What is the L-9 Tax Form?

 What is the L-9 Tax Form? 

 It is the Affidavit for Real Property Tax Waiver: Resident Decedent in NJ where all beneficiaries of this estate are Class A beneficiaries

This form is prepared by the Estate Attorney and signed by 

·       · The executor; 

·       · Administrator; or 

·       · Joint tenant of the property for which a waiver is requested. 

ELIGIBILITY
All beneficiaries of this estate/ or receiving the house must be one of the following Class A beneficiaries: 

o   · Spouse or civil union partner; 

o   · Child (includes legally adopted child), grandchild, great-grandchild, etc.; 

o   · Parent or grandparent; 

o   · Step-child (but not step-grandchildren); 

o   · Domestic partner (on or after 7/10/04). 

You may not use Form L-9 if any of the following conditions exist: 

·       · The real estate was held as “tenants by the entirety” (jointly by spouse/civil union partner) and the 

spouse/civil union partner is surviving. 

Note: No waiver is needed for this property, and none will be issued; 

·       · Any asset of the decedent valued at $500 or more passes to any beneficiary other than the Class A 

beneficiaries listed above; 

·       · The relationship of a mutually acknowledged child is claimed to exist; 

·       · When there is any New Jersey Inheritance Tax or Estate Tax due. 

Note: If a trust agreement either exists or is created by the will, the Division may require a full return should the terms of the trust indicate a possible Inheritance Tax. A waiver would not then be issued from this form. 

REQUIRED DOCUMENTS we send to  Division of Taxation: 

o   · Copy of the decedent’s will, codicils and related writings, and any trust agreements; 

o   · Copy of the Deed for the property listed on the form; 

o   · Copy of Executor’s or Administrator’s certificate (letters of testamentary or of administration); 

o   · Copy of the decedent’s death certificate. 

·       We Mail this completed form to: NJ Division of Taxation 

 

Drug and DWI Defense - Forms and Pleadings (2021)

Drug and DWI Defense - Forms and Pleadings (2021) New Jersey Specific Bound book and CD with Forms, helpful links and searchable PDF List Price: $59.00 USD NJ State Bar’s new book Written by: Kenneth A. Vercammen This informative handbook will provide you with guidance on how to handle everything pertaining to the drug and DWI defense - from the initial contact with the client, to walking into the courthouse, and managing the steps that follow. It is a “how to” manual that you and your staff can follow with checklists and forms. This book is intended to help solo/small-firm attorneys and newly admitted attorneys prepare to handle these cases and to better represent their clients. This handbook will help attorneys represent persons charged with DWI, drug, and other criminal and traffic offenses. Special Feature: Over 50 modifiable forms and motions Over 50 forms and motions are included to help make you (and your staff) more efficient and productive, while also reducing the chance for mistakes. Bonus! Also includes a section on marketing the DWI and drug defense practice. Table of Contents: 1 Pre-Interview 2 Office Interview and Preparing Notices to the Court and Prosecutor 3 Pretrial Motions 4 Trial Preparation 5 Trial 6 Sentencing and Post Trial 7 Supreme Court Caselaw and Federal Statutes 8 Marketing the DWI and Drug Defense Practice Book # 1177719 New Jersey Institute for Continuing Legal Education A Division of the NJSBA One Constitution Square, New Brunswick, NJ 08901 (732) 214-8500 · CustomerService@njsba.com Link to purchase the book on website: https://tcms.njsba.com/personifyebusiness/njicle/Store/ProductDetails.aspx?productid=46708744

