ABA ELDER LAW COMMITTEE Newsletter November 2007
ABA General Practice, Solo and Small Firm Division American Bar Association
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN
2 EXECUTOR OF A WILL- DUTIES AND RESPONSIBILITIES
3. BALANCE BILLING between the Medicaid program and the Medicare program.
4. WE PUBLISH YOUR FORMS AND ARTICLES
1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN
By: Thomas D. Begley, Jr., Esquire
What could be done when the Medicaid lien is so large that it would consume all or a substantial portion of the recovery.
A recent United States Supreme Court case has provided personal injury attorneys with ammunition to reduce a Medicaid lien in a personal injury case so that the payment to the State Medicaid Agency is fair and reasonable. After a series of cases around the country divided on the issue as to whether the State Medicaid Agency may recover from that portion of a settlement not earmarked for past medical expenses the United States Supreme Court decided the issue in the Ahlborn case,[1]The Court held that federal law requires states to ascertain the legal liability of third parties and to seek reimbursement for medical assistance to the extent of such legal liability. The state is considered to have acquired the rights of the injured party to payment by any other party for such health care items or services. As a condition of Medicaid eligibility, the individual is required to assign to the state any rights to payment for medical care from any third party. The Arkansas statute required that if the lien exceeds the portion of the settlement representing medical costs, satisfaction of the lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costs, such as pain and suffering, lost wages, and loss of future earnings.
In the Ahlborn case, the plaintiff was involved in an automobile accident. Medicaid paid $215,645.30 on her behalf. Plaintiff filed suit for past medical costs and for other items, including pain and suffering, loss of earnings and working time, and permanent impairment of her future earning ability. The case was settled for $550,000, which was not allocated between categories of damages. The parties stipulated that the settlement amounted to approximately 1/6th of the reasonable value of Ahlborn’s claim. The court stated that the federal requirement that states “seek reimbursement for medical assistance to the extent of such legal liability” refers to the legal liability of third parties to pay for care and services available under the plan.” Here, because the plaintiff received only 1/6th of her overall damages, the right of the state of Arkansas was limited to 1/6th of the past medical claim or $35,581.47.
The court also held that 42 U.S.C. §1396p(a)(1) prohibits states from imposing liens “against the property of any individual prior to his death on account of medical assistance paid...on his behalf under the state plan.” This prevents the state from attaching the non-past medical portion of the settlement. As a result of this ruling, states can assert a Medicaid lien only against that portion of a settlement earmarked for past medical expenses. The state may not recover against non-medical expense claims, such as pain and suffering, loss or earnings and permanent loss of future earnings. Needless to say, it is good practice in a personal injury settlement to make a clear allocation of damages.
Allocation is not only important, but must be fair. As Justice Stevens said in the Ahlborn opinion, “Although more colorable, the alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation also fails. The risk that parties to a tort suit will allocate away the state’s interest can be avoided either by obtaining the state’s advanced agreement to an allocation or, if necessary, by submitting the matter to a court for a decision.”
Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
2 EXECUTOR OF A WILL- DUTIES AND RESPONSIBILITIES
Compiled by Kenneth A. Vercammen, Esq.
Providing service to worried clients who are not familiar with the legal requirements is important to Elder Law attorneys. The following short article can be revised and sent to your clients who are executors or administrators of estates.
The procedures in an Estate Administrat0ion may take from six months to several years, and a client’s patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice. The following a is portion of the details you may wish to inform clients who are executor after you have been retained:
Duty of Executor in Probate Estate Administration
1. Conduct a thorough search of the decedent's personal papers and effects for any evidence which might point you in the direction of a potential creditor;
2. Carefully examine the decedent's checkbook and check register for recurring payments, as these may indicate an existing debt;
3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death;
4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;
Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills. Medical expenses can be deducted in the inheritance tax.
Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every estate is personally responsible to provide actual notice to all known or "readily ascertainable" creditors of the decedent. This means that is your responsibility to diligently search for any "readily ascertainable" creditors.
Other duties/ Executor to Do
Bring Will to Surrogate
Apply to Federal Tax ID #
Set up Estate Account at bank (pay all bills from estate account)
Pay Bills
Notice of Probate to Beneficiaries (Attorney can handle)
If charity, notice to Atty General (Attorney can handle)
File notice of Probate with Surrogate (Attorney can handle)
File first Federal and State Income Tax Return [CPA- ex Marc Kane]
Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)
File waivers within 8 months upon receipt (Attorney can handle)
Prepare Informal Accounting
Prepare Release and Refunding Bond (Attorney can handle)
Obtain Child Support Judgment clearance (Attorney will handle)
Let's review the major duties involved-
In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The court's decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.
An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estate's behalf.
Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.
Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.
Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.
Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.
Distribute the Assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.
Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience
At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executor's job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Let's review the major duties involved, which we've set out below.
In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The court's decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.
An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estate's behalf.
Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.
Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate's assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.
Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.
Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.
Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.
Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience.
www.centraljerseyelderlaw.com
3. BALANCE BILLING between the Medicaid program and the Medicare program.
By: Thomas D. Begley, Jr., Esquire
There is a significant difference on the issue of balance billing between the Medicaid program and the Medicare program.
1. Medicaid. Medicaid reimbursement rates are very low and as a result it is often difficult to obtain services because providers refuse to accept Medicaid. It is not possible for the patient to pay the difference between the private pay rate and the Medicaid pay rate. This is known as balance billing. Medicaid participating providers must accept the Medicaid payment as “payment in full.”[1] This means that providers accepting Medicaid waive their right to bill Medicaid beneficiaries for any amounts over the Medicaid payment.
Several states have refused to allow providers to assert liens against Medicaid beneficiaries where there is clear third party liability and the Medicaid beneficiary has obtained a significant tort recovery.
In Illinois,[2] the hospital brought an action against the Medicaid agency to allow it to refund the Medicaid reimbursement so that it could sue the Medicaid beneficiary who had obtained a substantial tort judgment. The Seventh Circuit held that the hospital could not refund the Medicaid payment to the Medicaid agency and sue the Medicaid beneficiary. The Court noted, “Medicaid is a payer of last resort.” The state can seek reimbursement from third parties, but private providers may not.
In a similar case in Florida,[3] the hospital placed a lien on the settlement award, but the court held that when a Medicaid patient obtains a tort recovery in excess of the medical expenditures paid by Medicaid, that recovery is meant to go to the injured party, not the provider. A similar result was reached in another Florida case.[4]
A federal appellate court has found that a hospital’s lien on the proceeds of a malpractice settlement was invalid and unenforceable because the hospital had already accepted Medicaid payments for the care provided to the patient.[5] “By accepting Medicaid payments, Spectrum waived its right to its customary fee for services provided to Bowling...” “Although Medicaid rates are typically lower than a service provider’s customary fees, medical service providers must accept state-approved Medicaid payment as payment in full and may not require that patients pay anything beyond that amount.”
California invalidated two state statutes authorizing provider liens against Medicaid beneficiaries.[6] The statutes authorized providers to file liens against recoveries obtained by Medicaid beneficiaries even after the provider received Medicaid. The court found that the state statutes were preempted by federal legislation banning balance billing.
2. Medicare. Previously, Medicare had a prohibition against billing Medicare beneficiaries in excess of the payment made by Medicare. Participation has been limited to providers who agreed to accept Medicare as payment in full. Recent changes in the Medicare law[7] now permit a provider to bill a Medicare beneficiary or assert a lien against the beneficiary's recovery obtained from the tortfeasor by way of settlement or award.[8]
In the seminal case,[9] a hospital sought to recover from the Medicare patient more than it received from Medicare reimbursement. The 1st Circuit held that the fact that the patient recovered more than Medicare reimbursed the hospital did not entitle the hospital to charge the patient the difference between its full fee and Medicare's lower flat fee. The agreement between Medicare and the hospital was that in exchange for Medicare guaranteeing payment to the hospital, there would be no additional payment required from the Medicare beneficiary.
The recent changes now allow providers to bill the liability insurer or place a lien against the Medicare beneficiary's recovery.
142 U.S.C. §1396a(a)(25)(c); 42 C.F.R. §447.15; 42 U.S.C. §1320a-7b(d) .
2 Evanston Hospital v. Hauck, 1 F.3d 540 (7th Cir. 1993).
3 Mallo v. Public Health Trust of Dade County, 88 F.Supp.2d 1376 (S.D. Fla. 2000).
4 Public Health Trust of Dade County v. Dade County School Board, 693 So.2d 562 (Fla. Dist. Ct. App. 1996).
5 Spectrum v. Bowling, 410 F.3d 304 (6th Cir. 2005).
6 Olszewski v. Scripps Health, 135 Cal. Rptr. 2d 1 (Cal. 2003).
7 68 Fed. Reg. 43940 (July 25, 2003).
8 42 C.F.R. 411.54(c)(2).
9 Rybicki v. Hartley, 782 F.2d 260 (1st Cir. 1986).
Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
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4. WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
General Practice, Solo and Small Firm Division:
Elder Law Committee and the
Who We Are
The ESTATE PLANNING, PROBATE & TRUST COMMITTEE focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations. We work with the Elder Law Committee to schedule programs at the ABA Annual meeting.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Lawwww.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
Sunday, November 25, 2007
ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA General Practice, Solo and Small Firm Division American Bar Association
Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ
In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
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1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.
Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.
The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.
In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]
The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)
In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).
Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.
In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.
Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.
The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test. Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.
The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.
Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.
The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.
However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.
In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).
The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.
Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has
appeared in Courts throughout New Jersey several times each week on personal injury matters, Municipal Court trials, and contested Probate hearings.
2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com
ABA General Practice, Solo and Small Firm Division American Bar Association
Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ
In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
____________________________________________________
1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.
Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.
The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.
In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]
The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)
In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).
Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.
In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.
Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.
The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test. Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.
The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.
Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.
The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.
However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.
In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).
The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.
Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has
appeared in Courts throughout New Jersey several times each week on personal injury matters, Municipal Court trials, and contested Probate hearings.
2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com
Wednesday, July 11, 2007
Kenneth Vercammen's NJ Laws Email Newsletter E249
Kenneth Vercammen's NJ Laws Email Newsletter E249
____________________________
In This Issue
1. Friends of Cynthia Vercammen are invited her 50th party Saturday July 28 7pm
2. Hearsay rule does not apply to Breathalyzer certification
3. Prior refusal to take Breathalyzer counts for enhanced penalty.
4. Alibi notice requirement may violate 5th Amendment.
5. Upcoming Charity races
6. New DWI testing machine faces Additional questions by the Court.
____________________________
1. Friends of Cynthia Vercammen are invited her 50th party
Saturday, July 28 - 7pm
D.J. , karaoke, 8 person Hot tub plus Deck and Tiki Bar. 2 Fooz ball tables, ping pong, arcade basketball.
