TJ Maxx Shoplifting defenses

TJ Maxx Shoplifting defenses Shoplifting Defenses The state must prove the Defendant had the knowing intent to commit a criminal act in a shoplifting case. Sometimes the defendant was not aware that there was a criminal act being committed because of mental issues. NJSA 2C: 4-2. Evidence of mental disease or defect admissible when relevant to element of the offense. Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind, which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect, which would negate a state of mind, which is an element of the offense. Criminal Indictable and Disorderly Offense Penalties Disorderly person criminal offenses- ex Simple Assault, shoplifting & cases in Municipal Court Jail 2C: 43- 8 jail 6 month maximum probation 1-2 year community service 180 days maximum mandatory costs, VCCB and other penalties Disorderly- fines: 2C: 43- 3 $1,000 Fine maximum There are many other penalties that the court must impose in criminal cases. There are dozens of other penalties a court can impose, depending on the type of matter. Indictable Criminal Penalties [Felony type] [ Superior Court] Jail potential Fine max Probation 1st degree 10- 20 years $200,000 [presumption of jail] 2nd degree 5-10 years $150,000 [presumption of jail] 3rd degree 3- 5 years $15,000 1 year- 5 year 4th degree 0- 18 months $10,000 1 year- 5 year The NJ Model Jury charges set forth the elements of SHOPLIFTING [CONCEALMENT] (N.J.S.A. 2C: 20-11b(2)) The statute provides in pertinent part that it is a crime for: any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof. In order for the finder of fact to find the defendant guilty of shoplifting, the State must prove each of the following elements beyond a reasonable doubt: 1. that defendant purposely concealed upon his person or otherwise any merchandise offered for sale by (name of commercial establishment); 2. that (name of commercial establishment) was a store or other retail mercantile establishment; and 3. that defendant did so with the purpose of depriving the merchant of the processes, use, or benefit of such merchandise [OR of converting such merchandise to his/her use] without paying the merchant the value thereof. The first element that the State must prove beyond a reasonable doubt is that defendant purposely concealed upon his person or otherwise any merchandise offered for sale by any store or other retail establishment. The term conceal means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.1 The term merchandise means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof.2 A person acts purposely with respect to the nature of his or her conduct or a result of his conduct if it is the persons conscious object to engage in conduct of that nature or to cause such a result. That is, a person acts purposely if he or she means to act in a certain way or to cause a certain result. A person acts purposely with respect to attendant circumstances if the person is aware of the existence of such circumstances or believes or hopes that they exist.3 1 N.J.S.A. 2C:20-11a(6). 2 N.J.S.A. 2C:20-11a(3). 3 N.J.S.A. 2C:2-2(b)(1). Purpose is a state of mind. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said he/she had a certain state of mind when he/she engaged in a particular act. It is within the fact finders power to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances. The third element that the State must prove beyond a reasonable doubt is that defendant acted with the purpose of depriving the merchant of the processes, use or benefit of such merchandise [OR converting such merchandise to his/her use] without paying the merchant the value of the merchandise. WHEN OFFENSE CHARGED REQUIRES A PURPOSEFUL OR KNOWING STATE OF MIND, CONTINUE CHARGE AS FOLLOWS: Although the statute refers to mistake of fact or law as a defense, caselaw makes it clear that it is not genuinely a defense at all: instead, it is an attack on the prosecutions ability to prove the requisite mental state for at least one objective element of the crime. State v. Sexton, 160 N.J. 93, 99-100 (1999). Since it is obviously impossible for any single charge to explain precisely how the offered defense plays into the element[s] of every possible offense that mistake of fact or law could apply to (Sexton, 160 N.J. at 106), and at best can offer a more general charge on the subject of mistake of fact or law (State v. Pena, 178 N.J. 297, 319 (2004)), this model charge is organized by reference to the state of mind under N.J.S.A. 2C:2-2b contained in the offense charged by the State, and then by the degree to which the mistake of fact or law exonerates or mitigates the defendants guilt. As always, the trial court must tailor the precise type of mistake that defendant relies on to the facts of the particular crime or offense charged and the facts adduced at trial. State v. Concepcion, 111 N.J. 373, 379-380 (1988). 2 Since even an unreasonable mistake can negate the required state of mind for the charged offense, the statutory requirement that the defendant reasonably arrived at the conclusion underlying the mistake was eliminated and, therefore, is not referred to in this model charge. Sexton, 160 N.J. at 105; Pena, 178 N.J. at 306. 3 Sexton, 160 N.J. at 100; Pena, 178 N.J. at 306. STATE OF MIND Purpose/knowledge/intent/recklessness/negligence is/are condition(s) of the mind, which cannot be seen and can only be determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. It is the fact finders job to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of his/her acts and his/her conduct, and from all he/she said and did at the particular time and place, and from all of the surrounding circumstances. PRESUMPTION OF INNOCENCE This defendant(s), as are all defendants in criminal cases, is presumed to be innocent until proven guilty beyond a reasonable doubt. REASONABLE DOUBT The prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty. The State has the burden of proving the defendant guilty beyond a reasonable doubt. A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have. Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendants guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. 2C:20-11 b.Shoplifting. Shoplifting shall consist of any one or more of the following acts: (1) For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof. (2) For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof. (3) For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof. (4) For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof. (5 )For any person purposely to under-ring with the intention of depriving the merchant of the full retail value thereof. (6 )For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart. c.Gradation. Shoplifting constitutes a crime of the second degree under subsection b. of this section if the full retail value of the merchandise is $75,000 or more, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is $1,000 or more. (2) Shoplifting constitutes a crime of the third degree under subsection b. of this section if the full retail value of the merchandise exceeds $500 but is less than $75,000, or the offense is committed in furtherance of or in conjunction with an organized retail theft enterprise and the full retail value of the merchandise is less than $1,000. (3) Shoplifting constitutes a crime of the fourth degree under subsection b. of this section if the full retail value of the merchandise is at least $200 but does not exceed $500. (4) Shoplifting is a disorderly persons offense under subsection b. of this section if the full retail value of the merchandise is less than $200. The value of the merchandise involved in a violation of this section may be aggregated in determining the grade of the offense where the acts or conduct constituting a violation were committed pursuant to one scheme or course of conduct, whether from the same person or several persons, or were committed in furtherance of or in conjunction with an organized retail theft enterprise. Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C:43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows: for a first offense, at least ten days of community service; for a second offense, at least 15 days of community service; and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days. d. Presumptions. Any person purposely concealing uppercased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise. Copyright 2016 Vercammen Law More info at http://www.njlaws.com/shoplifting.html