Drug Recognition Expert Defense

Contact the Law Office of KENNETH A VERCAMMEN for Legal Representation Kenneth Vercammen's Law office represents individuals charged with drug offenses throughout New Jersey. A Drug Recognition Expert (DRE) is a police officer who indicates they  can recognize whether someone is on drugs, what kind of drugs they are  on, and whether their ability to drive has been impaired. The theory of  the DRE is that they claim to be able to determine whether someone is  under the influence of drugs through a visual evaluation. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated  September 20, 1999, p. 19.  DREs frequently administer their tests when someone is arrested for  drunk driving, but passes a breath test. The DRE's testimony may  provide better evidence for the prosecution than toxicology reports.  Blood tests may not measure the quantity of drugs taken and, even if  they do, may not show a level high enough to prove impairment. Urine  tests do not accurately pinpoint when the drugs were ingested and may  not show the quantity. Therefore blood and urine tests alone may not be  sufficient to prove the person was affected by drugs when they were  driving. The DRE argues they can provide the link between the  toxicology report and the Driving Under the Influence charge. The DRE  offers testimony that the defendant failed the physical tests  administered by the DRE, showing that the defendant may be impaired by  the drugs in his system. Lawyers Weekly USA , "Growing New Practice  Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.  The DRE advises that their examination of the suspect is broken into 5  parts:   1. Coordination tests.  The suspect must perform the "walk and turn," "one leg stand," "finger  to nose," and "Romberg balance" test (where he must estimate when 30  seconds have passed while standing with his head tilted back and his  eyes closed).  2. Eye tests.  The DRE checks the suspect's pupil size under various lighting  conditions. He checks for "horizontal gaze nystagmus" where the eyes  twitch when looking off to the side and "vertical nystagmus" where the  eyes twitch when looking up. The DRE also checks to see if the eyes  cross normally when looking down at the nose.  3. Vital signs.  The DRE measures the suspect's pulse, temperature and blood pressure.  4. Muscle tone.  The DRE feels the suspects arm muscles to see if the are loose and  rubbery or tense.  5. Visual inspection.  The DRE inspects the suspects mouth and nose for signs of drug  ingestion, the presence of drug debris and discoloration. The DRE   checks the suspect's arms for needle marks. Lawyers Weekly USA ,   "Growing New Practice Area for Drunk Driving Lawyers" dated September   20, 1999, p. 20.  The DRE determines whether the results of the exam performed on the  suspect match symptoms associated with 7 drug classes. The drug classes  used are central nervous system (CNS) depressants, CNS stimulants,  hallucinogens, phencyclidine, narcotic analgesics, inhalants, and  cannabis. Journal of Analytical Toxicology, "Laboratory Validation Study  of Drug Evaluation and Classification Program: Ethanol, Cocaine, and  Marijuana", Vol. 20, October 1996, p. 468. For example, a person on a  depressant should have normal pupils, but twitching eyes on the   nystagmus tests, a slow pulse rate, low blood pressure, drowsiness, and   slurred speech. Persons on cannabis should have dilated pupils, no eye   twitching, a high pulse rate and blood pressure, their eyes may not  cross normally when they look down their nose, and they may have  disorientation. The DRE also interviews the arresting officer, reviews  the breathalyzer results and asks the suspect if he has been using  drugs. Finally, the DRE concludes whether the suspect is behaviorally  impaired, if the impairment is drug-related, and the drug class or   combination of classes likely to be causing the impairment. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated   September 20, 1999, p. 20.  Drug Recognition Experts are Not Recognized by New Jersey Courts  There is no decision from the New Jersey Supreme Court recognizing the  reliability of DRE testimony as proof of driving under the influence.  The written opinions which permit the admission of DRE testimony either  say the evidence is "non-scientific" or do not address this issue.  However, the recent U.S. Supreme Court case, Kumho Tire Co. v.  Carmichael, 119 S.Ct. 1167 (1999), extends the Daubert screening test    for expert testimony to "non-scientific" testimony. Therefore, if the N.J. Supreme Court adopts Kumho, the DRE's testimony would not qualify  as reliable evidence using the Daubert test. See Lawyers Weekly USA ,  "Growing New Practice Area for Drunk Driving Lawyers" dated September  20, 1999, p. 20.  Generally, the party offering results of a scientific test as evidence  is required to show that the scientific technique has gained general  acceptance within the scientific community. Romano v. Kimmelman, 96  N.J. 66 (1984); State v. Kelly, 97 N.J. 178 (1984); State v. Spann, 130  N.J. 484 (1993).  There are three ways to show general acceptance within  the scientific community of a particular procedure. (1) Testimony of  knowledgeable experts. (2) Authoritative scientific literature. (3)    Persuasive judicial decision.  Windmere, Inc. v. International Ins. Co.,   105 N.J. 373 (1987).  A proponent of scientific evidence must show that   the procedure or experiments are generally accepted in their field.    Frye v. United States, 293 F. 1013 (D.C. Cir., 1923).  In pre-trial motions and at trial, defense lawyers can challenge the   accuracy of the evaluation and the DRE's qualifications to perform the  tests. Lawyers Weekly USA , "Growing New Practice Area for Drunk  Driving Lawyers" dated September 20, 1999, p. 21.  Laboratory studies were done in 1996 and 1998. The 1996 studies were  undertaken to determine the validity of the variables of the Drug   Evaluation and Classification (DEC) evaluation in predicting whether  research volunteers had been administered ethanol, cocaine or marijuana  and to determine the accuracy of DREs in detecting whether subjects had  been dosed with ethanol, cocaine, or marijuana. Using discriminant  function analysis, it was found that 17-28 variables of the DEC  evaluation predicted the presence or absence of each of the three drugs  (ethanol, cocaine and marijuana) with a high degree of sensitivity and  specificity and low rates of false-positive and false-negative errors.  The five best predictive variables were nearly as accurate as the entire  subsets of 17-28 variables. When DREs concluded subjects were impaired  by ethanol or drugs or both, their predictions were consistent with  toxicological analysis in 51% of cases. When ethanol-only decisions,  which were guaranteed to be consistent with toxicology, were excluded,  DREs' predictions were consistent in 44% of cases. Journal of Analytical  Toxicology, "Laboratory Validation Study of Drug Evaluation and   Classification Program: Ethanol, Cocaine, and Marijuana", Vol. 20,   October 1996, p. 475. This study provides a list of the symptoms that  were found to be the best predictors of impairment by a particular class  of drug. Journal of Analytical Toxicology, "Laboratory Validation Study  of Drug Evaluation and Classification Program: Ethanol, Cocaine, and  Marijuana", Vol. 20, October 1996, p. 470, 472, 474. If these symptoms  are not consistent with those found present in the client on the DRE  report, this may call into question the validity of the DRE's  conclusion.  Challenges to the DRE  Aside from challenging the accuracy of the DEC, the defense attorney  can challenge the DRE's qualifications. It may be argued that the DRE  is not a medical doctor and has only had a nine day course and is  therefore not qualified to make a subjective evaluation of the suspect's  physiological symptoms. A lawyer can inquire into what training the DRE   has been given in distinguishing the effects of drugs from those of  other medical conditions. It should be pointed out that only one and a  half pages of the 570 page DRE training manual covers medical conditions  that can be confused with drug impairment. The defense attorney should  get the DRE's training history to see how well he did in the course and  what continued training he has had. The attorney should also try to  find out what the DRE's track record is by requesting  a copy of the running log which DREs are supposed to keep. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated  September 20, 1999, p. 21.  The defense attorney can also try to explain the suspect's symptoms.    For example, high blood pressure, high pulse rate and muscle rigidity   can be caused by the stress of an arrest. Other symptoms may be caused  by mental conditions such as attention deficit disorder or mania or  delirium, or a medical condition such as diabetes, hypertension or an  abnormal movement disorder. There are many natural causes for  nystagmus. In cases involving accidents, symptoms may be due to a  concussion. Lawyers Weekly USA , "Growing New Practice Area for Drunk  Driving Lawyers" dated September 20, 1999, p. 21.  