Cynthia's 50th Birthday Party Join the Fun Bunch
LOCATION: South Brunswick NJ at 16 Ireland Brook Dr. near Farrington Lake, off Route 130 and Rt. 522)
Directions: Visit our website at www.njlaws.com or call and we will fax directions
Kenneth Vercammen, Esq. at (732) 572-0500 (Law office) or 732-940-8962 (evening)
Yes, We will be attending the party - fax back to Law Office Fax: (732) 572-0030
Name: _____________________________
E-mail: ____________________________
____________________________
2. Hearsay rule does not apply to breathalyzer certification. State v. Dorman 393 N.J. Super. 28 (App. Div. 2007)
In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).
____________________________
3. Prior refusal to take breathalyzer counts for enhanced penalty. State v. Breslin __ N.J. Super. __ A-6074-05T3 5/9/07
Defendant appealed from a judgment convicting him of refusal to submit a breath sample, N.J.S.A. 39:4-50.2, and the imposition of a two-year suspension of his driving privileges as a second offender, N.J.S.A. 39:4-50.4a. Defendant argued that he should not be considered a second offender under N.J.S.A. 39:4-50.4a because his prior conviction for refusal to submit a breath sample was obtained when the burden of proof required for such a conviction was the preponderance of the evidence standard.
As to defendant's contention that he should not be considered a second offender under N.J.S.A. 39:4-50.4a, the court held that there is no just reason to nullify a prior refusal conviction based upon a lesser burden of proof from being considered in determining a defendant's second-offender status under N.J.S.A. 39:4-50.4a after a second conviction for the same refusal offense based upon the criminal standard of proof.
____________________________
4. Alibi notice requirement may violate 5th Amendment. State v. Bradshaw 392 N.J. Super. 425 (App. Div. 2007)
The court held that application of the notice of alibi rule, R. 3:12-2, to bar a defendant's own testimony as to his whereabouts at the time of a crime, because of his failure to comply with the Rule, unconstitutionally infringes on defendant's state and federal right to testify, a right emanating from the due process and compulsory process guarantees. The court disagreed with contrary rulings in State v. Francis, 128 N.J. Super. 346 (App. Div. 1974) and State v. Gonzalez, 223 N.J. Super. 377 (App. Div.), certif. denied, 111 N.J. 589 (1988).
____________________________
5. Upcoming Charity races:
7/14/07 Belmar Five Mile Run 5 mile, 8:30am Belmar NJ 732-571-2162 free food at Bar A after race and reduced price drinks. Play Volleyball at Bar A.
7/22/2007 Jersey State Triathlon USAT Sanctioned Mercer County Park
7/28/07 Ocean Grove Biathlon 2M run, 300 yd swim Ocean Grove fast short event. spend the rest of the day at the beach.
7/24/07 RVRR Summer 5k & kids races in New Brunswick. NEW FOR 2007!Due to continued construction at Donaldson Park (our home for 23 years, RVRR moved the races across the river. The races will begin at the south-center of the Buccleuch
Park near the Senior Center (on Huntington Street), and will be 2 loops of 2.5K each. There will be only one major hill each lap, but the course is accurately measured, and we'll have the usual traffic control, water at the finish line, and awards presented within 30 minutes of the finish.NEW LOCATION!! Buccleuch Park, New Brunswick NJ (Easton Avenue across from St. Peters Hospital http://www.rvrr.org/
7/29/2007 The Staten Island Flat as a PANCAKE Sprint TRI & LUMPY PANCAKE Olympic Distance Tri 1/4 mile swim or 2 mile run, 12 mile bike, 5k run or .93 swim, 24 mile bike, 10k run, 10am Staten Island NY 732-841-2558
7/29/2007 Long Branch Sprint Triathlon Series-2 .5k swim, 9.5 mile bike, 3 mile run 6:45am Long Branch NJ 732-614-6028
8/4/07 Neptune City Day 5k, 8:00 Neptune City
8/5/07 Sea Girt 5K 8:30am Sea Girt
8/11/07 San Francisco Bay 5k
8/18/07 Bradley Beach 5k Bradley Beach
8/25/2007 Saturday Tri/Du the Wildwoods 1/4 mile swim, 11 mile bike, 3.1 mile run or 2 mile run, 11 mile bike, 3.1 mile run , 7:30am North Wildwood NJ 609-374-6495
More events at http://www.njlaws.com/calendar_of_community_events.htm
____________________________
6. New DWI testing machine faces additional questions by the Court.
For over the past several years, the courts have been faced with the question of whether the new DWI Alcotest 7110 breath testing machine is reliable. The NJ Supreme Court has directed further hearings into this new machine. The following is the State v CHUN TIMETABLE
IF NO TESTIMONIAL HEARINGS OF EXPERTS:
5/22/07 Amended Remand Orde
5/30/07 Source Codes due to respective software houses
(7 days from May 23)
8/28/07 Software Houses' reports due to Special Master
(90 days from receipt of source codes 5/31/07)
9/11/07 Special Master's report due to Supreme Court
(14 days from receipt of experts' reports)
IF TESTIMONIAL HEARINGS ARE HELD:
5/22/07 Amended Remand Order
5/30/07 Source Codes due to respective software houses
(7 days from May 23)
8/28/07 Software Houses' reports due to Special Master
(90 days from receipt of source codes 5/31/07)
10/12/07 Testimonial hearings to be completed
(45 days of receipt of experts' report)
10/26/07 Special Master's report due to Supreme Court
(14 days from conclusion of hearings)
After over two years of litigation in State v. Chun, approximately 21,000 pages of documents have been disclosed, a 41 day hearing has been held before Judge King spanning 8,500 pages of transcripts, Judge King issued a 268 page opinion, and the case has been briefed and argued before the Supreme Court. Ultimately, the Supreme Court ordered Dräger, the Alcotest manufacturer, to provide the software (source code) employed in the Alcotest, so that a defense selected software house can evaluate the source code to identify possible errors.
This was a hard fought battle for the defense attorneys. The defense attorneys have collectively expended in excess of six thousand uncompensated billing hours. They also have collectively spent in excess of $50,000 for experts, transcripts, brief printing, etc.
The Defense has retained a software expert, at its own expense, who tells them that based on industry averages and his vast experience, an analysis of the source code by a software house will likely produce numerous programming errors as well as the reasonable possibility that the readings may not be accurate for various programming shortcuts used in analyzing the breath samples.
Even Microsoft routinely sends out patches for its programs as it recognizes glitches in the programs. The Alcotest is produced by a small breath testing company that admitted during the hearing that it uses the same type of microprocessor chip that was used more than 15 years ago in video games.
The volunteer defense attorneys have requested that other defense Attorneys and anyone interested in the making sure this new machine is accurately tested to please contribute to the cost of the source code review and ask your affected clients to do the same. Such contributions will be used solely to fund the source code evaluation, and will not be used for any costs that have been already incurred. Municipal Court Attorneys and individuals interested in the "Innocent until proven Guilty" constitutional guarantee may be interested in making a small contribution. Please make any checks payable to the defense selected software house, "Base One Technologies", and please send them to:
SAMUEL LOUIS SACHS
Princeton Windsor Office Park
379 Princeton-Hightstown Road
P.O. Box 968
East Windsor, NJ 08520
(609) 448-2700
Fax: (609) 448-8883
If you would like to learn more about Base One, please visit their website at www.base-one.com.
____________________________
Thank you for reading our newsletter! God Bless America USA #1
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Vercammen NJLaw Blog-http://njlaws1.blogspot.com/
NJ Criminal Law Blog - http://njcriminallaw.blogspot.com/
NJ Traffic Law & Municipal Court Blog - http://traffic-law.blogspot.com/
NJ Personal Injury & Civil Law Blog- http://njlawspersonalinjury.blogspot.com/
NJ Elder Law Blog -http://elder-law.blogspot.com/
NJ Drug Law Blog - http://drugarrest.blogspot.com/
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
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____________________________
Editor's Note and Disclaimer:
All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
____________________________
In This Issue
1. Friends of Cynthia Vercammen are invited her 50th party Saturday July 28 7pm
2. Hearsay rule does not apply to Breathalyzer certification
3. Prior refusal to take Breathalyzer counts for enhanced penalty.
4. Alibi notice requirement may violate 5th Amendment.
5. Upcoming Charity races
6. New DWI testing machine faces Additional questions by the Court.
____________________________
1. Friends of Cynthia Vercammen are invited her 50th party
Saturday, July 28 - 7pm
D.J. , karaoke, 8 person Hot tub plus Deck and Tiki Bar. 2 Fooz ball tables, ping pong, arcade basketball.
Cynthia's 50th Birthday Party Join the Fun Bunch
LOCATION: South Brunswick NJ at 16 Ireland Brook Dr. near Farrington Lake, off Route 130 and Rt. 522)
Directions: Visit our website at www.njlaws.com or call and we will fax directions
Kenneth Vercammen, Esq. at (732) 572-0500 (Law office) or 732-940-8962 (evening)
Yes, We will be attending the party - fax back to Law Office Fax: (732) 572-0030
Name: _____________________________
E-mail: ____________________________
____________________________
2. Hearsay rule does not apply to breathalyzer certification. State v. Dorman 393 N.J. Super. 28 (App. Div. 2007)
In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).
____________________________
3. Prior refusal to take breathalyzer counts for enhanced penalty. State v. Breslin __ N.J. Super. __ A-6074-05T3 5/9/07
Defendant appealed from a judgment convicting him of refusal to submit a breath sample, N.J.S.A. 39:4-50.2, and the imposition of a two-year suspension of his driving privileges as a second offender, N.J.S.A. 39:4-50.4a. Defendant argued that he should not be considered a second offender under N.J.S.A. 39:4-50.4a because his prior conviction for refusal to submit a breath sample was obtained when the burden of proof required for such a conviction was the preponderance of the evidence standard.
As to defendant's contention that he should not be considered a second offender under N.J.S.A. 39:4-50.4a, the court held that there is no just reason to nullify a prior refusal conviction based upon a lesser burden of proof from being considered in determining a defendant's second-offender status under N.J.S.A. 39:4-50.4a after a second conviction for the same refusal offense based upon the criminal standard of proof.
____________________________
4. Alibi notice requirement may violate 5th Amendment. State v. Bradshaw 392 N.J. Super. 425 (App. Div. 2007)
The court held that application of the notice of alibi rule, R. 3:12-2, to bar a defendant's own testimony as to his whereabouts at the time of a crime, because of his failure to comply with the Rule, unconstitutionally infringes on defendant's state and federal right to testify, a right emanating from the due process and compulsory process guarantees. The court disagreed with contrary rulings in State v. Francis, 128 N.J. Super. 346 (App. Div. 1974) and State v. Gonzalez, 223 N.J. Super. 377 (App. Div.), certif. denied, 111 N.J. 589 (1988).
____________________________
5. Upcoming Charity races:
7/14/07 Belmar Five Mile Run 5 mile, 8:30am Belmar NJ 732-571-2162 free food at Bar A after race and reduced price drinks. Play Volleyball at Bar A.
7/22/2007 Jersey State Triathlon USAT Sanctioned Mercer County Park
7/28/07 Ocean Grove Biathlon 2M run, 300 yd swim Ocean Grove fast short event. spend the rest of the day at the beach.