Timothy Holzman NJ

Timothy Holzman

Objective: To obtain an internship in the criminal justice field in order to broaden my view of future career goals and put my strong work ethic to use Education: Seton Hall University, South Orange, NJ Bachelor of Arts in Political Science, Expected May ‘09 Minor- Criminal Justice Cumulative GPA of 3.5 Honors: Dean’s list, all semesters Work Experience: Research Management Strategies, New Brunswick, NJ Financial Analysis/Research Intern, December 06’- February 07’ • Learned the essential skills and attributes for running a successful political campaign • Assessed finances for Democratic parties in terms of most significant contributors using Microsoft Excel • Analyzed the results of previous election primaries in order to understand the concentration of democratic voters • Canvassed areas in the most democratic counties providing information to increase awareness and gain interest of voters Homefix Corp, South Orange, NJ Canvasser/Salesman, September 06’ – August 07’ • Sold home improvements on windows, siding, and/or roofing • Received extensive instruction on sales pitching and interacting with people • Sold various estimates and provided excellent customer service by explaining to customers the benefits of the company Avon Tax Collector’s Office, Avon, CT Paid Intern, June 06’ – September 06’ • Handled various financial issues including the validation of checks as well as the observation of residents’ tax paying • Completed various miscellaneous mathematical assignments applying different interest rate equations to delinquent tax payers Special Skills: Proficient in Spanish Proficient in Microsoft Word, Excel, and Power Point, Internet Explorer Activities: Relay for Life, Basketball/Soccer Intramurals

then Highland Park Municipal Court Prosecutor Phil George Speaks About Hate Crime NJ

then Highland Park Municipal Court Prosecutor Phil George Speaks About Hate Crime