By reading the DRE manual, the defense should be able to find potential  mistakes made by the DRE while conducting the test. The manual warns  that any deviation from the protocol affects the conclusion. So if the  DRE does not administer the evaluation under the conditions recommended  by the manual, this presents the defense with a good argument that the  results are not reliable. Lawyers Weekly USA , "Growing New Practice   Area for Drunk Driving Lawyers" dated September 20, 1999, p. 21.  Other possible arguments may emerge by comparing the DRE's report with  the notes of the arresting officer. There may be inconsistencies.  Another potential argument is that, even if the DRE correctly determines  that the suspect was affected by drugs, that does not necessarily mean  the suspect's driving ability was impaired. Lawyers Weekly USA ,  "Growing New Practice Area for Drunk Driving Lawyers" dated September  20, 1999, p. 21.  For more information, see Lawyers Weekly USA dated September 20,  1999. Copies of the above referenced 1996 and 1998 studies are  available by fax from Lawyers Weekly USA. The 1996 study is "Laboratory  Validation Study of Drug Evaluation and Classification Program: Ethanol,  Cocaine, and Marijuana," Lawyers Weekly USA No. 9916532 (16 pages). The  1998 study is "Laboratory Validation Study of Drug Evaluation and  Classification Program: Alprazolam, d-Amphetamine, Codeine, and  Marijuana," Lawyers Weekly USA No. 9916533 (12 pages). GLOSSARY OF TERMS alcohol gaze nystagmus (AGN) - Gaze nystagmus caused by the effects of alcohol upon the nervous system. caloric nystagmus - A vestibular system nystagmus caused by differences in temperature between the ears, e.g., one ear is irrigated with warm water and the other irrigated with cold water. epileptic nystagmus - Nystagmus evident during an epileptic seizure. field sobriety test (FST) - Any number of tests used by law enforcement officers, usually on the roadside, to determine whether a driver is impaired. Most FSTs test balance, coordination and the ability of the driver to divide his or her attention among several tasks as once. Other tests, such as the horizontal gaze nystagmus test, are used to measure a subject's impairment level. fixation - ability of the eye to focus on one point. gaze nystagmus - Nystagmus that occurs when the eyes gaze or fixate upon an object or image. Usually caused by a disruption of the nervous system. horizontal gaze nystagmus (HGN) - Gaze nystagmus that occurs when the eyes gaze or move to the side along a horizontal plane. jerk nystagmus - Nystagmus where the eye drifts slowly away from a point of focus and then quickly corrects itself with a saccadic movement back to the point of focus. National Highway Traffic Safety Administration (NHTSA) - The agency within the United States Department of Transportation that administers traffic safety programs. NHTSA's duties include funding studies on field sobriety tests and training law enforcement officers in the administration of the standardized field sobriety test battery. natural nystagmus - Nystagmus that occurs without any apparent physiological, vestibular, or neurological disturbance. Natural nystagmus occurs in approximately 2%-4% of the population. neurological nystagmus - Nystagmus caused by some disturbance in the nervous system. nystagmus - An involuntary bouncing or jerking of the eye caused by any number of vestibular, neurological or physiological disturbances. oculomotor - Movement of the eyeball. one-leg-stand (OLS) test - One of the three tests that make up the standardized field sobriety test battery. This test requires a subject to stand on one leg, look at his or her foot and count out loud to thirty. The subject is assessed on the ability to understand and follow instructions as well as the ability to maintain balance for thirty seconds. [post-publication note (August 1999), sentence should read: "...count out loud until told to stop."] optokinetic nystagmus - A nystagmus evident when an object that the eye fixates upon moves quickly out of sight or passes quickly through the field of vision, such as occurs when a subject watches utility poles pass by while in a moving car. Optokinetic nystagmus is also caused by watching alternating moving images, such as black and white spokes on a spinning wheel. oscillate - to move back and forth at a constant rate between two points pathological disorder - Disruptions of the normal functions of organs of the body due to disease, illness, or damage. pendular nystagmus - Nystagmus where the eye oscillates or swings equally in two directions. physiological nystagmus - A nystagmus that occurs so that light entering the eye will continually fall on non-fatigued cells on the retina. Physiological nystagmus is so slight that it cannot be detected without the aid of instruments and it occurs in everyone. positional alcohol nystagmus (PAN) - Positional nystagmus when the foreign fluid is alcohol. PAN I - The alcohol concentration is higher in the blood than in the vestibular system. PAN II - The alcohol concentration is lower in the blood than in the vestibular system. positional nystagmus - Nystagmus that occurs when a foreign fluid is in unequal concentrations between the blood and the fluid in the semi-circular canals of the vestibular system. post-rotational nystagmus - Nystagmus caused by disturbances in the vestibular system fluid when a person spins around. Post-rotational nystagmus lasts for only a few seconds after a person stops spinning. resting nystagmus - Nystagmus that occurs as the eye are looking straight ahead. rotational nystagmus - Nystagmus caused by disturbances in the vestibular system fluid when a person spins around. Rotational nystagmus occurs while the person is spinning. saccadic - Movement of the eye from one fixation point to another. smooth pursuit - The eye's course as it tracks a moving image. Southern California Research Institute (SCRI) - A research organization that conducted the first two research studies that eventually produced the standardized field sobriety test battery. SCRI has conducted subsequent field sobriety test validation studies as well as drug recognition evaluation studies. standardized field sobriety test (SFST) battery - A group of tests selected as the best field sobriety tests to increase the ability of law enforcement officers to detect driver impairment. The results of this battery, usually administered along the roadside, contribute extensively to a law enforcement officer's decision to arrest a person for impaired driving. walk-and-turn (WAT) test - One of the three tests that make up the standardized field sobriety battery. This test requires a person to take nine heel to toe steps down a straight line, turn and take nine heel to toe steps back up the line. The subject is assessed on the ability to understand and follow instructions as well as the ability to maintain balance during the instruction stage and walking stage. vertical nystagmus - nystagmus that occurs when the eyes gaze or move upward along a vertical plane. vestibular system - The system of fluid-filled canals located in the inner ear that assists in balance, coordination and orientation. vestibular system nystagmus - Nystagmus caused by a disturbance in the vestibular system. Consequences of a Criminal Guilty Plea 1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s) 2. Do you understand that if you plead guilty: a. You will have a criminal record b. You may go to Jail or Prison. c. You will have to pay Fines and Court Costs. 3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail. 4. 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. 5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution. 6. 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. 7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty. 8. You must wait 5-10 years to expunge a first offense. 2C:52-3 9. You could be put on Probation. 10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30. 11. You may be required to do Community Service. 12. 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. 13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. 14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation. 15. You lose the presumption against incarceration in future cases. 2C:44-1 16. You may lose your right to vote. The defense of a person charged with a 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 a criminal offense. Jail for Crimes and Disorderly Conduct: If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms. NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years; (2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years; (3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years; (4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months. 2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed: a. (1) $200,000.00 when the conviction is of a crime of the first degree; (2) $150,000.00 when the conviction is of a crime of the second degree; b. (1) $15,000.00 when the conviction is of a crime of the third degree; (2) $10,000.00 when the conviction is of a crime of the fourth degree; c. $1,000.00, when the conviction is of a disorderly persons offense; d. $500.00, when the conviction is of a petty disorderly persons offense; If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500

