Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate 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.

To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box www.njlaws.com.

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500

Wednesday, July 22, 2020

Anthony Raccuia - Summer 2020 Law Clerk - & Kenneth Vercammen

Anthony Raccuia of Tulane Law School - Class of 2022
Summer 2020 Law Clerk - with Kenneth Vercammen

Alexander Romero - Summer 2020 Law Clerk - & Kenneth Vercammen

Alexander Romero of St. Joseph's University - Class of 2021
Summer 2020 Law Clerk - with Kenneth Vercammen

Xenovia Bartholomew - Summer 2020 Law Clerk - & Kenneth Vercammen

Xenovia Bartholomew of Northeastern Law - Class of 2022
Summer 2020 Law Clerk - with Kenneth Vercammen

Reyadh Nagi - Summer 2020 Law Clerk - & Kenneth Vercammen

Reyadh Nagi of Hofstra Law School - Class of 2022
Summer 2020 Law Clerk - with Kenneth Vercammen

Gregory Youssef - Summer 2020 Law Clerk - & Kenneth Vercammen

Gregory Youssef of Rutgers Law School Newark - Class of 2022
Summer 2020 Law Clerk - with Kenneth Vercammen

Patrick Foy - Summer 2020 Law Clerk - & Kenneth Vercammen

Patrick Foy of Seton Hall Law School - Class of 2021
Summer 2020 Law Clerk - with Kenneth Vercammen

Tuesday, July 21, 2020

Law Clerks & Law Students for Summer 2020 of Kennth Vercammen & Associates, P.C.

Summer 2020 Law Clerks & Law Students of Kennth Vercammen & Associates, P.C.

Summer 2020 Law Clerks & Kenneth Vercammen

Front Row: Xenovia Bartholomew of Northeastern Law, Anthony Raccuia of Tulane Law, Gregory Youssef of Rutgers Law Newark, & Kenneth Vercammen

Back Row: Patrick Foy of Seton Hall Law, Alexander Romero of St. Joseph's University, & Reyadh Nagi of Hofstra Law


Law Students of Kenneth Vercammen & Associates, P.C.:

Front Row: Xenovia Bartholomew of Northeastern Law & Gregory Youssef of Rutgers Law Newark

Back Row: Patrick Foy of Seton Hall Law, Anthony Raccuia of Tulane Law, & Reyadh Nagi of Hofstra Law

Saturday, June 20, 2020

Bill to decriminalize pot approved by N.J. Assembly. Next is Senate vote. Instead of arrest, a $50 fine.