Piscataway and Highland Park Prosecutor Phil George was the speaker at the May meeting of the Middlesex County Bar Municipal Court Practice Committee. The program was The New Hate and Bias crimes law. Pictured here: Prosecutor Phil George and Municipal Court Committee Chair Kenneth Vercammen

The Sam Smith Award Was Awarded to Jay Foonberg NJ

The Sam Smith Award Was Awarded to Jay Foonberg

The Sam Smith Award was awarded to Jay Foonberg, author of How to Start and Build a Law Practice at the LPM Section Gathering on August 9 at the ABA Annual Meeting. In photo, Kenneth Vercammen congratulates Mr. Foonberg, with Law Practice Management 2007-2008 Chair Vedia Jones- Richardson. The Sam Smith Award, the highest honor bestowed by the ABA Law Practice Management Section, was established in 1999 on the occasion of the Section’s 25th Anniversary. The award recognizes an individual who has demonstrated outstanding lifetime achievement in the field of law practice management. Mr. Foonberg also was one of the speakers with Kenneth Vercammen on Elder Law 2007- Changes in the law and Expanding an Elder Law Practice at the American Bar Association 2008 Annual Meeting in San Francisco. Mr. Foonberg’s Best selling books are available at http://www.foonberglaw.com. I highly recommend How to Get and Keep Good Clients, 3rd edition (8 hour Audio CD Series) ©2007 Join the hundreds of thousands of lawyers who have benefited from Mr. Foonberg's sharing of information. Any one chapter or idea can immensely improve your practice income and your life. The 8 hours of CD's are designed to teach you how to get and keep good clients. No need to take notes. Just listen as you drive or commute. You will want to replay the information again and again and share it with others in your office. You'll be able to immediately use what you learn and put into effect these marketing success tips."Best selling author and acknowledged marketing ace Jay Foonberg gives practice-proven tips and systems that you can use for long-range and immediate marketing success. This information is not theoretical. Foonberg encourages you to try different marketing approaches in order to develop your own winning personal style. This is practical information you can put to use right away. You'll find hundreds of useful suggestions to help you grow your practice, and improve the way you do business day to day. The end result is a more client-focused, efficient, and profitable practice with everything pointed in the right direction. Included: "Foonberg's Favorite 51 Rules of Good Client Relations for the Busy Lawyer" "How Turning Down my First Case Led to 19 Cases" "How to Handle People Who Hate Lawyers or the Legal System" "Fee Allocation Formulas to Encourage Marketing" Numerous sample letters, homespun advice, and personal experiences And much, much more! Put Jay Foonberg's over forty years of successful personal experience in the practice of law and in the continuing education field to work for you. You'll find his advice practical and understandable as he presents even the most complex theories in a simple easy-to-learn and easy-to apply fashion. Jay believes any person can have a successful career, and have a life with high income and free of non meritorious complaints if that person is willing to learn and willing to make the simples changes he suggests."Learn what you are doing right and what you may have to change if you sincerely want to increase your income and your practice for the benefit of your clients, your staff and your family.?Included with the 8 hours of lecture materials is a Forms Supplement in Word. Format: 8 hour Audio CD Series?Price: $179.95 http://www.foonberglaw.com

The Nuts and Bolts of Elder Law 2002 Seminar NJ

The NUTS & BOLTS of Elder Law 2002 seminar on April 11 From ICLE featured the following speakers:

Martin A. Spigner, Esq. Kenneth A. Vercammen, Esq. Authors: "Answer to Questions About Probate" Thomas Begley, Jr. Katheleen Browning, Esq. The 382 page book and seminar audiotapes are available from: New Jersey Institute for Continuing Legal Eduacation 1 Constitution Square New Brunswick, NJ 08901-1520 Phone: (732) 214-8500 Fax: (732) 249-0383 email: customerservice@njicle.com website: http://www.njicle.com