7/24/07 RVRR Summer 5k & kids races in New Brunswick. NEW FOR 2007!Due to continued construction at Donaldson Park (our home for 23 years, RVRR moved the races across the river. The races will begin at the south-center of the Buccleuch
Park near the Senior Center (on Huntington Street), and will be 2 loops of 2.5K each. There will be only one major hill each lap, but the course is accurately measured, and we'll have the usual traffic control, water at the finish line, and awards presented within 30 minutes of the finish.NEW LOCATION!! Buccleuch Park, New Brunswick NJ (Easton Avenue across from St. Peters Hospital http://www.rvrr.org/
7/29/2007 The Staten Island Flat as a PANCAKE Sprint TRI & LUMPY PANCAKE Olympic Distance Tri 1/4 mile swim or 2 mile run, 12 mile bike, 5k run or .93 swim, 24 mile bike, 10k run, 10am Staten Island NY 732-841-2558
7/29/2007 Long Branch Sprint Triathlon Series-2 .5k swim, 9.5 mile bike, 3 mile run 6:45am Long Branch NJ 732-614-6028
8/4/07 Neptune City Day 5k, 8:00 Neptune City
8/5/07 Sea Girt 5K 8:30am Sea Girt
8/11/07 San Francisco Bay 5k
8/18/07 Bradley Beach 5k Bradley Beach
8/25/2007 Saturday Tri/Du the Wildwoods 1/4 mile swim, 11 mile bike, 3.1 mile run or 2 mile run, 11 mile bike, 3.1 mile run , 7:30am North Wildwood NJ 609-374-6495
More events at http://www.njlaws.com/calendar_of_community_events.htm
____________________________
6. New DWI testing machine faces additional questions by the Court.
For over the past several years, the courts have been faced with the question of whether the new DWI Alcotest 7110 breath testing machine is reliable. The NJ Supreme Court has directed further hearings into this new machine. The following is the State v CHUN TIMETABLE
IF NO TESTIMONIAL HEARINGS OF EXPERTS:
5/22/07 Amended Remand Orde
5/30/07 Source Codes due to respective software houses
(7 days from May 23)
8/28/07 Software Houses' reports due to Special Master
(90 days from receipt of source codes 5/31/07)
9/11/07 Special Master's report due to Supreme Court
(14 days from receipt of experts' reports)
IF TESTIMONIAL HEARINGS ARE HELD:
5/22/07 Amended Remand Order
5/30/07 Source Codes due to respective software houses
(7 days from May 23)
8/28/07 Software Houses' reports due to Special Master
(90 days from receipt of source codes 5/31/07)
10/12/07 Testimonial hearings to be completed
(45 days of receipt of experts' report)
10/26/07 Special Master's report due to Supreme Court
(14 days from conclusion of hearings)
After over two years of litigation in State v. Chun, approximately 21,000 pages of documents have been disclosed, a 41 day hearing has been held before Judge King spanning 8,500 pages of transcripts, Judge King issued a 268 page opinion, and the case has been briefed and argued before the Supreme Court. Ultimately, the Supreme Court ordered Dräger, the Alcotest manufacturer, to provide the software (source code) employed in the Alcotest, so that a defense selected software house can evaluate the source code to identify possible errors.
This was a hard fought battle for the defense attorneys. The defense attorneys have collectively expended in excess of six thousand uncompensated billing hours. They also have collectively spent in excess of $50,000 for experts, transcripts, brief printing, etc.
The Defense has retained a software expert, at its own expense, who tells them that based on industry averages and his vast experience, an analysis of the source code by a software house will likely produce numerous programming errors as well as the reasonable possibility that the readings may not be accurate for various programming shortcuts used in analyzing the breath samples.
Even Microsoft routinely sends out patches for its programs as it recognizes glitches in the programs. The Alcotest is produced by a small breath testing company that admitted during the hearing that it uses the same type of microprocessor chip that was used more than 15 years ago in video games.
The volunteer defense attorneys have requested that other defense Attorneys and anyone interested in the making sure this new machine is accurately tested to please contribute to the cost of the source code review and ask your affected clients to do the same. Such contributions will be used solely to fund the source code evaluation, and will not be used for any costs that have been already incurred. Municipal Court Attorneys and individuals interested in the "Innocent until proven Guilty" constitutional guarantee may be interested in making a small contribution. Please make any checks payable to the defense selected software house, "Base One Technologies", and please send them to:
SAMUEL LOUIS SACHS
Princeton Windsor Office Park
379 Princeton-Hightstown Road
P.O. Box 968
East Windsor, NJ 08520
(609) 448-2700
Fax: (609) 448-8883
If you would like to learn more about Base One, please visit their website at www.base-one.com.
____________________________
Thank you for reading our newsletter! God Bless America USA #1
Our law blogs:
Vercammen NJLaw Blog-http://njlaws1.blogspot.com/
NJ Criminal Law Blog - http://njcriminallaw.blogspot.com/
NJ Traffic Law & Municipal Court Blog - http://traffic-law.blogspot.com/
NJ Personal Injury & Civil Law Blog- http://njlawspersonalinjury.blogspot.com/
NJ Elder Law Blog -http://elder-law.blogspot.com/
NJ Drug Law Blog - http://drugarrest.blogspot.com/
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
____________________________
Editor's Note and Disclaimer:
All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Kenneth Vercammen's NJ Laws Email Newsletter E248
Kenneth Vercammen's NJ Laws Email Newsletter E248
____________________________
In This Issue
1. Preparing the Living Will is only the First Step
2. US Supreme Court Rules passengers in cars have search rights
3. Charity Running Races (Pine Beach - USTAF - Championship June 24)
____________________________
1. Preparing the Living Will is Only the First Step (By Christopher D. Reedy, Esquire of Begley & Bookbinder)
At the end of 2004 and the beginning of 2005, you could hardly open a newspaper, or watch the nightly news and not be confronted with the case of Terri Schiavo. In 1990, after collapsing in her home, Terri suffered brain damage and became dependant on a feeding tube. The legal battle to determine the fate of Terri lasted over seven years and involved both state and federal courts, as well as state and federal legislation. At issue amongst all of the legal battles was whether or not to continue the use of the feeding tube. Her husband stated that she had told him that she did not wish to be kept on life support with no hope of recovery. Terri's parents did not agree with this and this led to a trial where a judge was responsible for determining what Terri would have wanted to do. After 15 years of being institutionalized and being diagnosed with a persistent vegetative state, the battle to determine the fate of Terry was finally settled when her feeding tube was removed and she passed away on March 31, 2005. The Schiavo case brought national attention to the necessity of having a living will. Had Terri had a living will, her wishes would have been known and could have been followed without court intervention.
Because of the attention brought by the Schiavo case, more people are preparing living wills, so that there end of life decisions can be followed. However, too often people return from their attorney's office, with their newly created living will and stick it in a safe or a safety deposit box, without talking to anyone in their family about their decisions. It is definitely important to have a living will prepared for you that expresses your wishes, but the preparing of the living will should only be the starting point. After you have prepared your living will, you should sit down with your family and discuss what the document says and explain exactly what your wishes are. That way, your family will know what decisions you have made and can ensure that they are followed. The importance of discussing your decisions with your family can not be understated. You could very easily be presented with a situation where the hospital has misinterpreted one of the clauses of the living will, and is not following through with what your wishes are. If your family knows what your wishes are, they will be able to ensure that they are followed.
Discussing your decision with your family may also prevent fights later on. Without discussing your decision, you could have two different family members who believe they know what your intentions really are. This could lead to fights or resentment if your health care representative has to make a decision that one of the family members disagrees with. It is important to talk to all members of your family and not just your health care representative. By discussing your decision ahead of time, you can make sure that the entire family is on the same page and hopefully prevent disagreements in the future.
Discussing your decision will also help to prevent guilt on the part of your health care representative. Oftentimes, when a health care representative has to make a decision, they feel uncomfortable making the decision, or later feel guilty about the decision they made. By discussing this before hand, you can ensure that they understand that all you are asking them to do is carry out your wishes. You are not asking them to make a decision, just to ensure that the decision that you have already made gets carried out. Discussing it beforehand can make the health care representative's job easier at a very stressful time.
Our office would recommend to all of our clients who took their living will home and put them in a desk drawer without discussing the contents of it with their family, to schedule a family meeting and go over the document. Not only may it prevent fights down the road between family members, but it will also make sure that your decision is carried out and you will not have to end up in a lengthy legal battle like Terri Schiavo's family.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
____________________________
2. US Supreme Court Rules passengers in cars have search rights
Brendlin v. California No. 06-8120 Decided June 18, 2007
Police officers stopped a car to check its registration without reason to believe it was being operated unlawfully. One of the officers recognized petitioner Brendlin, a passenger in the car. The police verified that Brendlin was a parole violator and officers arrested Brendlin and searched him, the driver and the car finding methamphetamine paraphernalia. Brendlin was charged with possessing and manufacturing meth and moved to suppress the evidence obtained from the search of his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to stop the car which made the seizure of his person unconstitutional. The unanimous opinion recognized that passengers in vehicles stopped by the police are covered by the fourth amendment and may challenge the legality of the stop if arrested.
Held: when the police make a traffic stop, a passenger in the car, like the driver, is seized for fourth amendment purposes and so may challenge the stop's constitutionality.
____________________________
3. Charity Running Races
June 24 - Pine Beach 5k & One Mile Riverside Run - 9am - 1 mile - 8:15am - Pine Beach, NJ (732 505 9554), http://www.pinebeach5k.com/
The 2007 event is the ninth annual race on this fast, scenic, USATF certified 3.1 mile course along the Toms River and through the quiet streets of Pine Beach.
All roads will be closed to traffic. There will be two water stops, and clocks at miles 1 and 2. Strollers and baby joggers are welcome.
After the race, there will be an awards ceremony on the Vista Park field. Cash awards ($150, $125, $100) will be given to the top three male and female runners, with a $100 bonus award for setting a new course record. A $75 award for the top male and female master runner. Additional age group awards will be given out along with other special awards. Check the awards page for a breakdown of all awards and categories.
Again this year will be the Team Challenge. Awards will be given to the first team in each category: male, female, and mixed. Teams will consist of three runners. Each team member must complete and sign a race application.
This race is now a USATF New Jersey Championship event for USATF Members. USATF Members will receive 700 points as well as a reduced pre-registration fee.
The Outback Steakhouse, Bricktown, will provide a post race BBQ for all race participants.