Drug Recognition - Predicate Questions to Arresting/SFST Officer

State your name for the record. Where are you employed? What is your current assignment with the police department? How long have you been assigned to traffic patrol? Were you on duty _____________(date)? Did you stop a _______________________________ (description of car)? When you walked up to the car what did you see? Did you notice anything else about the defendant? (There may be a number of foundation questions or questions surrounding the stop that you want to ask the officer. This list of predicate questions is strictly to assist in admitting the HGN test at trial. You will want to develop your own questions for other areas of examination.) Did you ask the defendant to perform field sobriety tests? What are field sobriety tests? Were you trained in administering these tests? Officer, I want to ask you specifically about a test known as horizontal gaze nystagmus or HGN. Are you familiar with this test? What part of the body are you observing when you give this test? Have you received specific training in the administration of the HGN test? What is HGN? Where did you receive your training in the administration of the HGN test? How many hours of training did you receive? When did you receive this training? Who were the instructors? Was there an alcohol workshop as part of your training? What is an alcohol workshop? So you know at the workshop that people have probably been drinking. Do you know how much an individual has had to drink before you test him/her? Do all of the subjects at the alcohol workshop drink? Do you know before administering the field sobriety tests whether a particular subject has been drinking or not? Other than the alcohol workshops, have you given the HGN test to persons that you knew were sober? Under what circumstances? What differences have you observed in the eye movements of sober persons vs. impaired persons in doing this exercise? When you learned the HGN test, were you required to pass a practical skills examination? Please describe this examination. As a result of your training, did you receive any certificates? From what organization(s) did you receive this certificate? Do you have this certificate here today? (If you wish to have the certificate entered into evidence, be sure to have a photocopy to submit. Have the officer bring the original in case there are questions about authenticity, however, enter the photocopy into evidence. Otherwise, the officer may not get the certificate back for months.) Have you had any additional training in the administration of the HGN test other than that which you have just described? Please describe that training. Approximately how many times have you given the HGN test? Do you keep a log of the times you have administered the HGN test? (This is not required and the officer may not maintain a log. Be sure to check this in advance.) What is your purpose in maintaining this log? Officer, based on your training and experience, is the presence of HGN a reliable indicator that a person has consumed alcohol? Is there a standard way in which the test for HGN should be given? Please describe the test. (You might offer as demonstrative evidence a videotape of the HGN test. However, some courts may find such evidence too prejudicial.) What specifically are you looking for when you administer this test? Did you give the test to the defendant in the same way that you have described? Did you ask the defendant if s/he understood what s/he was supposed to do? Did s/he indicate that s/he understood? Did the defendant have any difficulty in following your directions? Officer, I would like to ask you about the six clues you previously testified that you are looking for when you give this test. What is the first clue of the HGN test? (Lack of smooth pursuit) Can you describe for the jury what you mean by a lack of smooth pursuit? When you gave this part of the test to the defendant, what did you see? What is the second clue of the test? (Distinct nystagmus at maximum deviation) How long do you hold the stimulus at the point of maximum deviation? Why? When you gave this part of the test, what did you see? What is the final part of this test? (Angle of onset) How is this part of the test done? How do you estimate the angle of onset? When you gave this part of the test to the defendant, what did you see? What did your observations of the defendant's performance on this test indicate to you? In your experience, is there a connection between horizontal gaze nystagmus and the amount of alcohol a person has consumed? What is that connection? (Be clear before trial that you are not asking the officer to tell you that a specific angle of onset equals a specific BAC. The information you are seeking is that people who have been drinking tend to show nystagmus and the more they have had to drink, the easier the nystagmus is to see. You might even have a judge allow the officer to state that the earlier the angle of onset, the higher the BAC but be careful not to sound as if a numeric correlation is being made.) Officer, are the clues you saw when you administered the test to defendant indicative of alcohol impairment? Based on your training and experience, what does the presence of all six clues indicate? And how many clues did you see when you gave the test to the defendant?

Drug Possession

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. 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. 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.

Drug Crimes

Kenneth Vercammen has defended individuals charged with drug offenses in both Superior Court and Municipal Court. The Municipal Courts of New Jersey have 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 CDS to police; NJSA 2C:36-2, possession of drug paraphernalia Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed. If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge. CONDITIONAL DISCHARGE New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted supervisory treatment under 24:21-27, 2C:43-12 or 2C: 36A-l 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 to the court, you 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. You 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. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendants drivers license 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.  SUPPRESSION MOTION A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5-7. The court rules have been amended to provide the Suppression Motion can be held directly in the Municipal Court. Your attorney can 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 very important. PRE-TRIAL The Municipal Court prosecutor is responsible for providing discovery. Rules 3:13-3, 7:4-2, 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 have to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35-19. If the State intends to introduce 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 shall be served on defense counsel at least 20 days before the proceeding begins. This includes an actual copy of the lab certificate. Within 10 days of receipt, the Defense counsel must notify the Prosecutor in writing. This will not only alert the Prosecutor to the Defendants objections concerning the admission of the lab certificate into evidence, but also set forth grounds for the objection, 2C:35-19c. 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). 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 intention 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. 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. 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 that there was insufficient evidence that the defendant, a passenger in the front seat, had constructive possession of CDS secretly contained in envelopes in a vinyl bag resting on the back seat next to another passenger in the car. In addition to establishing if the item seized is a 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 the 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. CONCLUSION Drug related offenses carry substantial penalties which will effect a person 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. Do not permit drug use and you will not have to worry about the substantial penalties.   New Drug Possession Law: 2C:35-10 Possession, use or being under the influence, or failure to make lawful disposition 2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition. a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to: (1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $35,000.00 may be imposed; (2) Any controlled dangerous substance, or its analog, classified in Schedule V, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $15,000.00 may be imposed; (3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish is guilty of a crime of the fourth degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or (4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person. Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service. b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person. In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog. c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute. Amended 1988, c.44, s.5; 1997, c.181, s.6. 2C:35-10.2 Possession, etc. of gamma hydroxybutyrate; penalties 4. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, gamma hydroxybutyrate unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section. L.1997,c. 194, s.4. 2C:35-10.3 Possession, etc. of flunitrazepam; penalties 6. a. It is a crime of the third degree for any person, knowingly or purposely, to obtain, or to possess, flunitrazepam, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L.1970, c.226 (C.24:21-1 et seq.). b. Notwithstanding the provisions of N.J.S.2C:43-3 or any other law, a fine of up to $100,000.00 may be imposed upon a person who violates this section. L.1997,c. 194, s.6.