The New Alcotest 7110 Alcohol Breath Testing Machine RICHARD SAFERSTEIN, Ph.D., Forensic Science Consultant Former Chief Forensic Scientist for the New Jersey State Police (1970-1991) NJ

The New Alcotest 7110 Alcohol Breath Testing Machine RICHARD SAFERSTEIN, Ph.D., Forensic Science Consultant Former Chief Forensic Scientist for the New Jersey State Police (1970-1991

MARCH 29, 2005 Speakers: RICHARD SAFERSTEIN, Ph.D., Forensic Science Consultant Former Chief Forensic Scientist for the New Jersey State Police (1970-1991) PETER H. LEDERMAN, ESQ., Co-Counsel, State v. Foley Dennis Auciello, Past President, Middlesex County Bar Association Moderator: Kenneth Vercammen, Esq., Chair, MCBA Municipal Court Practice Committee The seminar focused on the following: How the Alcotest 7110 Evidential Breath Test Machine Works Issues Raised in State v. Foley Strategies for Litigating Breath Test Cases in Middlesex County

The Fifth Amendment - "To Take the Fifth" NJ

The Fifth Amendment - "To Take the Fifth" Self-incrimination The Fifth Amendment protects witnesses from being forced to incriminate themselves. To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence. Civil or criminal proceedings Fifth Amendment protections apply wherever and whenever an individual is compelled to testify. The U.S. Supreme Court has ruled that the privilege against self-incrimination applies whether the witness is in Federal or state court (see Malloy v. Hogan, 378 U.S. 1 (1964)), and whether the proceeding itself is criminal or civil (see McCarthy v. Arndstein, 266 U.S. 34 (1924)). People have asserted the privilege in grand jury or in congressional hearings in the 1950s, where witnesses testifying before the House Committee on Un-American Activities and the Senate Internal Security Subcommittee claimed the privilege in response to questions concerning their alleged membership in the Communist Party. The amendment has also been used by defendants and witnesses in criminal cases involving the Mafia. The Supreme Court has also used the incorporation doctrine to apply the self-incrimination clause against the states under the Fourteenth Amendment. Source: http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution The New Jersey Supreme Court recognized the right of a witness to "take the 5th" if called as a witness at a trial. State of New Jersey v. P.Z. (A-21-96) - Decided November 26, 1997 The Supreme Court wrote: "The Fifth Amendment privilege against self-incrimination, made applicable to the states through the Fourteenth Amendment, provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. As explained in Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493, 12 L. Ed.2d 653, 659 (1964), the Fifth Amendment protects “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own free will, and to suffer no penalty . . . for such silence.” It reflects our understanding that government is “constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.” Ibid. In New Jersey, the privilege is derived from the common law and is codified in our statutes and rules. State v. Reed, 133 N.J. 237, 250 (1993); see N.J.S.A. 2A:84-19; N.J.R.E. 503. Its importance is not diminished by the lack of specific constitutional articulation; rather, from colonial times, “New Jersey has recognized the right against self-incrimination and has consistently and vigorously protected that right.” Reed, supra, 133 N.J. at 250. A person invoking the privilege against self-incrimination may do so “'in any . . . proceeding, civil or criminal, formal or informal, where the answers might tend to incriminate him in future criminal proceedings.'” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed.2d 409, 418 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38 L. Ed.2d 274, 281 (1973)); Banca v. Town of Phillipsburg, 181 N.J. Super. 109, 114-15 (App. Div. 1981); see New Jersey Div. of Youth & Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994). However, the privilege is not self-executing under either federal or state law and must be invoked by anyone claiming its protection. Murphy, supra, 465 U.S. at 428-29, 104 S. Ct. at 1142-43, 79 L. Ed. 2d at 419-20; Reed, supra, 133 N.J. at 251. Generally, when the privilege is not asserted and the person questioned chooses to answer, the choice to respond is considered voluntary. Murphy, supra, 465 U.S. at 429, 104 S. Ct. at 1143, 79 L. Ed. 2d at 420; State v. Fary, 19 N.J. 431, 435 (1955)."