June 30- Frog Hollow 5k- Free food, use swim club for entire day
____________________________
The Kenneth Vercammen NJ Laws newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
____________________________
Editor's Note and Disclaimer:
All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
____________________________
In This Issue
1. Preparing the Living Will is only the First Step
2. US Supreme Court Rules passengers in cars have search rights
3. Charity Running Races (Pine Beach - USTAF - Championship June 24)
____________________________
1. Preparing the Living Will is Only the First Step (By Christopher D. Reedy, Esquire of Begley & Bookbinder)
At the end of 2004 and the beginning of 2005, you could hardly open a newspaper, or watch the nightly news and not be confronted with the case of Terri Schiavo. In 1990, after collapsing in her home, Terri suffered brain damage and became dependant on a feeding tube. The legal battle to determine the fate of Terri lasted over seven years and involved both state and federal courts, as well as state and federal legislation. At issue amongst all of the legal battles was whether or not to continue the use of the feeding tube. Her husband stated that she had told him that she did not wish to be kept on life support with no hope of recovery. Terri's parents did not agree with this and this led to a trial where a judge was responsible for determining what Terri would have wanted to do. After 15 years of being institutionalized and being diagnosed with a persistent vegetative state, the battle to determine the fate of Terry was finally settled when her feeding tube was removed and she passed away on March 31, 2005. The Schiavo case brought national attention to the necessity of having a living will. Had Terri had a living will, her wishes would have been known and could have been followed without court intervention.
Because of the attention brought by the Schiavo case, more people are preparing living wills, so that there end of life decisions can be followed. However, too often people return from their attorney's office, with their newly created living will and stick it in a safe or a safety deposit box, without talking to anyone in their family about their decisions. It is definitely important to have a living will prepared for you that expresses your wishes, but the preparing of the living will should only be the starting point. After you have prepared your living will, you should sit down with your family and discuss what the document says and explain exactly what your wishes are. That way, your family will know what decisions you have made and can ensure that they are followed. The importance of discussing your decisions with your family can not be understated. You could very easily be presented with a situation where the hospital has misinterpreted one of the clauses of the living will, and is not following through with what your wishes are. If your family knows what your wishes are, they will be able to ensure that they are followed.
Discussing your decision with your family may also prevent fights later on. Without discussing your decision, you could have two different family members who believe they know what your intentions really are. This could lead to fights or resentment if your health care representative has to make a decision that one of the family members disagrees with. It is important to talk to all members of your family and not just your health care representative. By discussing your decision ahead of time, you can make sure that the entire family is on the same page and hopefully prevent disagreements in the future.
Discussing your decision will also help to prevent guilt on the part of your health care representative. Oftentimes, when a health care representative has to make a decision, they feel uncomfortable making the decision, or later feel guilty about the decision they made. By discussing this before hand, you can ensure that they understand that all you are asking them to do is carry out your wishes. You are not asking them to make a decision, just to ensure that the decision that you have already made gets carried out. Discussing it beforehand can make the health care representative's job easier at a very stressful time.
Our office would recommend to all of our clients who took their living will home and put them in a desk drawer without discussing the contents of it with their family, to schedule a family meeting and go over the document. Not only may it prevent fights down the road between family members, but it will also make sure that your decision is carried out and you will not have to end up in a lengthy legal battle like Terri Schiavo's family.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
____________________________
2. US Supreme Court Rules passengers in cars have search rights
Brendlin v. California No. 06-8120 Decided June 18, 2007
Police officers stopped a car to check its registration without reason to believe it was being operated unlawfully. One of the officers recognized petitioner Brendlin, a passenger in the car. The police verified that Brendlin was a parole violator and officers arrested Brendlin and searched him, the driver and the car finding methamphetamine paraphernalia. Brendlin was charged with possessing and manufacturing meth and moved to suppress the evidence obtained from the search of his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to stop the car which made the seizure of his person unconstitutional. The unanimous opinion recognized that passengers in vehicles stopped by the police are covered by the fourth amendment and may challenge the legality of the stop if arrested.
Held: when the police make a traffic stop, a passenger in the car, like the driver, is seized for fourth amendment purposes and so may challenge the stop's constitutionality.
____________________________
3. Charity Running Races
June 24 - Pine Beach 5k & One Mile Riverside Run - 9am - 1 mile - 8:15am - Pine Beach, NJ (732 505 9554), http://www.pinebeach5k.com/
The 2007 event is the ninth annual race on this fast, scenic, USATF certified 3.1 mile course along the Toms River and through the quiet streets of Pine Beach.
All roads will be closed to traffic. There will be two water stops, and clocks at miles 1 and 2. Strollers and baby joggers are welcome.
After the race, there will be an awards ceremony on the Vista Park field. Cash awards ($150, $125, $100) will be given to the top three male and female runners, with a $100 bonus award for setting a new course record. A $75 award for the top male and female master runner. Additional age group awards will be given out along with other special awards. Check the awards page for a breakdown of all awards and categories.
Again this year will be the Team Challenge. Awards will be given to the first team in each category: male, female, and mixed. Teams will consist of three runners. Each team member must complete and sign a race application.
This race is now a USATF New Jersey Championship event for USATF Members. USATF Members will receive 700 points as well as a reduced pre-registration fee.
The Outback Steakhouse, Bricktown, will provide a post race BBQ for all race participants.
June 30- Frog Hollow 5k- Free food, use swim club for entire day
____________________________
The Kenneth Vercammen NJ Laws newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
____________________________
Editor's Note and Disclaimer:
All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Kenneth Vercammen's NJ Laws Email Newsletter E247
Kenneth Vercammen's NJ Laws Email Newsletter E247
_______________
In This Issue
1. Upcoming events
2. Statute of Limitations in 1983 Civil Rights Suit Begins on Arrest.
3. No Legal Malpractice When Conviction Reversed.
4. DWI Stop Suppressed Where Police Did Not See Reasons to Believe Defendant Was Intoxicated.
_________________________
Greetings Kenneth Vercammen, We switched effective June 1, 2007 to an improved newsletter email service. We have been informed some your email addresses may be lost in the transfer process. Therefore, if you don't receive your next newsletter by June 15, please send us an email to advise us. Thank You. To unsubscribe, follow Constant Contact's button at the bottom.
_________________________
1. Upcoming events
June 11
ICLE Mun Ct - Handling Cases in the Busiest Courts MayFair Farm, West Orange. Call (732) 249-5100
_________________________
2. Statute of Limitations in 1983 Civil Rights Suit Begins on Arrest.
Wallace v. Kato U.S. Supreme Court (Decided February 21, 2007) 05-1240.
The statute of limitations on a 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process. Source: 187 N.J.L.J. 783. This case limits Civil Rights Suits.
_________________________
3. No Legal Malpractice When Conviction Reversed.
Newton v. Office of Essex County Public Defender (Appellate Division Decided February 20, 2007) 04-2-6533. Unpublished.
The Law Division judge properly dismissed plaintiff's legal-malpractice complaint, rejecting his argument that he was inadequately represented by counsel in his criminal proceedings, leading to an allegedly defective plea and an improper sentence. Inter alia, the judge justifiably relied on Alampi v. Russo, which denied recovery in a legal-malpractice case arising out of a guilty plea that was not vacated or reversed in the criminal appellate process. Source: 187 N.J.L.J. 785
_________________________
4. DWI Stop Suppressed Where Police Did Not See Reasons to Believe Defendant Was Intoxicated.
State v. Stongvila (Appellate Division Decided January 30, 2007) A-3582-04T3. Not Approved For Publication.
Conviction after a trial de novo of refusing to submit to a Breathalyzer test in violation of N.J.S.A. 39:4-50.2 reversed; a police officer was working undercover outside a liquor store; a liquor store employee told the officer that the defendant seemed to be intoxicated and was rude, loud, and boisterous while he was in the store; the officer saw the defendant leave the store, walk to his car, and drive away but did not see anything that indicated that the defendant was intoxicated; nonetheless, the officer asked his dispatcher to have a patrol car follow the defendant, and another officer stopped the defendant based solely on the dispatcher's report of a possible intoxicated driver; the State's evidence was insufficient to support the reasonable suspicion required to justify an investigatory stop, and the stop was illegal; furthermore, there was no probable cause for the request to submit to a Breathalyzer test because the request was based on evidence that was obtained after the illegal stop and that would have been suppressed if the State had proceeded on a charge of driving while intoxicated. Source: Facts-on-Call Order No. 20866
_________________________
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
_________________________
Editor's Note and Disclaimer:
All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
_________________________
_______________
In This Issue
1. Upcoming events
2. Statute of Limitations in 1983 Civil Rights Suit Begins on Arrest.
3. No Legal Malpractice When Conviction Reversed.
4. DWI Stop Suppressed Where Police Did Not See Reasons to Believe Defendant Was Intoxicated.
_________________________
Greetings Kenneth Vercammen, We switched effective June 1, 2007 to an improved newsletter email service. We have been informed some your email addresses may be lost in the transfer process. Therefore, if you don't receive your next newsletter by June 15, please send us an email to advise us. Thank You. To unsubscribe, follow Constant Contact's button at the bottom.
_________________________
1. Upcoming events
June 11
ICLE Mun Ct - Handling Cases in the Busiest Courts MayFair Farm, West Orange. Call (732) 249-5100
_________________________
2. Statute of Limitations in 1983 Civil Rights Suit Begins on Arrest.
Wallace v. Kato U.S. Supreme Court (Decided February 21, 2007) 05-1240.
The statute of limitations on a 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process. Source: 187 N.J.L.J. 783. This case limits Civil Rights Suits.
_________________________
3. No Legal Malpractice When Conviction Reversed.
Newton v. Office of Essex County Public Defender (Appellate Division Decided February 20, 2007) 04-2-6533. Unpublished.
The Law Division judge properly dismissed plaintiff's legal-malpractice complaint, rejecting his argument that he was inadequately represented by counsel in his criminal proceedings, leading to an allegedly defective plea and an improper sentence. Inter alia, the judge justifiably relied on Alampi v. Russo, which denied recovery in a legal-malpractice case arising out of a guilty plea that was not vacated or reversed in the criminal appellate process. Source: 187 N.J.L.J. 785
_________________________
4. DWI Stop Suppressed Where Police Did Not See Reasons to Believe Defendant Was Intoxicated.
State v. Stongvila (Appellate Division Decided January 30, 2007) A-3582-04T3. Not Approved For Publication.