Drug Court

- Drug use in the US expanded with the crack cocaine epidemic of the mid-1980’s; the number of drug arrests skyrocketed - The initial Criminal Justice System response was stricter laws that filled the US prisons -As drug use was not influenced by the new laws, court dockets were overwhelmed and new strategies were developed to deal with the increase -Expedited Drug Case Management, the early “Drug Courts” dealt with case processing issues only -Even when mandated into treatment, most did not remain ________ 2C:35-14  Rehabilitation program for drug and alcohol dependent persons; criteria for imposing special probation; ineligible offenders; prosecutorial objections; mandatory commitment to residential treatment facilities; presumption of revocation; brief incarceration in lieu of permanent revocation. a. Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S.2C:44-1, and except as provided in subsection c. of this section, whenever a drug or alcohol dependent person is convicted of or adjudicated delinquent for an offense, other than one described in subsection b. of this section, the court, upon notice to the prosecutor, may, on motion of the person, or on the courts own motion, place the person on special probation, which shall be for a term of five years, provided that the court finds on the record that: (1) the person has undergone a professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment; and (2) the person is a drug or alcohol dependent person within the meaning of N.J.S.2C:35-2 and was drug or alcohol dependent at the time of the commission of the present offense; and (3) the present offense was committed while the person was under the influence of a controlled dangerous substance, controlled substance analog or alcohol or was committed to acquire property or monies in order to support the persons drug or alcohol dependency; and (4) substance abuse treatment and monitoring will serve to benefit the person by addressing his drug or alcohol dependency and will thereby reduce the likelihood that the person will thereafter commit another offense; and (5) the person did not possess a firearm at the time of the present offense and did not possess a firearm at the time of any pending criminal charge; and (6) the person has not been previously convicted on two or more separate occasions of crimes of the first, second or third degree, other than crimes defined in N.J.S.2C:35-10; and (7) the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, robbery, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States; and (8) a suitable treatment facility licensed and approved by the Department of Health and Senior Services is able and has agreed to provide appropriate treatment services in accordance with the requirements of this section; and (9) no danger to the community will result from the person being placed on special probation pursuant to this section. In determining whether to sentence the person pursuant to this section, the court shall consider all relevant circumstances, and shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing or other court proceedings, and shall also consider the presentence report and the results of the professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment. As a condition of special probation, the court shall order the person to enter a treatment program at a facility licensed and approved by the Department of Health and Senior Services, to comply with program rules and the requirements of the course of treatment, to cooperate fully with the treatment provider, and to comply with such other reasonable terms and conditions as may be required by the court or by law, pursuant to N.J.S.2C:45-1, and which shall include periodic urine testing for drug or alcohol usage throughout the period of special probation.  Subject to the requirements of subsection d. of this section, the conditions of special probation may include different methods and levels of community-based or residential supervision. b. A person shall not be eligible for special probation pursuant to this section if the person is convicted of or adjudicated delinquent for: (1) a crime of the first degree; (2) a crime of the first or second degree enumerated in subsection d. of N.J.S.2C:43-7.2; (3) a crime, other than that defined in N.J.S.2C:35-7, for which a mandatory minimum period of incarceration is prescribed under chapter 35 of this Title or any other law; or (4) an offense that involved the distribution or the conspiracy or attempt to distribute a controlled dangerous substance or controlled substance analog to a juvenile near or on school property. c. A person convicted of or adjudicated delinquent for an offense under section 1 of P.L.1987, c.101 (C.2C:35-7), subsection b. of section 1 of P.L.1997, c.185 (C.2C:35-4.1), or any crime for which there exists a presumption of imprisonment pursuant to subsection d. of N.J.S.2C:44-1 or any other statute, or who has been previously convicted of an offense under subsection a. of N.J.S.2C:35-5 or a similar offense under any other law of this State, any other state or the United States, shall not be eligible for sentence in accordance with this section if the prosecutor objects to the person being placed on special probation.  The court shall not place a person on special probation over the prosecutors objection except upon a finding by the court of a gross and patent abuse of prosecutorial discretion.  If the court makes a finding of a gross and patent abuse of prosecutorial discretion and imposes a sentence of special probation notwithstanding the objection of the prosecutor, the sentence of special probation imposed pursuant to this section shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution. d. A person convicted of or adjudicated delinquent for a crime of the second degree or of a violation of section 1 of P.L.1987, c.101 (C.2C:35-7), or who previously has been convicted of or adjudicated delinquent for an offense under subsection a. of N.J.S.2C:35-5 or a similar offense under any other law of this State, any other state or the United States, who is placed on special probation under this section shall be committed to the custody of a residential treatment facility licensed and approved by the Department of Health and Senior Services, whether or not residential treatment was recommended by the person conducting the diagnostic assessment.  The person shall be committed to the residential treatment facility immediately, unless the facility cannot accommodate the person, in which case the person shall be incarcerated to await commitment to the residential treatment facility.  The term of such commitment shall be for a minimum of six months, or until the court, upon recommendation of the treatment provider, determines that the person has successfully completed the residential treatment program, whichever is later, except that no person shall remain in the custody of a residential treatment facility pursuant to this section for a period in excess of five years.  Upon successful completion of the required residential treatment program, the person shall complete the period of special probation, as authorized by subsection a. of this section, with credit for time served for any imprisonment served as a condition of probation and credit for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility.  The person shall not be eligible for early discharge of special probation pursuant to N.J.S.2C:45-2, or any other provision of the law.  The court, in determining the number of credits for time spent in residential treatment, shall consider the recommendations of the treatment provider.  A person placed into a residential treatment facility pursuant to this section shall be deemed to be subject to official detention for the purposes of N.J.S.2C:29-5 (escape). e. The probation department or other appropriate agency designated by the court to monitor or supervise the persons special probation shall report periodically to the court as to the persons progress in treatment and compliance with court-imposed terms and conditions.  The treatment provider shall promptly report to the probation department or other appropriate agency all significant failures by the person to comply with any court imposed term or condition of special probation or any requirements of the course of treatment, including but not limited to a positive drug or alcohol test or the unexcused failure to attend any session or activity, and shall immediately report any act that would constitute an escape.  The probation department or other appropriate agency shall immediately notify the court and the prosecutor in the event that the person refuses to submit to a periodic drug or alcohol test or for any reason terminates his participation in the course of treatment, or commits any act that would constitute an escape. f. (1) Upon a first violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court in its discretion may permanently revoke the persons special probation. (2) Upon a second or subsequent violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the persons special probation unless the court finds on the record that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue on special probation, and the court is clearly convinced, considering the nature and seriousness of the violations, that no danger to the community will result from permitting the person to continue on special probation pursuant to this section.  The courts determination to permit the person to continue on special probation following a second or subsequent violation pursuant to this paragraph may be appealed by the prosecution. (3) In making its determination whether to revoke special probation, and whether to overcome the presumption of revocation established in paragraph (2) of this subsection, the court shall consider the nature and seriousness of the present infraction and any past infractions in relation to the persons overall progress in the course of treatment, and shall also consider the recommendations of the treatment provider.  The court shall give added weight to the treatment providers recommendation that the persons special probation be permanently revoked, or to the treatment providers opinion that the person is not amenable to treatment or is not likely to complete the treatment program successfully. (4) If the court permanently revokes the persons special probation pursuant to this subsection, the court shall impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent.  The court shall conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing.  If the court determines or is required pursuant to any other provision of this chapter or any other law to impose a term of imprisonment, the person shall receive credit for any time served in custody pursuant to N.J.S.2C:45-1 or while awaiting placement in a treatment facility pursuant to this section, and for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility.  The court, in determining the number of credits for time spent in a residential treatment facility, shall consider the recommendations of the treatment provider. (5) Following a violation, if the court permits the person to continue on special probation pursuant to this section, the court shall order the person to comply with such additional terms and conditions, including but not limited to more frequent drug or alcohol testing, as are necessary to deter and promptly detect any further violation. (6) Notwithstanding any other provision of this subsection, if the person at any time refuses to undergo urine testing for drug or alcohol usage as provided in subsection a. of this section, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the persons special probation.  Notwithstanding any other provision of this section, if the person at any time while committed to the custody of a residential treatment facility pursuant to this section commits an act that would constitute an escape, the court shall forthwith permanently revoke the persons special probation. (7) An action for a violation under this section may be brought by a probation officer or prosecutor or on the courts own motion.  Failure to complete successfully the required treatment program shall constitute a violation of the persons special probation.  A person who fails to comply with the terms of his special probation pursuant to this section and is thereafter sentenced to imprisonment in accordance with this subsection shall thereafter be ineligible for entry into the Intensive Supervision Program. g. When a person on special probation is subject to a presumption of revocation on a second or subsequent violation pursuant to paragraph (2) of subsection f. of this section, or when the person refuses to undergo drug or alcohol testing pursuant to paragraph (6) of subsection f. of this section, the court may, in lieu of permanently revoking the persons special probation, impose a term of incarceration for a period of not less than 30 days nor more than six months, after which the persons term of special probation pursuant to this section may be reinstated.  In determining whether to order a period of incarceration in lieu of permanent revocation pursuant to this subsection, the court shall consider the recommendations of the treatment provider with respect to the likelihood that such confinement would serve to motivate the person to make satisfactory progress in treatment once special probation is reinstated.  This disposition may occur only once with respect to any person unless the court is clearly convinced that there are compelling and extraordinary reasons to justify reimposing this disposition with respect to the person.  Any such determination by the court to reimpose this disposition may be appealed by the prosecution.  Nothing in this subsection shall be construed to limit the authority of the court at any time during the period of special probation to order a person on special probation who is not subject to a presumption of revocation pursuant to paragraph (2) of subsection f. of this section to be incarcerated over the course of a weekend, or for any other reasonable period of time, when the court in its discretion determines that such incarceration would help to motivate the person to make satisfactory progress in treatment. h. The court, as a condition of its order, and after considering the persons financial resources, shall require the person to pay that portion of the costs associated with his participation in any rehabilitation program or period of residential treatment imposed pursuant to this section which, in the opinion of the court, is consistent with the persons ability to pay, taking into account the courts authority to order payment or reimbursement to be made over time and in installments. i. The court shall impose, as a condition of the special probation, any fine, penalty, fee or restitution applicable to the offense for which the person was convicted or adjudicated delinquent. L.1987, c.106, s.1; amended 1999, c.376, s.2; 2001, c.129, s.2.