The 12 steps of AA NJ

THE TWELVE STEPS OF ALCOHOLICS ANONYMOUS We admitted we were powerless over alcoholthat our lives had become unmanageable. Came to believe that a Power greater than ourselves could restore us to sanity. Made a decision to turn our will and our lives over to the care of God as we understood Him. Made a searching and fearless moral inventory of ourselves. Admitted to God, to ourselves, and to another human being the exact nature of our wrongs. Were entirely ready to have God remove all these defects of character. Humbly asked Him to remove our shortcomings. Made a list of all persons we had harmed, and became willing to make amends to them all. Made direct amends to such people wherever possible, except when to do so would injure them or others. Continued to take personal inventory and when we were wrong promptly admitted it. Sought through prayer and meditation to improve our conscious contact with God, as we understood Him, praying only for knowledge of His will for us and the power to carry that out. Having had a spiritual awakening as the result of these Steps, we tried to carry this message to alcoholics, and to practice these principles in all our affairs. Copyright  1952, 1953, 1981 by Alcoholics Anonymous Publishing (now known as Alcoholics Anonymous World Services, Inc.) All rights reserved. Rev. 6/14 SM F-121

Testimonials from Handling Drug, DWI and Serious Cases NJ

 

Testimonials from Handling Drug, DWI and Serious Cases

Testimonials from Handling Drug, DWI and Serious Motor Vehicle Cases in Municipal Court Seminar NJ State Bar NJICLE Excellent overview of the facs and legal issues surrounding DUIs and related offenses. Whatever your experience with DUI cases, youll leave the lecture hall more knowledgeable about the issues surrounding DUI cases -George H. Shozlay Jr.  The material is a how-to- this is excellent. The lectures complement the material- excellently done -Khaled Bashjawish Great practical advice delivered via real world experience colored with interesting war stories -Jake Bayak Perfect combination of law, with personal experience -Navarro Gray Great speakers! Time flew by! -Dafna Kendal Informative, interesting -Michele L. Waldman A very balanced, good mix of speakers -Patrick Whaler Excellent- good balance with prosecutor and defense attorney -no name Book: Handling Drug DWI and Serious Motor Vehicle Cases in Municipal Court 2015 Authors/Speakers: Kenneth Vercammen, Esq., Past Municipal Court Attorney of the Year John Menzel, Esq., Past Chair Municipal Court Section Speakers: Norma M. Murgado, Esq., Chief Prosecutor- Elizabeth Assistant Prosecutor-Woodbridge Tara Auciello Edison Prosecutor William G. Brigiani, Esq., Past President Middlesex County Bar Purchase from NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION NJICLE, A Division of the NJSBA NJ State Bar Association http://tcms.njsba.com/PersonifyEbusiness/Default.aspx?TabID=1607&productid=7744111 $60 Member $75 Non-Member book # ISBN :CDP150715 email to customerservice@njicle.com or call Customer Service at 732.214.8500 Table of Contents 2015 Table of Contents Page Letters, Motions/Briefs, Articles/Research Kenneth A. Vercammen, Esq. 1 01 Municipal Court Questionnaire 1 02 Retainer Municipal Court 5 03 Request for Complete Discovery 9 04 Letter of Representation Only 10 05 Discovery Request Alcotest 7110 11 06 Discovery Request Driving While Suspended 19 07 Speeding Law and Discovery 23 08 Discovery Request to MVC 31 09 Discovery Complainant 35 10 OPRA Field Sobriety Chief of Police 39 11 OPRA Required Officer Training 42 12 CDS Motions 43 13 DWI Motions 45 14 Motion to Reduce Bail 49 15 Letter to Client re: Reading Discovery from Prosecution 57 16 Reciprocal Discovery to Prosecution 58 17 Notice of Specific Criminal Code Defenses 60 18 Letter to Client re: Reading and Signing Affidavit 61 19 Second Request for Discovery Missing Abstract 62 20 Letter to Client re: DWI Expert 63 21 Letter to Client re: Hearing 64 22 Letter to Client re: Deadline and Attorney Fee for Appeal 65 23 Letter to Client re: No Show in Court 67 24 Suppression Motion 68 25 Suppress Statements: Violation of Miranda Rights 69 26 Dismissal Motion re: Failure to Provide Discovery 73 27 Motion for Conditional Discharge 78 28 Motion for Civil Reservation 79 29 Objection to Lab Certificate 80 30 Motion for SLAP 81 31 Order to Mark Case Try or Dismiss 82 32 Order to Compel Discovery 83 33 Order to Be Relieved as Counsel 84 34 Constructive Possession of Drugs in a Criminal Case 85 35 Court Cannot Handle Discovery 87 36 Motion for No Loss of Drivers License Suspension 91 37 Motion re: Failure to Give Defendant Copy of AIR 93 38 Motion to Provide Expert at Public Expense 103 39 DWI Fines and Penalties in NJ 109 41 Defending a Juvenile Delinquency Case 119 42 Pretrial Intervention Program (PTI) 125 Expungement/Erase Criminal Charges 128 Plea by Mail 129 Certification for Application for Appointment as Private Prosecutor (Storm) 131 Letter Thanking Witness 133 Clients Sentencing and Duties 135 Post Conviction Motion to Vacate Guilty Plea 137 Additional Discovery Brief 145 Brief to Suppress Blood Sample and Objection to Lab Report 149 Motion, Certification, Order in Support of Motion to Be Relieved 163 Notice of Appeal 167 Miranda Brief in Support of Motion to Suppress Statements 169 Miranda Law Person is Subject to 173 2nd Request for Hearing 177 Failure to Timely Prosecute 179 Minimum and Maximum Fines MV Offenses 183 Points in Motor Vehicle Violations 231 Pre-Trial Intervention to Dismiss Criminal Charges 233 Municipal Court Appeals 235 DWI Cross Examination Questions 241 Hearsay Not Admissible at Trial in Municipal Court Based on Crawford Decision 245 Pamphlet, Your Rights in Municipal Court 249 Be Not Guilty 251 Criminal Indictable and Disorderly Offense Penalties 255 Minimum Mandatory Fines and Penalties Relating to Selected  Motor Vehicle Offenses 257 Speeding and Radar 275 Suspended Licenses: Dont Be Caught Off Guard as a Defense  Attorney 277 Defense to Possession of Drugs and Controlled Substances 279 Driving Without Insurance Defenses 281 Preparation for the Municipal Court Case 283 Plead Guilty? Nah, Defend DWI Charges! 293 Memo re: Attorney General Guideline: Prosecution of DWI &  Refusal Violations 295 Court Code Listing MVC 321 No Point Violations 325 Crash Accident Report Abbreviations 327 Tae Kwon Do Martial Arts Training for Attorneys 335 New Law Finally Establishes a Conditional Dismissal Program  in Municipal Court 337 Brief in Support of Motion to Dismiss Refusal 343 Notice of Motion to Compel the Prosecutor to Fingerprint and DNA Test Evidence Seized 345 Certification to Compel the Prosecutor to Fingerprint and DNA Test Evidence Seized 347 Order 348 Letter re: No Representation 349 Certification of Victim 351 Letter re: Summons/Criminal Statutes 353 Letter re: Additional Fees & Appointment 355 Letter re: Letters of Reference/Pre-Sentence Report 357 Letter Requesting Hearing Notice 358 Request to Adjourn so Defendant Can Retain Attorney 359 Scientific and Medical TestsBlood and Urine Documents  Requested 361 Letter re: Arrest Stop Video to Client 365 Recommend DWI Expert to Client 367 Objection to Alcotest Results Where No Expert Testimony Provided 369 What Your Attorney Can Do For You 371 Criminal Flat Fee Agreement to Provide Legal Service 375 Field Sobriety Records Request and OPRA Request 379 Letter re: Recommend Substance Abuse Treatment & Inpatient 383 Letter re: Old Records 385 N.J. Municipal Court Law Review, Spring 2015 387 N.J. Municipal Court Law Review, Summer 2015 391 Additional Vercammen Information [See Vercammen on CD]  Articles/Forms/NJ Municipal Law Review Articles  Orders/Forms  John Menzel, Esq. 395 Discovery Order (Alcotest) 395 Discovery Order (Blood/DRE) 405 Client Fee Agreement 411 First Contact With Prospective Clients 413 Client Interview Form 415 Client Questionnaire 435 Letter to Insurance Company 459 Additional Menzel Material on CD: Chun material [see Menzel/Chun on CD] 02-13-07 Special Masters Report 11-08-07 Special Masters Report 03-17-08 State v. Chun 09-13-13 M-1538, 1539, 1540 Driving While Refused, Suspended, Revoked  or Prohibited: N.J.S.A. 39:3-40 PowerPoint Presentation Damian A. Scialabba, Esq. 461 About the Panelists 471