Conviction after a trial de novo of refusing to submit to a Breathalyzer test in violation of N.J.S.A. 39:4-50.2 reversed; a police officer was working undercover outside a liquor store; a liquor store employee told the officer that the defendant seemed to be intoxicated and was rude, loud, and boisterous while he was in the store; the officer saw the defendant leave the store, walk to his car, and drive away but did not see anything that indicated that the defendant was intoxicated; nonetheless, the officer asked his dispatcher to have a patrol car follow the defendant, and another officer stopped the defendant based solely on the dispatcher's report of a possible intoxicated driver; the State's evidence was insufficient to support the reasonable suspicion required to justify an investigatory stop, and the stop was illegal; furthermore, there was no probable cause for the request to submit to a Breathalyzer test because the request was based on evidence that was obtained after the illegal stop and that would have been suppressed if the State had proceeded on a charge of driving while intoxicated. Source: Facts-on-Call Order No. 20866
_________________________
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
_________________________
Editor's Note and Disclaimer:
All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
_________________________
Tuesday, June 19, 2007
NJ Laws E245 1. Friday, May 25- The Legends of Belmar Volleyball 2. DNA Testing of Criminals Does Not Violate Constitution 3 DNA Testing of JuvenileOK
Kenneth Vercammen's NJ Laws email newsletter E245 May 18, 2007
In this issue:
1. Friday, May 25- The Legends of Belmar Volleyball
2. DNA Testing of Criminals Does Not Violate Constitution
3 DNA Testing of Juvenile Criminals Constitutional
4. Receipt of Nine Checks Not a Criminal Enterprise to Deny PTI
5. Fire Investigators Can Remain on Scene and Seize Items in Plain View
1. Friday, May 25- The Legends of Belmar Volleyball- Join the Greats of Belmar beach- Marty, John C. Billy Ball, Jim Watt, Ken Vercammen & others at D'Jay's, Bar A & other fun spots. Run the Spring Lake 5 at 8:30 am the next morning. Exciting start to Memorial Day and the Summer.
2. DNA Testing of Criminals Does Not Violate Constitution. State v. O'Hagen 189 NJ 140 (2007).
The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1- 20.17-20.28, as amended, does not violate the rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Paragraphs 1 and 7 of the New Jersey Constitution.
3 DNA Testing of Juvenile Criminals Constitutional. A.A. v. Attorney General of New Jersey 189 NJ 129 (2007).
DNA test results lawfully obtained pursuant to the New Jersey DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17- 20.28, as amended, may be used to solve crimes committed prior to the taking of the DNA test.
4. Receipt of Nine Checks Not a Criminal Enterprise to Deny PTI. State v. Watkins 390 NJ Super. 302 (App. Div. 2007).
In this appeal from a denial of defendant's appeal of his rejection from pre-trial intervention (PTI), The court addressed the meaning of PTI Guideline 3(i)(2), which directs consideration of whether the crime was "part of a continuing criminal business or enterprise". Reviewing the prior cases that have addressed this Guideline, The court concludes that the Prosecutor and the reviewing judge erroneously applied Guideline 3(i)(2) to the facts of this case which involved improper receipt of unemployment checks over a four-month period. Defendant's conduct did not possess the characteristics of a "business" or "enterprise" nor did it persist for a long enough period to be deemed "continuing," as that phrase has been applied in earlier cases. As a result, The court remanded to the Prosecutor for reconsideration of defendant's application without consideration of Guideline 3(i)(2).
5. Fire Investigators Can Remain on Scene and Seize Items in Plain View. State v. Amodio 390 NJ Super 313 (App. Div. 2007).
In this matter, defendant was convicted of passion/provocation manslaughter, felony murder, arson and other offenses arising from the death of his girlfriend and her son in a fire at defendant's home. The court held that: 1) evidence obtained by the police and other officials in the fire-damaged home was properly seized without a warrant because the evidence was found during an investigation into the cause and origin of the fire, which was conducted within a reasonable time after the fire had been extinguished; and 2) the warrantless seizure of defendant's clothes was permissible because those garments had been removed from defendant in order to provide emergency medical assistance.
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
In this issue:
1. Friday, May 25- The Legends of Belmar Volleyball
2. DNA Testing of Criminals Does Not Violate Constitution
3 DNA Testing of Juvenile Criminals Constitutional
4. Receipt of Nine Checks Not a Criminal Enterprise to Deny PTI
5. Fire Investigators Can Remain on Scene and Seize Items in Plain View
1. Friday, May 25- The Legends of Belmar Volleyball- Join the Greats of Belmar beach- Marty, John C. Billy Ball, Jim Watt, Ken Vercammen & others at D'Jay's, Bar A & other fun spots. Run the Spring Lake 5 at 8:30 am the next morning. Exciting start to Memorial Day and the Summer.
2. DNA Testing of Criminals Does Not Violate Constitution. State v. O'Hagen 189 NJ 140 (2007).
The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1- 20.17-20.28, as amended, does not violate the rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Paragraphs 1 and 7 of the New Jersey Constitution.
3 DNA Testing of Juvenile Criminals Constitutional. A.A. v. Attorney General of New Jersey 189 NJ 129 (2007).
DNA test results lawfully obtained pursuant to the New Jersey DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17- 20.28, as amended, may be used to solve crimes committed prior to the taking of the DNA test.
4. Receipt of Nine Checks Not a Criminal Enterprise to Deny PTI. State v. Watkins 390 NJ Super. 302 (App. Div. 2007).
In this appeal from a denial of defendant's appeal of his rejection from pre-trial intervention (PTI), The court addressed the meaning of PTI Guideline 3(i)(2), which directs consideration of whether the crime was "part of a continuing criminal business or enterprise". Reviewing the prior cases that have addressed this Guideline, The court concludes that the Prosecutor and the reviewing judge erroneously applied Guideline 3(i)(2) to the facts of this case which involved improper receipt of unemployment checks over a four-month period. Defendant's conduct did not possess the characteristics of a "business" or "enterprise" nor did it persist for a long enough period to be deemed "continuing," as that phrase has been applied in earlier cases. As a result, The court remanded to the Prosecutor for reconsideration of defendant's application without consideration of Guideline 3(i)(2).
5. Fire Investigators Can Remain on Scene and Seize Items in Plain View. State v. Amodio 390 NJ Super 313 (App. Div. 2007).
In this matter, defendant was convicted of passion/provocation manslaughter, felony murder, arson and other offenses arising from the death of his girlfriend and her son in a fire at defendant's home. The court held that: 1) evidence obtained by the police and other officials in the fire-damaged home was properly seized without a warrant because the evidence was found during an investigation into the cause and origin of the fire, which was conducted within a reasonable time after the fire had been extinguished; and 2) the warrantless seizure of defendant's clothes was permissible because those garments had been removed from defendant in order to provide emergency medical assistance.
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
NJ Laws E243 1. Real Estate Sales 2. Yearly Insurance Review 3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable susp
Kenneth Vercammen's NJ Laws email newsletter E243
April 25, 2007
In this issue:
1. Real Estate Sales
2. Yearly Insurance Review
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion."
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level
1. Real Estate Sales
To better serve our Probate and Senior citizen clients, Kenneth Vercammen has taken and passed the NJ Real Estate Salesperson test. The examination consists of numerous questions taken over a 4 hour period. Mr. Vercammen is now also a licensed real estate agent, is affiliated with Century 21, John Anthony Agency on 1815 Oak Tree Rd., Edison, NJ. Century 21 is one of the largest real estate agencies in the country. http://www.century21johnanthony.com/
If you will be selling a house, please give Kenneth Vercammen a call. Do not pay a 6% commission, but also don't rely on a 2% agency that merely lists your home on the internet, then expects you to do all the work.
SELLERS INFORMATION SHEET
The sale of a home is probably the largest transaction a person will ever undertake. Careful consideration should be given to the technical difficulties involved in the transfer.
The Contract of Sale
A Contract of Sale is an agreement for the purchase and sale of real estate. This is the most important document in any real estate transaction because it establishes the respective rights and responsibilities of the purchaser and the seller.
Since the Contract of Sale is important and legally binding New Jersey requires a 3 day attorney review period on Contracts prepared by a realtor. Please read the contract before signing. If you have any questions, please ask your real estate agent. If there are any clauses you want added, such as the house sale "As is", make sure they are added to the Contract before signing.
The 3 day attorney review period is to protect the buyer and seller from being forever bound by a contract without them receiving the benefit of legal advice. You only have three days to have your attorney review the contract and make the appropriate changes. Remember that once a Contract is signed and in final form after 3 days, your rights and obligations are fixed concerning the transaction. Your attorney will no longer have the opportunity to structure the Contract to meet your objectives.
Read and Understand the Contract Before Signing your Contract of Sale
Perhaps the seller may want to retain possession of the property for some time in order to find new accommodations. You should make sure these clauses are included in the contract defining such rights prior to signing. Never sign a contract involving the sale or purchase of real estate until you have done the following:
1. read the entire contract
2. written down your questions and posed them to your realtor
3. made sure all your requested clauses are included, such as the house being sold "as is"
These are only a few matters usually covered in the contract. However, they illustrate the variety of terms and conditions to be considered when you enter into such a transaction.
FEE AGREEMENT BY THE SELLER'S ATTORNEY
The seller's attorney should provide the seller with a written Fee Agreement in accordance with the requirements of the Rules of Professional Conduct. Please do not be put off by the formality of this letter as it is for your protection as a consumer of legal services.
Legal fees for sales vary. We still charge a flat rate of $800 plus any costs for a simple real estate house sale where the realtor prepares the contract.
We anticipate the following will be performed by your attorney in a real estate sale:
1. Review and analyze the contract of sale during attorney review after both buyer and seller sign the contract.
2. Recommend revisions to contract if needed. However, the seller should never sign the contract if it is missing clauses or language needed by the seller.
3. Initial Office consultation if requested with client after contract is signed by both buyer and seller;
4. Request from the Seller back title, including a photocopy of the Deed, survey, title policy and mortgage payoff statement.
5. Preparation of fax letter of representation to buyer's attorney
6. Opening of file
7. Prepare Representation statement to client with request for Seller's Information Sheet
8. Review old Deed, survey
9. Forward Deed, survey, title policy to the purchaser's attorney, thus expediting the search and survey process.
10. Three (3) free calls with client
11. Three (3) telephone calls with buyers attorney and other individuals
12. Three (3) correspondence to and from buyers attorney and clients
13. Review home inspection report
14. Review other documents supplied by client and buyer's attorney;
15. Work with the purchaser's attorney in resolving possession and closing date.
16. Remind the seller to contact their mortgage company and equity loan to obtain a written payoff/ balance due on their mortgage.
17. Review Title Binder and Judgment Searches, if applicable
18. Review RESPA pre-closing, if applicable
19. Preparation of Deed, fax to buyer's attorney
20. Preparation of Affidavit of Title, fax to buyer's attorney
21. Cooperate with the purchaser's attorney in preparing the final closing statement.
22. Review the Respa, which is the Federal Real Estate Settlement Procedure Statement/ Amounts paid and to be received
23. Represent you at the closing.
24. Attend closing, execute Deed, execute Affidavit of Title
25. Assist in Preparation of 1099 tax form
26. Offer sound legal advice to client;
27. Preparation of End of Case Letter and client questionnaire.
28. Make available to client in office upon request free client case folder, Real Estate brochure, Website brochure, and other information brochures on Wills and Power of Attorney;
29. Free Brochures provided on other legal topics such as Car Insurance Rights, Worker's Comp,
30. Free subscription to monthly e-mail newsletter. Provide your email address.
31. 3 free telephone calls during the 2 years after the closing on Probate, Wills and non real estate matters.
32. Invitation to client community events.
33. Free Magnet, Keychain, Pen upon request in the office
Costs are items such as filing and recording fees, Certified or Express postage and other out of pocket expenses.