Double Jeopardy Bars Prosecution for Same Conduct Double Jeopardy Bars Prosecution for Same Conduct State v. Colon 373 NJ Super. ___ (App. Div. 2005) This opinion addresses the recurrent issues that arise from the application of constitutional, statutory and equitable double jeopardy principles when a municipal court prosecution has resulted in pleas of guilty while an indictment arising from the same series of events is pending. In particular, it focuses on the effect of massive deficiencies in the municipal court proceedings on a subsequent double jeopardy claim, on the potential for continued use by the New Jersey Supreme Court of "same conduct" test in determining double jeopardy under state constitutional principle, and on the burden of proving that the same evidence supports both convictions in circumstances in which the factual basis for the pleas in municipal court is unstated. Hire a Trial Attorney To Represent You If Charged With a Criminal Or Serious Motor Vehicle Matter Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office also helps people with traffic/municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended. Criminal and Motor vehicle violations can cost you. You may have to pay high fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV/MVC [Motor Vehicle Commission] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal and motor vehicle violations. When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV/MVC surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule a free in-office consultation if you need experienced legal representation in a traffic/municipal court matter. Our website KennethVercammen.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations. Call the Law Office of Kenneth Vercammen at 732-572-0500 to schedule a free in-office consultation to hire a trial attorney for Criminal/ DWI/ Municipal Court Traffic/ Drug offenses.