Bill to decriminalize pot approved by N.J. Assembly. Next is Senate vote. Instead of arrest, a $50 fine.
A1897/4269 (ACS) Provides for certain criminal and civil justice reforms, particularly with respect to legal consequences associated with certain marijuana and hashish offences as well as broadening awareness of available expungement relief.*
STATEMENT TO
ASSEMBLY COMMITTEE SUBSTITUTE FOR 
ASSEMBLY, Nos. 1897 and 4269 JUNE 15, 2020 
The Assembly Community Development and Affairs Committee reports favorably an Assembly Committee Substitute for Assembly Bill Nos. 1897 and 4269. 
This substitute bill would provide for various “social justice” reforms, some based on criminal justice and others based on civil justice, which would reduce the legal consequences associated with certain marijuana and hashish offenses as well as broaden awareness of available expungement relief, concerning both marijuana and hashish offenses and more generally. 
Regrading Marijuana and Hashish Offenses 
The bill would address the manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense (hereafter shortened to just distributing, which includes possessing or having under control) less than five pounds of marijuana or less than one pound of hashish, by either regrading the offense or altering the threshold amounts for grading an offense. 
Under current law, distribution of less than five pounds, but at least one ounce or more, of marijuana, or distribution of less than one pound, but at least five grams or more, of hashish, is punishable as a crime of the third degree; this crime can be punished by a term of imprisonment of three to five years, a fine of up to $25,000, or both. Distribution of any smaller amounts, that is, less than one ounce of marijuana or less than five grams of hashish, is punishable as a crime of the fourth degree; this crime can be punished by a term of imprisonment of up to 18 months, a fine of up to $10,000, or both. See N.J.S.2C:35-10, subsection b., paragraphs (11) and (12). 
The bill would either regrade or alter the threshold amounts for grading an unlawful distribution offense involving less than five pounds of marijuana or less than one pound of hashish as follows: 
- one pound or more but less than five pounds of marijuana, or one-half pound or more but less than one pound of hashish would be a crime of the third degree (three to five years imprisonment; up to $25,000 fine; or both); 
- two ounces or more but less than one pound of marijuana, or five grams or more but less than one-half pound of hashish would be a disorderly persons offense based on a first offense (up to six months imprisonment; up to $1,000 fine; or both), and would be a crime of the fourth degree for a second or subsequent offense (up to 18 months imprisonment; up to $10,000 fine; or both); and 
- less than two ounces of marijuana, or less than five grams of hashish would be an unlawful act subject only to a civil penalty of $50. This penalty would be recovered in a summary proceeding before the municipal court having jurisdiction, and would get paid into the treasury of the municipality in which the violation occurred for the general use of the municipality. 
The bill would also regrade or alter the threshold amounts for grading the unlawful possession of marijuana or hashish. First, the maximum amount constituting a small amount marijuana possession violation under paragraph (4) of subsection a. of N.J.S.2C:35-10 would increase from 50 grams (1.76 ounce) or less to two ounces or less (the amount constituting a small amount hashish possession violation under this paragraph would remain the same, at five grams or less). Second, possession of this amount of marijuana or hashish would be reduced from a fourth degree crime or disorderly persons offense, depending upon the amount possessed in accordance with the pre-reform possession categories, to an unlawful act subject only to a civil penalty of $50; and the bill would establish a legal presumption that the possession of such amount of marijuana or hashish is the authorized possession of medical cannabis or a medical cannabis product in accordance with the “Jake Honig Compassionate Use Medical Cannabis Act,” P.L.2009, c.307 (C.24:6I-1 et al.), or the authorized possession of such amount in accordance with P.L.2015, c.158 (C.18A:40-12.22 et al.). If the presumption can be overcome, by a preponderance of evidence, that a substance possessed was illegal marijuana or hashish, the $50 civil penalty may be imposed. The civil penalty would be recovered in a summary proceeding before the municipal court having jurisdiction, and would get paid into the treasury of the municipality in which the violation occurred for the general use of the municipality. 
Reducing the Legal Consequences of Certain Marijuana and Hashish Offenses 
No court would have jurisdiction over any charge, including any charge of delinquency, except to the extent required to dismiss, withdraw, or terminate the charge, based on a prior small amount distribution or possession violation that would now only be punishable by a civil penalty, unless a final judgment of conviction or adjudication of delinquency had been entered on or before the bill’s effective date. These non-prosecutable charges and cases would be expeditiously dismissed, which could be accomplished by appropriate action by a law enforcement agency, or on a motion to the court with jurisdiction over a case, or the court’s own motion, based upon guidelines or directives issued by the Attorney General, the Administrative Director of the Courts, and the Supreme Court. 