Testifying in a Municipal Court Case NJ

 

Testifying in a Municipal Court Case

Testifying in a Municipal Court Case Compiled by KENNETH A. VERCAMMEN, Esq. of Edison from various sources Courts, Police and Prosecutors have an increased commitment to addressing the needs of litigants. You may be unfamiliar with court procedures and have fears and uncertainties about what is expected or required of being a litigant. This article, compiled from suggestions of prosecutors offices, provides a brief explanation of what to expect in court. Under the New Jersey Court Rules, a New JerseyAttorney can negotiate with the Prosecutor to attempt to reduce penalties. However, the Prosecutor is not required to offer a plea bargain. The person charged is not required to accept a plea bargain. Therefore, the case will be scheduled for a trial. The decision on whether of not to testify at trial is solely the defendants. That decision cannot be made by the attorney. Preparing for Court. You are reminded that every time you go to Court or come to your attorneys office, you should bring your entire file with all documents and letters you have, plus everything received from our office, the Court, police, or DMV/MVC applicable to your case. In addition to bringing your file, on the day of court we recommend that you bring a magazine or some light reading because the courts often take recesses and delays often occur. Many courts will not let you operate a cell phone in the courtroom. You must be promptly present in court and prepared to proceed at that time. Please call the court or your attorney approximately 24 hours before this hearing to confirm that the court has not adjourned your hearing. When you arrive, please check in. Hearing times are often delayed. If by chance, I or the attorney in my office handling the hearing is not at the hearing room when you arrive, please do not panic. We will soon arrive to handle the case. We often travel from another court. Do not call the law office if you do not see the attorney right away unless there is an emergency. Usually we will go to speak directly with the Prosecutor or Court Clerk prior to going into the courtroom. Please sit in the courtroom/hearing room close to the front row until we arrive. Do not wait in the lobby or outside. In municipal court/traffic cases/criminal , do not speak with the Prosecutor, wait for your attorney to arrive. Do not leave the court and go home until instructed by our office. Fines are expected to be paid the day of court. If you will have to pay court costs or a fine, bring a checkbook or cash. Most towns and state agencies still do not accept credit cards. COURTROOM PROCEEDINGS AT TRIAL: One of the fundamental rules in a criminal case is that both the prosecution and defense have an opportunity to question the litigant. There are specific rules of evidence, which must be followed by the court. At times, these rules may seem unnecessary or frustrating but they are directed toward one goal- to determine the truth in the case. Some guidelines for you to remember: GUIDELINES FOR MUNICIPAL COURT: 1. Prior to testifying, try to prepare yourself by recalling the incident in your mind, but do not memorize your testimony. 2. You are sworn to tell the truth. Tell it by answering accurately about what you know. 3. Listen carefully to the questions asked and think before speaking. If you do not understand the question, ask that it be repeated or explained. Do not look for assistance from the attorney when you are on the stand. If you need help, ask the Judge. 4. Speak clearly and loudly. 5. Answer only the question asked, directly and simply. Do not volunteer information. 6. Do not guess or speculate. If you do not know the answer, be sure to say so. If you give an estimate, make sure everyone understands you are estimating. 7. Do not answer if there is an objection. 8. Do not lose your temper. Upon cross-examination, remain calm and composed. 9. Always be courteous, even if the attorney questioning you appears to be discourteous. Being polite makes a good impression on the court and jury. Do not try to be smart or evasive. 10. Be serious in and around the courtroom. Avoid joking. 11. Neat appearance and proper dress are important. 12. If the question is about distance or time and your answer is only an estimate, be sure to say that it is only an estimate. 