This fee does not include costs or legal fees if there are judgments against the property, probate issues, defects in title or other work requested to be performed. If this closing does not take place, you will only be responsible for the legal fees and costs incurred.
Work with your Realtor
Your realtor is a highly trained licensed professional. Their goal is to help you through this closing. They perform substantial work and earn the commissions of between $8,000- $16,000. In order to keep your legal fees down, you should be calling you realtor with routine questions regarding the closing. We have learned by past experience if you, your realtor or you family call your attorney's office every day, these calls are not included in the $800 fee, and there will be a charge for excess calls. The buyer is entitled to obtain a termite inspection and home inspection. Inspections are scheduled by the realtors. If the buyer requests repairs after the home inspection report is done, speak with your realtor first.
The seller is responsible for obtaining the smoke detector certificate, plus municipal certificate of occupancy if required by your town. Discuss these with your realtor. Please also arrange the walk through with your realtor.
Closing date is approximate
You should understand that the proposed closing date in the Contract is an approximate closing date. The actual closing depends upon the buyer's mortgage company issuing a commitment and a mortgage check. We do not set the closing date, that is set by the buyer's attorney. The realtor should be calling the buyer's attorney to determine time of closing and directions to the closing, not our office.
If Seller fails to timely obtain a written mortgage payoff statement, there will be an additional charge of $100.00 for the Seller's attorney to obtain the written payoff statement.
SELLERS INFORMATION SHEET- To be filled out by seller and returned to seller's attorney
KENNETH VERCAMMEN & ASSOCIATES, PC
1. SELLERS NAME: (as it appears on deed)
___________________________________________________________
2. Real Estate being Sold: Lot No. _________ Block No. __________
Address: __________________________________________
3. Present Mortgage Company: _____________________________
Address: ___________________________________________
Loan No. ___________________ 800 Telephone No. ____________
(Provide copy of payoff amount)
4. Other Mortgages, including Bridge Loans or Home Equity:
Name of Mortgage Company: _____________________________
Address: __________________________________________
Loan No. __________________ 800 Telephone No. ____________
(Obtain written copy of payoff amount from bank, a verbal payoff will not be good enough)
5. Social Security Number: (H) ________________ (W) ___________
6. Is any Seller age 62 or over? If so, name and date of birth: _________
7. Name, Address, Telephone number of Condominium Association, if any
_______________________________________________________
8. Type of Fuel: Gas ___________________ Oil _______________
PLEASE ATTACH A COPY OF TITLE INSURANCE, SURVEY, & DEED (not original)
9. Marriage Information:
Date of Marriage __________ Maiden or Prior Name(s) __________
Prior Marriages ________________________
(copy of Final Judgment of Divorce needed, not original)
10. Address After Property Sale: _____________________________
2. Yearly Insurance Review
By Ray Pavese & Mike McCormick
Every year you should review your insurance policies to make sure you still have a policy that
meets your needs, as well as the needs of your family members and
loved ones.
One of the policies that most often gets overlooked is the life
insurance policy. Since this is often a long-term policy, most
insured individuals assume they are stuck with the same policy,
no matter what. Usually this is not the case, although it will
depend on your policy and company as to whether you receive
penalties when changing your insurance.
Even if penalties occur, changing your life insurance policy may
be essential to keeping up with your family's financial needs for
the future.
If you don't review your life insurance policy every year, you
should at least review your policy under these circumstances:
* Marriage/Divorce - Needs change depending on your marital
status. Keep this in mind as things change in your life. Even if
you don't want to change the value of your policy, you probably
want to change the beneficiary.
* Children - If you ask the majority of life insurance agents,
the major reason for changing a life insurance policy is because
of children. This is because many adults never believe they will
need extra money after death until they realize that they will
have someone preceding them in death. Children will need money
for basic food and shelter until they are 18 and possibly for a
future college fund as well. Keep that in mind, and tell others
you know that may be affected.
* An Illness - Although waiting to change your insurance policy
until you have a long-term illness will mean paying higher
premiums, it is best to at least review your policy limitations
and make necessary changes if you find out you have a potentially
life threatening illness.
If you have questions regarding a change you would like to make
on your life insurance policy, feel free to contact me anytime.
Sincerely,
Ray Pavese & Mike McCormick
Pavese-McCormick Agency, Inc.
mikem@pavesemccormick.com
______________________________
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion." State v. Lord Appellate Division, A-3228-05T2, October 5, 2006, not approved for publication.
Law Division order granting the defendant’s motion to suppress evidence of the results of his sobriety tests affirmed; the police officer observed the defendant’s car cross both the shoulder and center lines, and he then activated his video recorder and followed the defendant’s car for about two and a half minutes; the officer testified that, during that time, the defendant came to a full stop several times, properly used his signals when executing turns, did not speed, and properly stopped his car when the officer signaled; there was no question that the initial motor vehicle violation allowed the officer to stop the defendant; however, the Law Division properly concluded that the reasons that the officer gave for ordering sobriety tests did not give rise to a “reasonable suspicion” that the defendant had been driving while intoxicated; although the defendant had been observed violating the motor vehicle laws, his behavior did not demonstrate any further violation, and he did not exhibit any physical impairment. Source: Facts-on-Call Order No. 20296
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level. State v. Pearson Appellate Division, A-1344-05T2, September 22, 2006, not approved for publication.
Conviction following a trial de novo of driving while intoxicated affirmed; the defendant registered blood-alcohol-content levels of 0.08 and 0.09 on two Breathalyzer tests; the defendant asserted that the State had not established that the Breathalyzer was in proper working order because it was calibrated for accuracy at a 0.10 blood-alcohol-content level rather than a 0.08 level; the State Police protocols were not changed when N.J.S.A. 39:4-50 was amended to reduce the blood-alcohol-content level needed to establish a per se violation from 0.10 to 0.08, and the protocols require periodic testing with a simulator solution to establish accuracy at the 0.10 level; there was no merit to the defendant’s argument in light of the well-established principle that a Breathalyzer that is tested pursuant to the protocols and satisfies them is in proper working order and thus satisfies the State’s burden of proving that the results from the Breathalyzer, if correctly operated by a qualified operator, are reliable. Source: Facts-on-Call Order No. 20227
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
April 25, 2007
In this issue:
1. Real Estate Sales
2. Yearly Insurance Review
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion."
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level
1. Real Estate Sales
To better serve our Probate and Senior citizen clients, Kenneth Vercammen has taken and passed the NJ Real Estate Salesperson test. The examination consists of numerous questions taken over a 4 hour period. Mr. Vercammen is now also a licensed real estate agent, is affiliated with Century 21, John Anthony Agency on 1815 Oak Tree Rd., Edison, NJ. Century 21 is one of the largest real estate agencies in the country. http://www.century21johnanthony.com/
If you will be selling a house, please give Kenneth Vercammen a call. Do not pay a 6% commission, but also don't rely on a 2% agency that merely lists your home on the internet, then expects you to do all the work.
SELLERS INFORMATION SHEET
The sale of a home is probably the largest transaction a person will ever undertake. Careful consideration should be given to the technical difficulties involved in the transfer.
The Contract of Sale
A Contract of Sale is an agreement for the purchase and sale of real estate. This is the most important document in any real estate transaction because it establishes the respective rights and responsibilities of the purchaser and the seller.
Since the Contract of Sale is important and legally binding New Jersey requires a 3 day attorney review period on Contracts prepared by a realtor. Please read the contract before signing. If you have any questions, please ask your real estate agent. If there are any clauses you want added, such as the house sale "As is", make sure they are added to the Contract before signing.
The 3 day attorney review period is to protect the buyer and seller from being forever bound by a contract without them receiving the benefit of legal advice. You only have three days to have your attorney review the contract and make the appropriate changes. Remember that once a Contract is signed and in final form after 3 days, your rights and obligations are fixed concerning the transaction. Your attorney will no longer have the opportunity to structure the Contract to meet your objectives.
Read and Understand the Contract Before Signing your Contract of Sale
Perhaps the seller may want to retain possession of the property for some time in order to find new accommodations. You should make sure these clauses are included in the contract defining such rights prior to signing. Never sign a contract involving the sale or purchase of real estate until you have done the following:
1. read the entire contract
2. written down your questions and posed them to your realtor
3. made sure all your requested clauses are included, such as the house being sold "as is"
These are only a few matters usually covered in the contract. However, they illustrate the variety of terms and conditions to be considered when you enter into such a transaction.
FEE AGREEMENT BY THE SELLER'S ATTORNEY
The seller's attorney should provide the seller with a written Fee Agreement in accordance with the requirements of the Rules of Professional Conduct. Please do not be put off by the formality of this letter as it is for your protection as a consumer of legal services.
Legal fees for sales vary. We still charge a flat rate of $800 plus any costs for a simple real estate house sale where the realtor prepares the contract.
We anticipate the following will be performed by your attorney in a real estate sale:
1. Review and analyze the contract of sale during attorney review after both buyer and seller sign the contract.
2. Recommend revisions to contract if needed. However, the seller should never sign the contract if it is missing clauses or language needed by the seller.
3. Initial Office consultation if requested with client after contract is signed by both buyer and seller;
4. Request from the Seller back title, including a photocopy of the Deed, survey, title policy and mortgage payoff statement.
5. Preparation of fax letter of representation to buyer's attorney
6. Opening of file
7. Prepare Representation statement to client with request for Seller's Information Sheet
8. Review old Deed, survey
9. Forward Deed, survey, title policy to the purchaser's attorney, thus expediting the search and survey process.
10. Three (3) free calls with client
11. Three (3) telephone calls with buyers attorney and other individuals
12. Three (3) correspondence to and from buyers attorney and clients
13. Review home inspection report
14. Review other documents supplied by client and buyer's attorney;
15. Work with the purchaser's attorney in resolving possession and closing date.
16. Remind the seller to contact their mortgage company and equity loan to obtain a written payoff/ balance due on their mortgage.
17. Review Title Binder and Judgment Searches, if applicable
18. Review RESPA pre-closing, if applicable
19. Preparation of Deed, fax to buyer's attorney
20. Preparation of Affidavit of Title, fax to buyer's attorney
21. Cooperate with the purchaser's attorney in preparing the final closing statement.
22. Review the Respa, which is the Federal Real Estate Settlement Procedure Statement/ Amounts paid and to be received
23. Represent you at the closing.
24. Attend closing, execute Deed, execute Affidavit of Title
25. Assist in Preparation of 1099 tax form
26. Offer sound legal advice to client;
27. Preparation of End of Case Letter and client questionnaire.
28. Make available to client in office upon request free client case folder, Real Estate brochure, Website brochure, and other information brochures on Wills and Power of Attorney;
29. Free Brochures provided on other legal topics such as Car Insurance Rights, Worker's Comp,
30. Free subscription to monthly e-mail newsletter. Provide your email address.
31. 3 free telephone calls during the 2 years after the closing on Probate, Wills and non real estate matters.
32. Invitation to client community events.
33. Free Magnet, Keychain, Pen upon request in the office
Costs are items such as filing and recording fees, Certified or Express postage and other out of pocket expenses.