Any past, present, or future charge, conviction, or adjudication of delinquency for an even broader array of marijuana and hashish offenses would not be considered whenever the Pretrial Services Program established by the Administrative Office of the Courts conducted a risk assessment on a person for the purpose of making recommendations to a court about an appropriate pretrial release or pretrial detention decision for that individual in accordance with sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.). These non-considered offenses would include: 
- unlawful distribution of less than five pounds of marijuana, or less than one pound of hashish, in violation of paragraph (11) or (12) of subsection b. of N.J.S.2C:35-5, or a violation of either of those paragraphs and a violation of subsection a. of section 1 of P.L.1987, c.101 (C.2C:35-7) or subsection a. of section 1 of P.L.1997, c.327 (C.2C:35-7.1), for distributing on or within 1,000 feet of any school property, or on or within 500 feet of the real property comprising a public housing facility, public park, or public building; 
- obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of any amount of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., subsection b., or subsection c. of N.J.S.2C:35-10; or 
- a violation involving any of the aforementioned offenses and using or possessing with intent to use drug paraphernalia with that marijuana or hashish in violation of N.J.S.2C:36-2. 
The bill would also establish grounds for post-conviction relief due to a past conviction or adjudication of delinquency for any of the above described marijuana or hashish offenses, which would permit an opportunity to have a sentence reduced or changed as permitted by the court. 
New Form of “Virtual” Expungement for Certain Marijuana and Hashish Offenses 
Beginning immediately upon the enactment of the bill, any arrest, charge, conviction, or adjudication of delinquency, and proceedings related thereto, for any of the above described broad list of marijuana or hashish offenses that occurred prior to the bill’s effective date would be deemed not to have occurred (other than, generally, with respect to the consequences of any sentence set forth in a judgment of conviction), providing such legal relief without need to petition a court for an expungement order granting such result. While persons would be able to respond to questions about such past occurrences accordingly, information about such would still need to be revealed if seeking employment within the judicial branch or with a law enforcement or corrections agency, and the record would be subject to review in accordance with N.J.S.2C:52-15 et seq. 
Promoting Awareness of the Expungement Process The Administrative Director of the Courts would: 
- develop and maintain information, to be provided to a person upon request, about the expungement process and legal services programs Statewide and in each county which may be available to assist the person with an expedited expungement, pursuant to section 5 of P.L.2019, c.269 (C.2C:52-5.1), for the various marijuana and hashish distribution, possession, and drug paraphernalia offenses described above under the statement subheading Reducing the Legal Consequences of Certain Marijuana and Hashish Offenses, or a “clean slate” expungement, which generally addresses a person’s entire criminal record, pursuant to section 7 of P.L.2019, c.269 (C.2C:52-5.3); and 
- develop a multilingual public awareness campaign to promote awareness of the expungement process, as well as information on State, local, nonprofit and other private job training programs in consultation with the Department of Labor and Workforce Development, with a focus on assisting those persons eligible for an expedited expungement or “clean slate” expungement. 
Civil Justice Reforms 
In addition to the above described criminal justice relief largely focused on marijuana and hashish offenses and broadening awareness of the expungement process for clearing records, the bill would provide an array of civil protections against discrimination targeting persons with an arrest, charge, conviction, or adjudication of delinquency involving any of the aforementioned marijuana and hashish distribution, possession, and drug paraphernalia crimes or offenses (see list under statement heading Reducing the Legal Consequences of Certain Marijuana and Hashish Offenses), or targeting persons with a civil penalty for committing an unlawful act of distribution or possession with marijuana or hashish. These protections would include monetary penalties, enforceable by the State, against employers regarding employment actions or persons involved with mortgage lending activities, as well as a private cause of action for discrimination in public or private housing, real property, or any place of public accommodation. 
Lastly, the bill would make confidential, and no longer a government record subject to public inspection under P.L.1963, c.73 (C.47:1A-1 et seq.), the portion of any criminal record concerning a person’s detection, apprehension, arrest, detention, trial or disposition for any of the aforementioned crimes or offenses, or any record concerning a person’s commission of any of the aforementioned unlawful acts subject to a civil penalty. 
https://www.njleg.state.nj.us/2020/Bills/A2000/1897_S1.PDF

