ State Bar Association, the ABA and Middlesex County Bar Association.  He is Past Chair of the Municipal Court Section and he has served on its board for 12 years. Hundreds of NJ Attorneys have signed his petition for the open position of 2nd Vice President of the NJSBA.
He was awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association He also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.
His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine.  He will be a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.
         For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.
His private practice has devoted a substantial portion of  professional time to the preparation and trial of litigated matters. He appears in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings.  Ken also serves as the Editor of the popular legal website and mobile phone app www.njlaws.com and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.
         Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is co-Chair of the ABA Criminal Law Committee Solo Division and will be a speaker at the ABA Annual Meeting. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4th degree black belt. He welcomes support from all attorneys in NJ    Resume online at http://www.njlaws.com/resume1.htm.

KENNETH VERCAMMEN
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
                                                732-572-0500                  www.njlaws.com
ADMISSIONS: Admitted in NJ, US Supreme Court and Federal District Court. Passed bar NY, PA, DC

MANAGING ATTORNEY  Kenneth Vercammen & Associates, PC  March 1990-Present
Full service Law practice with offices in Edison and Cranbury.
                                                                                                                       
PROSECUTOR   Township of Cranbury, Middlesex County, NJ   1991-1999
Municipal Prosecutor for criminal and traffic cases involving Township and State Police
-Acting Assoc. Prosecutor:  Carteret Municipal Court, Middlesex County  2000
Past President- Middlesex Municipal Prosecutor's Association
Metuchen Public Defender 2001- present           

EDITOR- NJ MUNICIPAL COURT LAW REVIEW  1993- present

Middlesex County Bar Association 2008 Municipal Court Attorney of the Year
NJ State Bar Association- 2005-2006 Municipal Court Attorney of the Year Award

RELEVANT LITIGATION SPEAKING ENGAGEMENTS:
-Handling Drug, DWI and Serious Municipal Court Cases ICLE/NJSBA- 2013, 2012, 2011, 2010 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002,2001,2000,1998,1997, 95,94
-Criminal, DWI and Drug Cases- NJ State Bar Annual Meeting 2012, 2011, 2010, 2009, 2008, 2007,  2006, 2005, 2004, 2003, 2002, 01, 00, 99
ABA Defending Internet Crime 2009 Chicago
-Recent Criminal Cases Middlesex Bar 2012, 2010;
Sayreville Police Recent Criminal cases 2013, Edison Police- Recent Criminal cases 2009; Edison Police Auxiliary- Search and Seizure law;
-Personal Injury Litigation- NJ ICLE/ NJ State Bar  2001, 2000, 1999, 1998, 1997, 1996, 1995, 1994, 1993,  1991;     Civil Trial Practice- Middlesex Bar 2004


RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE
-Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar   2013      
-Elder Law and Estate Planning-  American Bar Association ABA  Chicago2012,  Toronto 2011, Chicago 2009, New York City 2008, Miami 2007
Middlesex County Police Chiefs 2009- Living Wills,
Middlesex County College- Wills & Probate 2007
PUBLICATIONS: Published 150 separate Law Review and Legal Periodical articles journals.