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

Thursday, September 25, 2014

Traffic and Criminal Cases


Traffic & Criminal Cases
1. Auto Exception to Search Applicable only if Exigent Circumstances State v. Santiago ___ NJ Super. ___ (App. Div. 1999). A-896-97T2 decided March 30, 1999. The "automobile exception" justifies a police search of an automobile without a warrant only if there are exigent circumstances that render it "impracticable" to first obtain a warrant. When police have possession of a parcel and have it turned over to defendant by a "controlled delivery," police cannot later search defendant's automobile and the parcel without a warrant, since it was not impracticable to have first obtained a search warrant, and whatever "exigency" may have existed was created by the police themselves.

2. Police cannot Search for Driver Identification in Minor Motor Vehicle Stop State v. Lark ___ NJ Super. ___ (App. Div. 1999). A-3388-97T4 decided March 30, 1999. Under the federal and state constitutions, following a motor vehicle stop for a minor traffic violation, a police officer may not enter the vehicle to search for proof of the driver's identity even though the driver has failed to produce his driver's license and may have lied about his identity. The officers lacked probable cause to believe a crime had been committed. The dictum in State v. Boykins, 50 N.J. 73 (1967), does not authorize the search.

3. Spouse has no Financial Responsibility for other Spouse's Surcharges Clark v. Clark 324 NJ Super. 587 (Ch. Div. 1999). Motor vehicle insurance surcharges authorized by N.J.S.A. 17:29A-35b(2) and assessed against a spouse before the filing of a divorce complaint were non-marital debts for which the non-assessed spouse bore no financial liability. [Source NJ Lawyer Sept. 20, 1999]

4. Police Questioning at Hospital not Custodial Interrogation State v. Choinacki 324 NJ Super. 19 (App. Div. 1999). Where defendant was not physically detained at the hospital or subjected to continuous police supervision for a substantial period of time prior to giving her statements, the questioning of defendant both in the emergency room and the intensive care unit did not constitute custodial interrogation, and her statements were properly admitted despite the absence of Miranda warnings. [Source NJ Law Journal July 17, 1999]

5. Drug Bags from motel brought to Police Station Suppressed State v. Padilla 321 NJ Super. 96 (App. Div. 1999). Where bags containing the defendants' personal property were brought to police headquarters from the defendants' motel room after the defendants were arrested, the police had to give each defendant the opportunity to consent to a police inventory search or to make an alternative disposition of the property. [Source NJ Lawyer May 17, 1999]

6. No Brady Violation where Prosecutor Failure to Supply Facts where Evidence Supports Conviction Anyway Strickler v. Greene ___ US ___ (1999). No. 98-5864 decided June 17, 1999. There was no Brady violation in the prosecutor's failure to disclose materials in police files that cast serious doubt on significant portions of an eyewitness' testimony, where evidence of records strongly supports conclusion that petitioner would have been convicted of capital murder and sentenced to death even if that witness had been severely impeached or her testimony excluded entirely. [Source NJ Law Journal June 28, 1999]

7. Marijuana observed by police in house for sale admissible State v. Ferrari 323 NJ Super. 54 (App. Div. 1999). The Law Division erred by suppressing marijuana initially observed in the defendant's condominium by police officers posing as potential purchasers of the condominium; the officers did not violate the defendant's reasonable expectation of privacy. [Source NJ Lawyer July 19, 1999]

8. Request for Credentials is a Stop State v. Egan ___ NJ Super. ___ (Law Div. 1999). Appeal No. 0107-98 decided July 2, 1999. Unsupported by probable cause or reasonable suspicion, a police officer's request of credentials from the driver of a parked vehicle constituted a "stop"; was more than minimally necessary to dispel the officer's naked suspicion; and not justifiable as a "field inquiry."  The fruits of the stop are, therefore, suppressed.

9. Resident Only Parking Ordinance not Invalid State v. Marain 322 NJ Super. 444 (App. Div. 1999). A resident-only parking ordinance is not invalid as a violation of the provision of N.J.S.A. 39:3-42, which confers exclusive authority on the State to license or permit use or operation of motor vehicles.

10. Gang Ordinance Unconstitutional City of Chicago v. Morales ___ US ___ (1999). No. 97-1235 decided June 10, 1999. Where police can order a group of people to disperse if they suspect one of them is a gang member, this city ordinance violates the U.S. Constitution. [Source Lawyers Weekly USA No. 9915901]

11. Warrantless Search Conducted 13 Hours after tip does not Violate Fourth Amendment Maryland v. Dyson ___ US ___ (1999). No. 98-1062 decided June 21, 1999. Where police conducted a warrantless search of a car 13 hours after receiving a tip that it would be used to transport cocaine that evening, this didn't violate the Fourth Amendment. [Source Lawyers Weekly USA No. 9915949]

12. Use of Co-Defendants' Confession without Testimony is Violation of Sixth Amendment Lilly v. Virginia ___ US ___ (1999). No. 98-5881 decided June 10, 1999. Where an accomplice's confession was used as evidence against a defendant even though the accomplice refused to testify, this violated the defendant's Sixth Amendment right to confront witnesses. [Source Lawyers Weekly USA No. 9915903]

13. No Additional Suspension Where Substantial Hardship DMV v. Henry 01-MVH-0402 (OAL). Under the circumstances where respondent's motor vehicle record has been free of significant violations for a substantial period of time, where suspension of his privileges will work some hardship, and where  there is evidence that he, at least of late, recognizes that driving privileges come with concomitant obligations, the ALJ orders that, in lieu of the Division's proposed maximum 180-day suspension of a respondent's driving privileges for operating a motor vehicle while his license was already suspended in violation of N.J.S.A. 39:3-40, he be issued a warning instead. [Initial decision dated March 16, 1999.]  [Source NJ Law Journal June 28, 1999]