This fee does not include costs or legal fees if there are judgments against the property, probate issues, defects in title or other work requested to be performed. If this closing does not take place, you will only be responsible for the legal fees and costs incurred.
Work with your Realtor
Your realtor is a highly trained licensed professional. Their goal is to help you through this closing. They perform substantial work and earn the commissions of between $8,000- $16,000. In order to keep your legal fees down, you should be calling you realtor with routine questions regarding the closing. We have learned by past experience if you, your realtor or you family call your attorney's office every day, these calls are not included in the $800 fee, and there will be a charge for excess calls. The buyer is entitled to obtain a termite inspection and home inspection. Inspections are scheduled by the realtors. If the buyer requests repairs after the home inspection report is done, speak with your realtor first.
The seller is responsible for obtaining the smoke detector certificate, plus municipal certificate of occupancy if required by your town. Discuss these with your realtor. Please also arrange the walk through with your realtor.
Closing date is approximate
You should understand that the proposed closing date in the Contract is an approximate closing date. The actual closing depends upon the buyer's mortgage company issuing a commitment and a mortgage check. We do not set the closing date, that is set by the buyer's attorney. The realtor should be calling the buyer's attorney to determine time of closing and directions to the closing, not our office.
If Seller fails to timely obtain a written mortgage payoff statement, there will be an additional charge of $100.00 for the Seller's attorney to obtain the written payoff statement.
SELLERS INFORMATION SHEET- To be filled out by seller and returned to seller's attorney
KENNETH VERCAMMEN & ASSOCIATES, PC
1. SELLERS NAME: (as it appears on deed)
___________________________________________________________
2. Real Estate being Sold: Lot No. _________ Block No. __________
Address: __________________________________________
3. Present Mortgage Company: _____________________________
Address: ___________________________________________
Loan No. ___________________ 800 Telephone No. ____________
(Provide copy of payoff amount)
4. Other Mortgages, including Bridge Loans or Home Equity:
Name of Mortgage Company: _____________________________
Address: __________________________________________
Loan No. __________________ 800 Telephone No. ____________
(Obtain written copy of payoff amount from bank, a verbal payoff will not be good enough)
5. Social Security Number: (H) ________________ (W) ___________
6. Is any Seller age 62 or over? If so, name and date of birth: _________
7. Name, Address, Telephone number of Condominium Association, if any
_______________________________________________________
8. Type of Fuel: Gas ___________________ Oil _______________
PLEASE ATTACH A COPY OF TITLE INSURANCE, SURVEY, & DEED (not original)
9. Marriage Information:
Date of Marriage __________ Maiden or Prior Name(s) __________
Prior Marriages ________________________
(copy of Final Judgment of Divorce needed, not original)
10. Address After Property Sale: _____________________________
2. Yearly Insurance Review
By Ray Pavese & Mike McCormick
Every year you should review your insurance policies to make sure you still have a policy that
meets your needs, as well as the needs of your family members and
loved ones.
One of the policies that most often gets overlooked is the life
insurance policy. Since this is often a long-term policy, most
insured individuals assume they are stuck with the same policy,
no matter what. Usually this is not the case, although it will
depend on your policy and company as to whether you receive
penalties when changing your insurance.
Even if penalties occur, changing your life insurance policy may
be essential to keeping up with your family's financial needs for
the future.
If you don't review your life insurance policy every year, you
should at least review your policy under these circumstances:
* Marriage/Divorce - Needs change depending on your marital
status. Keep this in mind as things change in your life. Even if
you don't want to change the value of your policy, you probably
want to change the beneficiary.
* Children - If you ask the majority of life insurance agents,
the major reason for changing a life insurance policy is because
of children. This is because many adults never believe they will
need extra money after death until they realize that they will
have someone preceding them in death. Children will need money
for basic food and shelter until they are 18 and possibly for a
future college fund as well. Keep that in mind, and tell others
you know that may be affected.
* An Illness - Although waiting to change your insurance policy
until you have a long-term illness will mean paying higher
premiums, it is best to at least review your policy limitations
and make necessary changes if you find out you have a potentially
life threatening illness.
If you have questions regarding a change you would like to make
on your life insurance policy, feel free to contact me anytime.
Sincerely,
Ray Pavese & Mike McCormick
Pavese-McCormick Agency, Inc.
mikem@pavesemccormick.com
______________________________
3 DWI suppression affirmed where reasons for ordering sobriety test not "reasonable suspicion." State v. Lord Appellate Division, A-3228-05T2, October 5, 2006, not approved for publication.
Law Division order granting the defendant’s motion to suppress evidence of the results of his sobriety tests affirmed; the police officer observed the defendant’s car cross both the shoulder and center lines, and he then activated his video recorder and followed the defendant’s car for about two and a half minutes; the officer testified that, during that time, the defendant came to a full stop several times, properly used his signals when executing turns, did not speed, and properly stopped his car when the officer signaled; there was no question that the initial motor vehicle violation allowed the officer to stop the defendant; however, the Law Division properly concluded that the reasons that the officer gave for ordering sobriety tests did not give rise to a “reasonable suspicion” that the defendant had been driving while intoxicated; although the defendant had been observed violating the motor vehicle laws, his behavior did not demonstrate any further violation, and he did not exhibit any physical impairment. Source: Facts-on-Call Order No. 20296
4. Defendant can be guilty of .08 DWI even though Breath machine calibrated at .10 level. State v. Pearson Appellate Division, A-1344-05T2, September 22, 2006, not approved for publication.
Conviction following a trial de novo of driving while intoxicated affirmed; the defendant registered blood-alcohol-content levels of 0.08 and 0.09 on two Breathalyzer tests; the defendant asserted that the State had not established that the Breathalyzer was in proper working order because it was calibrated for accuracy at a 0.10 blood-alcohol-content level rather than a 0.08 level; the State Police protocols were not changed when N.J.S.A. 39:4-50 was amended to reduce the blood-alcohol-content level needed to establish a per se violation from 0.10 to 0.08, and the protocols require periodic testing with a simulator solution to establish accuracy at the 0.10 level; there was no merit to the defendant’s argument in light of the well-established principle that a Breathalyzer that is tested pursuant to the protocols and satisfies them is in proper working order and thus satisfies the State’s burden of proving that the results from the Breathalyzer, if correctly operated by a qualified operator, are reliable. Source: Facts-on-Call Order No. 20227
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
NJ Laws email newsletter E2421 1. Kenneth Vercammen, Edison Attorney was selected a 2007 NJ Super Lawyer 2. Estate Recovery in Medicaid 3. Miranda
Kenneth Vercammen's NJ Laws email newsletter
April 19, 2007
In this issue:
1 Kenneth Vercammen, Edison Attorney was selected a 2007 NJ Super Lawyer
2. Estate Recovery in Medicaid
3. Need for to reapply Miranda warnings depends on circumstances
4. Motion to suppress granted where stop based on only 911 call that was vague
1. Kenneth Vercammen, Edison Attorney was selected a 2007 NJ Super Lawyer in the Criminal Law- DWI section for the second year in a row. Of over 79,00 attorneys in New Jersey, only three were selected as Super Lawyers in the Criminal Law- DWI category.
HOW SUPER LAWYERS ARE SELECTED
Law & Politics performs the polling, research and selection of Super Lawyers in a process designed to identify lawyers who have attained a high degree of peer recognition and professional achievement. Super Lawyers is a comprehensive and diverse listing of outstanding attorneys, representing a wide range of practice areas, firm sizes and geographic locations. Only 5 percent of the lawyers in each state or region are named Super Lawyers.
http://www.njlaws.com/superlawyer.htm
2. ESTATE RECOVERY IN MEDICAID
By: Thomas. D. Begley, Jr., Esquire
A state is entitled to recover for Medicaid payments correctly paid on behalf of the individual by use or real or personal property liens and recovery from decedents’ estates. 42 U.S.C. § 1396p(b)(1)(B); HCFA Transmittal 63; N.J.S.A. 30:4D-7.2 et seq.; N.J.A.C. 10:49-1 et seq. The state is required to seek reimbursement from an individual’s estate for the cost of nursing facility services. 42 U.S.C. § 1396p(b)(1)(B). However, no recovery may be made until after the death of the recipient’s surviving spouse, and only when there are no surviving children who are under age 21 or blind or permanently disabled.
A. Definition of Estate. New Jersey seeks recovery from estates of deceased individuals. While federal law only requires that states recover from the probate estate of the deceased Medicaid recipient, New Jersey has elected to expand the definition of an estate as follows:
“Estate includes all real and personal property and other assets included in the recipient’s estate as defined at N.J.S. 3B:1-1, as well as any other real or personal property and other assets in which the recipient had any legal title or interest at the time of death, to the extent of that interest, including assets conveyed to a survivor, heir or assign of the recipient through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement.”
B. Age 55. With respect to an institutional level of care, estate recovery applies to all Medicaid payments made or services received after an individual is 55 years of age or older. N.J.A.C. 10:49-14.1(c). Under federal and state law, in the case of a recipient who became deceased on or after April 1, 1995 for whom a Medicaid payment was made on or after October 1, 1993, a lien may be filed against, and recovery sought, from the estate of a deceased recipient for assistance correctly paid or to be paid on his behalf for all services received when he was 55 years of age or older. 42 U.S.C. § 1396p(b); N.J.A.C. 10:49-14.1(c).
C. De minimus Amounts. Under N.J.A.C. 30:4D-7.2a, recovery cannot be made against the estate of a deceased recipient if the amount sought is less than $500 or the gross estate of the deceased recipient is less than $3,000.
D. Surviving Spouse or Child under 21 or Blind or Disabled. No recovery shall be made if there is a surviving spouse or a surviving child who is under the age of 21 or is blind or permanently and totally disabled, except for assistance incorrectly or illegally paid or for third party liability recovery. These exceptions to estate recovery are also incorporated in N.J.A.C. 10:49-14.1(a).
E. PAAD. No estate recovery shall be made under the Pharmaceutical Assistance to the Aged and Disabled program (PAAD), unless the assistance was incorrectly or illegally paid.
F. Life Estates/Trusts.
• Life Estate. Life estates that expire upon the Medicaid beneficiary’s death are exempt from estate recovery. N.J.A.C. 10:49-14.1(n)(1).
• Inter Vivos Trust. An inter vivos trust established by a third party for the benefit of a deceased Medicaid recipient is not subject to estate recovery provided that the Medicaid recipient could not compel distributions from the trust and the trust contains no assets in which the Medicaid beneficiary held any interest within either five (5) years prior to applying for Medicaid benefits or five (5) years prior to the Medicaid recipient’s death. N.J.A.C. 10:49-14.1(n)(2).