Tuesday, June 2, 2020

NJ Municipal courts are back in (Zoom) Session

NJ Municipal courts are back in (Zoom) Session

We are helping clients by resolving cases while courts physically closed due to Covid
1.  After attorney is retained, a Letter of Representation is sent to both court and the prosecutor.
2.  We call court to confirm letter received, then ask court which prosecutor is handling the case. Many towns have more than one prosecutor.
3.  We email the prosecutor a proposed reduced charge plea.
4.  After plea deal with prosecutor is confirmed, we prepare a Defense by Certification/ Plea by mail. Often the prosecutor will also email a plea form  to also be agreed by the person charged.
5.  Plea forms are signed by the person charged [the client], then emailed to both court and prosecutor.
6.  For regular traffic tickets, the court will often accept the client’s sign plea form without an appearance on Zoom.
7.  For all criminal charges and serious traffic that are resolved, the court will require an appearance by Zoom, telephone or Microsoft teams. 
8.  We recommend clients review their traffic history and municipal court history for free online prior to the hearing if the judge asks them about prior tickets. https://portal.njcourts.gov/webe5/MPAWeb/index.jsp
You do not need a password to login 
You can Search by: 
Drivers License Number    [for all your traffic violations]
Full Name [for all your traffic violations]

9. After case is resolved, pay by check or online https://portalnjmcdirect-cloud.njcourts.gov/prweb/PRServletPublicAuth/wQ2guhy8lqKPggD8pVI7RLYVZ9vxwNMF*/!STANDARD?AppName=NJMC&fromBrowserHistory=true.

10. Trials and motions with witnesses must wait until physical court sessions resume, unless defendant and attorney consent. I do not recommend zoom trials or motions.

Gerd defense in DWI not proven here State v GINDHART

Gerd defense in DWI not proven here
STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

GEORGE GINDHART,

     Defendant-Appellant.
___________________________

                   Submitted March 3, 2020 – Decided May 11, 2020

                   Before Judges Gilson and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cape May County, Municipal Appeal No. 12-
                   11-17.