Domestic Violence in New Jersey

New Jersey domestic violence laws are very strict. If there any signs of physical injuries the police must arrest the abuser. Even without independent witnesses and no physical injuries, police may arrest the abuser. Domestic Violence is a crime under the law, and the police must respond to the calls of victims. The police are required to give the victim information about their rights and to help them. Among other things, police must write up a report. For example, O.J. Simpson would not have gotten away with abuse in New Jersey. Police are automatically required to arrest an abuser if they see any evidence of abuse or assault. Even during the evening your town Municipal Court or Superior Court can issue a civil restraining order which is a legally enforceable document. The temporary restraining order will prohibit the defendant/abuser from harassing you or entering your residence. Unlike a criminal case where a person is provided with lengthy due process, and if guilty receives probation and a monetary fine, a domestic violence hearing allows judges to issue far reaching orders. A domestic violence hearing is usually held within only ten (10) days of the filing of an ex parte complaint and temporary restraining order. After a hearing , NJSA 2C:25-29 (b) allows the Chancery Division, Family Part Judge to grant substantial relief to the complainant. Among the relief the Court may give is: An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act. An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties... An order providing for visitation...[ meaning the complainant obtains custody] An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence... An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim... An order restraining the defendant from making any communication likely to cause annoyance or alarm... An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members... An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, any identification documents, a key, and other personal effects. An order awarding emergent monetary relief to the victim and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law. An Order awarding temporary custody of a minor child. The court shall presume that the best interests of the child shall be served by an award of custody to the non- abusive parent. An Order requiring that a law enforcement officer accompany either party to the residence to supervise the removal of personal belongings. An Order permitting the victim and the defendant to occupy the same premises only if the plaintiff requests such an order. An Order granting any other appropriate relief for the plaintiff and minor children An Order that the defendant report to the intake office of the Family Part for monitoring An Order prohibiting the defendant from possessing any firearm or weapon Recent caselaw protects victims. In Pepe v Pepe, 258 N.J. Super. 157 (Chan. Div. 1992) held that the confidentiality provision of record keeping under the Domestic Violence act applies to the records kept on file with the Clerk of the Superior Court. The court held that in determining whether or not a statutory imposed confidential record should be made public, the court must consider whether the release of the documents will be harmful to the victim, whether adverse publicity will be a factor and whether access to court records will discourage the victim from coming forward. Despite the substantial financial burden and life restrictions (often referred to as penalties), the burden of proof in a DOMESTIC VIOLENCE hearing is only a preponderance of evidence. Hopefully, parties will put best interests of children ahead of short term animosity. Financial limitations often limit the family ability to become involved in lengthy divorce and custody battles. A DOMESTIC VIOLENCE complaint can be withdrawn. For additional information, speak with an attorney experienced in handling Domestic Violence matters. Domestic violence statute revised: 2C:25-29.1 Civil penalty for certain domestic violence offenders. 1.In addition to any other disposition, any person found by the court in a final hearing pursuant to section 13 of P.L.1991, c.261 (C.2C:25-29) to have committed an act of domestic violence shall be ordered by the court to pay a civil penalty of at least $50, but not to exceed $500. In imposing this civil penalty, the court shall take into consideration the nature and degree of injury suffered by the victim. The court may waive the penalty in cases of extreme financial hardship. L.2001,c.195,s.1. 2C:25-29.2 Collection, distribution of civil penalties collected. 2.All civil penalties imposed pursuant to section 1 of P.L.2001, c.195 (C.2C:25-29.1) shall be collected as provided by the Rules of Court. All moneys collected shall be forwarded to the Domestic Violence Victims Fund established pursuant to section 3 of P.L.2001, c.195 (C.30:14-15). L.2001,c.195,s.2. 2C:25-29.3 Rules of Court. 4.The Supreme Court may promulgate Rules of Court to effectuate the purposes of this act. L.2001,c.195,s.4. 2C:25-29.1 Civil penalty for certain domestic violence offenders. 1.In addition to any other disposition, any person found by the court in a final hearing pursuant to section 13 of P.L.1991, c.261 (C.2C:25-29) to have committed an act of domestic violence shall be ordered by the court to pay a civil penalty of at least $50, but not to exceed $500. In imposing this civil penalty, the court shall take into consideration the nature and degree of injury suffered by the victim. The court may waive the penalty in cases of extreme financial hardship. L.2001,c.195,s.1. 2C:25-29.2 Collection, distribution of civil penalties collected. 2.All civil penalties imposed pursuant to section 1 of P.L.2001, c.195 (C.2C:25-29.1) shall be collected as provided by the Rules of Court. All moneys collected shall be forwarded to the Domestic Violence Victims Fund established pursuant to section 3 of P.L.2001, c.195 (C.30:14-15). L.2001,c.195,s.2. 2C:25-30. Violations, penalties 14. Except as provided below, a violation by the defendant of an order issued pursuant to this act shall constitute an offense under subsection b. of N.J.S.2C:29-9 and each order shall so state. All contempt proceedings conducted pursuant to N.J.S.2C:29-9 involving domestic violence orders, other than those constituting indictable offenses, shall be heard by the Family Part of the Chancery Division of the Superior Court. All contempt proceedings brought pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.) shall be subject to any rules or guidelines established by the Supreme Court to guarantee the prompt disposition of criminal matters. Additionally, and notwithstanding the term of imprisonment provided in N.J.S.2C:43-8, any person convicted of a second or subsequent nonindictable domestic violence contempt offense shall serve a minimum term of not less than 30 days. Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of this act shall be excluded from enforcement under subsection b. of N.J.S.2C:29-9; however, violations of these orders may be enforced in a civil or criminal action initiated by the plaintiff or by the court, on its own motion, pursuant to applicable court rules. L.1991,c.261,s.14; amended 1994,c.93,s.3; 1994,c.94,s.6. 