• Testamentary Trust. Testamentary trusts are exempt from estate recovery provided that the Medicaid recipient could not compel distribution and the trust contains no assets in which the Medicaid recipient held an interest within either five (5) years prior to applying for Medicaid benefits or five (5) years prior to the recipient’s death. Assets of the community spouse which formed a part of the Community Spouse Resource Allowance shall not be considered assets of the Medicaid recipient. Any assets of the community spouse other than those that formed part of the CSRA allowance are considered assets of the Medicaid recipient if acquired from the Medicaid recipient with five (5) years prior to the date of application for the Medicaid benefits or five (5) years prior to the date of the death of the Medicaid beneficiary. It is believed that the reference to assets acquired from the Medicaid recipient means assets acquired from the Medicaid recipient’s spouse.
G. Tracing. N.J.A.C. 10:49-14.1(l) makes clear that estate recovery may be sought from trusts and annuities, even if established by a third party. This applies to living trusts and testamentary trusts if the assets in the trust belonged to the Medicaid beneficiary as of five years prior to the beneficiary’s death. N.J.A.C. 10:49-14.1(n). This provision may be invalid since it appears to be more restrictive than either the federal or state statute, which limits recovery to “living trusts.” However, in DeMartino v. Division of Medical Assistance and Health Services, 373 N.J. Super. 210 (App. Div. 2004), the court held that such a trust was subject to Medicaid estate recovery.
H. Spouse. New Jersey’s current regulations exempt the estate of the spouse from recovery. N.J.A.C. 10:49-14.1(n).
An issue arises as to whether a state may recover from the estate of a spouse of a deceased Medicaid recipient. In the case of Wisconsin v. Estate of Budney, 197 NW 2d 245 (Wis. Ct. App. 1995), the court held that the Wisconsin statute authorizing recovery from the spouse of a deceased Medicaid recipient is invalid. In a California case, Demille v. Bleshe, 1995 WL 23636 (N.D. Cal. 1995), the court held that the state was free to impose liens on property of the deceased Medicaid recipient, after the recipient is dead, and that those liens become payable upon the death of the surviving spouse or upon sale of the property.
New Jersey has a policy of not forcing a sale while any family member is still living in the house. This is documented in N.J.A.C. 10:49-14.1(j). Recoveries will not be pursued against property held by bona fide purchasers. N.J.A.C. 10:49-14.1(k).
There may be an issue as to whether Medicaid can recover for payments made on behalf of the deceased Medicaid recipient prior to December 23, 1995, which is the effective date of the New Jersey statute.
New Jersey will exempt assets from estate recovery on a hardship basis only if the asset is the sole income-producing asset of the survivor, and recovery by the state would result in the survivor becoming a beneficiary of public benefits himself or herself. Thus, New Jersey’s tentative definition of “hardship” is very rigid. There is also a rebuttable presumption in New Jersey that there is no hardship if Medicaid planning was effected. N.J.A.C. 10:49-14.1(h). The representative of the estate of the Medicaid recipient has 20 days from the date of receipt of the notice of the State’s lien to file a request for a waiver or compromise of the claim.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.
3. Need for to reapply Miranda warnings depends on circumstances State v. Dispoto __ NJ ___ (A-103-05) 1-18-07
The Court rejected the Appellate Division’s bright-line approach that failure to re-administer Miranda warnings at the time of arrest required suppression of Dispoto’s post-arrest incriminating statement, notwithstanding the pre-custodial warning about an hour earlier. The Court retains the more measured and traditional totality-of-the-circumstances assessment. Thus, where pre-custodial warnings have been given to a defendant as part of a continuing pattern of interactions between the defendant and the police, and during that continuing sequence of events nothing of an intervening nature occurs that would dilute the effectiveness of the warning, there would appear to be no need to require another warning. Such determinations are better suited to fact-based assessments rather
than bright-line pronouncements.
Because there was insufficient evidence to support the issuance of the underlying domestic violence search warrant, the criminal search warrant was invalid as fruit of the poisonous tree. While this holding renders moot the Appellate Division’s finding that failure to re-administer Miranda warnings at the time of arrest required suppression of Dispoto’s post-arrest incriminating statements, the Court adds in respect of the issue of the Miranda warnings only that no bright line or per se rule governs whether re-administration is required following a pre- custodial Miranda warning.
4. Motion to suppress granted where stop based on only 911 call that was vague. State v. Phelps Appellate Division, A-3755-05T2, November 14, 2006, not approved for publication.
Law Division order that granted the defendant’s motion to suppress evidence that was seized after his motor vehicle was stopped affirmed; a man called 911 and reported that five “dark-skinned black males” who were members of the Bloods street gang were armed and chasing him in a “blue car”; police officers responded to the scene, stopped a “bluish-gray” Pontiac Bonneville that contained only the defendant, who is black, and a Hispanic female passenger, and recovered a handgun and crack cocaine; although other occupants of the defendant’s vehicle could have fled the scene before the officers arrived, the number and gender of the occupants that the officers saw did not match the 911 caller’s description, and the caller had identified the vehicle only by a nondescript color; the stop of the defendant’s vehicle was not justified because the information that the 911 caller provided did not correspond to the officers’ observations to the extent that the officers and the court could be certain that the defendant’s vehicle was the same vehicle that the caller had identified; instead, the caller’s description of the vehicle was “vague.” Source: Facts-on-Call Order No. 20501.
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
Registration info or to purchase book & audiotape
------------------------------------------------------------------------
Kenneth Vercammen
2053 Woodbridge Ave.
2053 Woodbridge Ave.
Edison, NJ 08817
Phone: 732-572-0500
Fax: 732-572-0500
Web site: http://www.njlaws.com/
E-mail: kenvnjlaws@verizon.net
Saturday, May 19, 2007
Kenneth Vercammen's NJ Laws email newsletter E245 May 18, 2007
In this issue:
1. Friday, May 25- The Legends of Belmar Volleyball
2. DNA Testing of Criminals Does Not Violate Constitution
3 DNA Testing of Juvenile Criminals Constitutional
4. Receipt of Nine Checks Not a Criminal Enterprise to Deny PTI
5. Fire Investigators Can Remain on Scene and Seize Items in Plain View
1. Friday, May 25- The Legends of Belmar Volleyball- Join the Greats of Belmar beach- Marty, John C. Billy Ball, Jim Watt, Ken Vercammen & others at D'Jay's, Bar A & other fun spots. Run the Spring Lake 5 at 8:30 am the next morning. Exciting start to Memorial Day and the Summer.
2. DNA Testing of Criminals Does Not Violate Constitution. State v. O’Hagen 189 NJ 140 (2007).
The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1- 20.17-20.28, as amended, does not violate the rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Paragraphs 1 and 7 of the New Jersey Constitution.
3 DNA Testing of Juvenile Criminals Constitutional. A.A. v. Attorney General of New Jersey 189 NJ 129 (2007).
DNA test results lawfully obtained pursuant to the New Jersey DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17- 20.28, as amended, may be used to solve crimes committed prior to the taking of the DNA test.
4. Receipt of Nine Checks Not a Criminal Enterprise to Deny PTI. State v. Watkins 390 NJ Super. 302 (App. Div. 2007).
In this appeal from a denial of defendant's appeal of his rejection from pre-trial intervention (PTI), The court addressed the meaning of PTI Guideline 3(i)(2), which directs consideration of whether the crime was "part of a continuing criminal business or enterprise". Reviewing the prior cases that have addressed this Guideline, The court concludes that the Prosecutor and the reviewing judge erroneously applied Guideline 3(i)(2) to the facts of this case which involved improper receipt of unemployment checks over a four-month period. Defendant's conduct did not possess the characteristics of a "business" or "enterprise" nor did it persist for a long enough period to be deemed "continuing," as that phrase has been applied in earlier cases. As a result, The court remanded to the Prosecutor for reconsideration of defendant's application without consideration of Guideline 3(i)(2).
5. Fire Investigators Can Remain on Scene and Seize Items in Plain View. State v. Amodio 390 NJ Super 313 (App. Div. 2007).
In this matter, defendant was convicted of passion/provocation manslaughter, felony murder, arson and other offenses arising from the death of his girlfriend and her son in a fire at defendant's home. The court held that: 1) evidence obtained by the police and other officials in the fire-damaged home was properly seized without a warrant because the evidence was found during an investigation into the cause and origin of the fire, which was conducted within a reasonable time after the fire had been extinguished; and 2) the warrantless seizure of defendant's clothes was permissible because those garments had been removed from defendant in order to provide emergency medical assistance.
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
1. Friday, May 25- The Legends of Belmar Volleyball
2. DNA Testing of Criminals Does Not Violate Constitution
3 DNA Testing of Juvenile Criminals Constitutional
4. Receipt of Nine Checks Not a Criminal Enterprise to Deny PTI
5. Fire Investigators Can Remain on Scene and Seize Items in Plain View
1. Friday, May 25- The Legends of Belmar Volleyball- Join the Greats of Belmar beach- Marty, John C. Billy Ball, Jim Watt, Ken Vercammen & others at D'Jay's, Bar A & other fun spots. Run the Spring Lake 5 at 8:30 am the next morning. Exciting start to Memorial Day and the Summer.
2. DNA Testing of Criminals Does Not Violate Constitution. State v. O’Hagen 189 NJ 140 (2007).
The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1- 20.17-20.28, as amended, does not violate the rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Paragraphs 1 and 7 of the New Jersey Constitution.
3 DNA Testing of Juvenile Criminals Constitutional. A.A. v. Attorney General of New Jersey 189 NJ 129 (2007).
DNA test results lawfully obtained pursuant to the New Jersey DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17- 20.28, as amended, may be used to solve crimes committed prior to the taking of the DNA test.
4. Receipt of Nine Checks Not a Criminal Enterprise to Deny PTI. State v. Watkins 390 NJ Super. 302 (App. Div. 2007).
In this appeal from a denial of defendant's appeal of his rejection from pre-trial intervention (PTI), The court addressed the meaning of PTI Guideline 3(i)(2), which directs consideration of whether the crime was "part of a continuing criminal business or enterprise". Reviewing the prior cases that have addressed this Guideline, The court concludes that the Prosecutor and the reviewing judge erroneously applied Guideline 3(i)(2) to the facts of this case which involved improper receipt of unemployment checks over a four-month period. Defendant's conduct did not possess the characteristics of a "business" or "enterprise" nor did it persist for a long enough period to be deemed "continuing," as that phrase has been applied in earlier cases. As a result, The court remanded to the Prosecutor for reconsideration of defendant's application without consideration of Guideline 3(i)(2).
5. Fire Investigators Can Remain on Scene and Seize Items in Plain View. State v. Amodio 390 NJ Super 313 (App. Div. 2007).
In this matter, defendant was convicted of passion/provocation manslaughter, felony murder, arson and other offenses arising from the death of his girlfriend and her son in a fire at defendant's home. The court held that: 1) evidence obtained by the police and other officials in the fire-damaged home was properly seized without a warrant because the evidence was found during an investigation into the cause and origin of the fire, which was conducted within a reasonable time after the fire had been extinguished; and 2) the warrantless seizure of defendant's clothes was permissible because those garments had been removed from defendant in order to provide emergency medical assistance.
_____________________________
Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court
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