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3345-18T4
PER CURIAM Following a trial in the municipal court and a trial de novo on the municipal court record in the Law Division, defendant George Gindhart was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and sentenced as a third-time offender. As part of his sentence, the court revoked defendant's driver's license for ten years, required him to serve 180 days in the county jail, ninety of which could be served in an in-patient program, and referred him to the Intoxicated Driver Resource Center. Defendant appeals and argues that the Alcotest, on which his conviction was based, was unreliable for two reasons. First, he contends that the testing procedures were not video recorded. Second, he suffers from gastroesophageal reflux disease (GERD) and argues that condition may have contaminated the breath samples. We reject both these arguments and affirm. In the Law Division, Judge Sarah Beth Johnson made detailed findings of fact, which she set forth in a thorough written opinion issued on January 9, 2019. Our review of the record establishes that all those findings are supported by substantial credible evidence in the record. Accordingly, we need not detail the facts and will only give a brief summary. On January 28, 2016, defendant had two encounters with Police Officer Thomas Flounders and Police Officer Jerald Garriott in North Wildwood. He A-3345-18T4 2 was first found in his car outside his vacation home at approximately 1:00 a.m. in the morning. Both officers smelled alcohol and noted his slurred speech. Officer Flounders also observed that defendant had bloodshot eyes. Officer Garriott directed defendant to go into his home and not to drive. Approximately one hour later, Officer Flounders saw defendant's car driving on a road without its headlights on. The officer followed the car and saw it run a stop sign. Officer Flounders then signaled for the car to pull over and called Officer Garriott to join him. The officers again noted that defendant smelled of alcohol, had slurred speech, and bloodshot eyes. Defendant was directed to engage in several field sobriety tests that he failed. Accordingly, the officers arrested defendant on suspicion of driving while under the influence of alcohol. At the police station, defendant agreed to take an Alcotest. Officer Garriott then conducted the appropriate pre-testing procedures, including observing defendant for twenty minutes. The test results showed that defendant had a blood alcohol concentration of .13 percent. At the trial in the municipal court four witnesses testified. The State called Officer Garriott and Officer Flounders and defendant testified and called an expert witness. The municipal judge and the Law Division judge found both officers credible. Both judges also found that defendant was not credible in A-3345-18T4 3 some of his testimony and was particularly not credible in describing the symptoms and effect of his GERD. As already noted, on this appeal defendant makes two arguments. First, he contends that we should create a new rule requiring that the administration of Alcotests be video-recorded and, if they are not, an adverse inference should arise that the procedures were not properly followed. Second, defendant argues that the Law Division erred in not accepting his testimony and his expert's testimony that his GERD may have contaminated the Alcotest. As previously noted, we are not persuaded by either of these arguments. We apply a deferential standard of review when reviewing the factual findings and credibility findings following a trial de novo in the Law Division. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). Accordingly, we will not disturb factual findings that are supported by sufficient credible evidence in the record. Adubato, 420 N.J. Super. at 176 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Where both a municipal judge and a Law Division judge have found a witness credible, we owe particularly strong deference to the Law Division judge's credibility findings. Locurto, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). We review the Law Division judge's legal conclusions de novo. A-3345-18T4 4 See State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010) (citation omitted). Defendant's first argument presents a question of law. He argues that we should create a new rule and require the State to videotape the administration of an Alcotest if video equipment is available. If the State fails to create such a video record, defendant contends that an adverse inference should arise tha t the State did not fully comply with the procedural requirements established in State v. Chun, 194 N.J. 54 (2008). In making his argument, defendant tries to draw an analogy to the rules requiring or permitting contemporaneous electronic recording of custodial interrogations and out-of-court identifications. See R. 3:17 (requiring electronic recording of custodial interrogations when the suspect is charged with certain crimes such as murder and kidnapping); R. 3:11 (allowing electronic recording of out-of-court identifications "if feasible"). We reject defendant's argument for several reasons. First and foremost, our Supreme Court has never required such video recordings of Alcotests. As demonstrated in Chun and its progeny, the procedures for the Alcotest have been zealously debated and rigorously reviewed. See State v. Cassidy, 235 N.J. 482 (2018); State v. Kuropchak, 221 N.J. 368, 383-84 (2015) (holding that Alcotest readings are reliable and laying out the "mandatory guidelines for establishing A-3345-18T4 5 the Alcotest's reliability"). The Court has imposed numerous procedural requirements but never required the recording of the administration of the Alcotest. Second, we discern no good public policy reason for requiring such a recording procedure. The State has the burden to establish that the Alcotest is properly administered and the equipment is properly tested and in working order. See State v. Campbell, 436 N.J. Super. 264, 270 (App. Div. 2014) (quoting Chun, 194 N.J. at 134). Adding a recording requirement would impose a burden with no showing that it would improve the administration of the test. Moreover, it would run counter to the well-established policy of New Jersey discouraging drunk drivers by imposing a procedure that has no clear benefit. Finally, as demonstrated by this case, defendant's right to a proper administration of the test is protected by the current procedures and there is no need for an additional requirement. Judge Johnson found that the State had presented clear and convincing evidence that Officer Garriott was properly certified to perform such tests, observed defendant continuously for twenty minutes immediately prior to taking his breath samples, and credibly testified that defendant did not put anything in his mouth, hiccup, belch, or do anything else that would have required restarting the observation period. Accordingly, A-3345-18T4 6 the officer conducting the Alcotest complied with all the procedures required by Chun. Defendant's second argument is essentially a fact argument. Defendant contends that he suffers from GERD and that condition may have contaminated his breath samples. Judge Johnson rejected that argument based on factual findings. First, she agreed with the municipal judge and found defendant to be incredible regarding his descriptions of his symptoms of GERD at the time of his arrest. Second, Judge Johnson rejected defendant's expert's testimony. In that regard, defendant called Dr. Lance Gooberman as an expert witness. Dr. Gooberman is a medical doctor who is a general practitioner specializing in addiction medicine with experience in dealing with the effects of alcohol and other drugs on the human body. Dr. Gooberman testified that the breath of someone suffering from GERD could be continuously contaminated with alcohol from the stomach and that the contamination might not be detected by the Alcotest. Judge Johnson rejected that testimony as a net opinion because it was not based on any scientifically reliable evidence supporting the assertion that GERD causes falsely elevated Alcotest readings. In making that finding, Judge Johnson noted that Dr. Gooberman acknowledged that he had performed no scientific research himself A-3345-18T4 7 and he was relying on a 1987 study from Australia that predated the special master's report leading to the Chun decision. We agree with Judge Johnson that Dr. Gooberman's testimony in this matter was a net opinion not supported by scientifically reliable data or research. See N.J.R.E. 703; State v. Townsend, 186 N.J. 473, 494-95 (2006). Indeed, Dr. Gooberman acknowledged that his opinion that defendant's Alcotest reading was consistent with alcohol contamination from GERD was unsupported by scientific research. Affirmed.