2C:25-31 Contempt, law enforcement procedures. 15.Where a law enforcement officer finds that there is probable cause that a defendant has committed contempt of an order entered pursuant to the provisions of P.L.1981, c.426 (C.2C:25-1 et seq.) or P.L.1991, c.261 (C.2C:25-17 et seq.), the defendant shall be arrested and taken into custody by a law enforcement officer. The law enforcement officer shall follow these procedures: The law enforcement officer shall transport the defendant to the police station or such other place as the law enforcement officer shall determine is proper. The law enforcement officer shall: a.Conduct a search of the domestic violence central registry and sign a complaint concerning the incident which gave rise to the contempt charge; b.Telephone or communicate in person or by facsimile with the appropriate judge assigned pursuant to this act and request bail be set on the contempt charge; c.If the defendant is unable to meet the bail set, take the necessary steps to insure that the defendant shall be incarcerated at police headquarters or at the county jail; and d.During regular court hours, the defendant shall have bail set by a Superior Court judge that day. On weekends, holidays and other times when the court is closed, the officer shall arrange to have the clerk of the Family Part notified on the next working day of the new complaint, the amount of bail, the defendants whereabouts and all other necessary details. In addition, if a municipal court judge set the bail, the arresting officer shall notify the clerk of that municipal court of this information. L.1991,c.261,s.15; amended 1994, c.94, s.7; 1999, c.421, s.5. 2C:25-32. Alleged contempt, complainants procedure 16. Where a person alleges that a defendant has committed contempt of an order entered pursuant to the provisions of P.L.1981, c.426 (C.2C:25-1 et seq.) or P.L.1991, c.261, but where a law enforcement officer has found that there is not probable cause sufficient to arrest the defendant, the law enforcement officer shall advise the complainant of the procedure for completing and signing a criminal complaint alleging a violation of N.J.S.2C:29-9. During regular court hours, the assistance of the clerk of the Family Part of the Chancery Division of the Superior Court shall be made available to such complainants. Nothing in this section shall be construed to prevent the court from granting any other emergency relief it deems necessary. L.1991,c.261,s.16. 2C:25-33 Records of applications for relief; reports; confidentiality; forms. 17. a. The Administrative Office of the Courts shall, with the assistance of the Attorney General and the county prosecutors, maintain a uniform record of all applications for relief pursuant to sections 9, 10, 11, 12, and 13 of P.L.1991, c.261 (C.2C:25-25, C.2C:25-26, C.2C:25-27, C.2C:25-28, and C.2C:25-29). The record shall include the following information: (1)The number of criminal and civil complaints filed in all municipal courts and the Superior Court; (2)The sex of the parties; (3)The relationship of the parties; (4)The relief sought or the offense charged, or both; (5)The nature of the relief granted or penalty imposed, or both, including, but not limited to, the following: (a)custody; (b)child support; (c)the specific restraints ordered; (d)any requirements or conditions imposed pursuant to paragraphs (1) through (18) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29), including but not limited to professional counseling or psychiatric evaluations; (6)The effective date of each order issued; and (7)In the case of a civil action in which no permanent restraints are entered, or in the case of a criminal matter that does not proceed to trial, the reason or reasons for the disposition. It shall be the duty of the Director of the Administrative Office of the Courts to compile and report annually to the Governor, the Legislature and the Advisory Council on Domestic Violence on the data tabulated from the records of these orders. All records maintained pursuant to this act shall be confidential and shall not be made available to any individual or institution except as otherwise provided by law. b.In addition to the provisions of subsection a. of this section, the Administrative Office of the Courts shall, with the assistance of the Attorney General and the county prosecutors, create and maintain uniform forms to record sentencing, bail conditions and dismissals. The forms shall be used by the Superior Court and by every municipal court to record any order in a case brought pursuant to this act. Such recording shall include but not be limited to, the specific restraints ordered, any requirements or conditions imposed on the defendant, and any conditions of bail. L.1991,c.261,s.17; amended 1994, c.94, s.8; 1999, c.119, s.1; 1999, c.421, s.6. 2C:25-34 Domestic violence restraining orders, central registry. 1.The Administrative Office of the Courts shall establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them, all persons who have been charged with a crime or offense involving domestic violence, and all persons who have been charged with a violation of a court order involving domestic violence. All records made pursuant to this section shall be kept confidential and shall be released only to: a.A public agency authorized to investigate a report of domestic violence; b.A police or other law enforcement agency investigating a report of domestic violence, or conducting a background investigation involving a persons application for a firearm permit or employment as a police or law enforcement officer or for any other purpose authorized by law or the Supreme Court of the State of New Jersey; or c.A court, upon its finding that access to such records may be necessary for determination of an issue before the court. Any individual, agency or court which receives from the Administrative Office of the Courts the records referred to in this section shall keep such records and reports, or parts thereof, confidential and shall not disseminate or disclose such records and reports, or parts thereof; provided that nothing in this section shall prohibit a receiving individual, agency or court from disclosing records and reports, or parts thereof, in a manner consistent with and in furtherance of the purpose for which the records and reports or parts thereof were received. Any individual who disseminates or discloses a record or report, or parts thereof, of the central registry, for a purpose other than investigating a report of domestic violence, conducting a background investigation involving a persons application for a firearm permit or employment as a police or law enforcement officer, making a determination of an issue before the court, or for any other purpose other than that which is authorized by law or the Supreme Court of the State of New Jersey, shall be guilty of a crime of the fourth degree. L.1999,c.421,s.1.