13. Leave the stand with confidence, knowing that you have presented the truth to the best of your ability.  Fears/Threats If you have any fears about your involvement in your case, contact your own towns local police department. On extremely rare occasions, you may receive a threat. If you are threatened, immediately contact your law enforcement agency to get immediate assistance. SUBPOENA A Subpoena is a Court Order directing you to be present at the time and place stated. You may receive your subpoena by mail or in person. When you receive a subpoena to appear in court, you are required by law to attend. Be sure to bring the subpoena to court. WHERE DO I GO?  You will find that most court notices and subpoenas will request that you report to the Court on the date set for your appearance. GET COMFORTABLE Get a good nights rest. Dress conservatively. Your normal business attire is probably about right. Be early. Give yourself a few minutes to experience the room in which you are about to testify. It is going to be a strange environment for you, so walk around. Get used to the lighting, the acoustics, and the distance your voice might have to travel. JUST THE FACTS Leave your impressions from film, television and other folklore at home. In the real world, the attorney seeking your testimony wants from you but one thing; the facts. What you saw. What you said. What you did. In limited circumstances, what you heard. Unless you are asked to do so, do not draw conclusions. Unless you were called as an expert witness, keep your opinions for another day. RULES TO REMEMBER Rule 1. If you are asked what time it is, give the time. Dont offer instructions on how to build a watch. Listen to the question, answer that question, then wait for the next one. When they run out of questions, your testimony is over. Dont answer a question you think was asked, should be asked, or want to be asked. And take your time. As with baseball and other matters of importance, there is no clock. Your testimony is very important, thats why you were called in the first place. There is no hurry. As in golf, there are no prizes for speed, just accuracy.  Rule 2. If you do not understand a question, respond by saying I do not understand the question. Have counsel rephrase the question, explain or define any word that you dont understand. Thats what you mean by I do not understand the question. Its not impolite. You are not comparing education. You just dont understand the question. If counsel cannot rephrase the question so you can understand and adequately respond, thats not your problem. Being a witness is hard enough. Rule 3. If you knew the answer some time ago, but do not recall at the moment, say I do not recall Not everyone can remember which shoes they wore the second Tuesday of last month. There is no disgrace in failing to recall certain details, especially when they are remote in time. Your testimony is very important, thats why you were called in the first place. Rule 4. If you are asked a question, and you do not know the answer, say I Do not know. Too many witnesses think they have to know, or are expected to know the answer to practically everything asked of them while on the stand. No one can be expected to know everything. If you seem to, your entire testimony may appear rehearsed and unconvincing. When you dont know, you dont know. SAY SO.. Such a reply is entirely appropriate. Rule 5. Tell the truth. You saw what you saw. You did what you did. If someone else has a different version of these events, well, someone else has a different version of these events. In the end, the judge or jury will sort it all out.  Rule 6. Be yourself. As you would converse with a friend or neighbor, speak in your own words and use your own vocabulary. Answer the questions as naturally as you can. You dont want to sound like an actor delivering memorized lines. There is no getting around it; while giving testimony, you are on stage. Everyone in the room, especially trial counsel, is watching you testify. They not only listen to your word, but also watch how you present them. You must be as relaxed and natural as possible. Body language is a powerful communication tool. Use it properly. Speak up. What you say will be taken down by a tape recorder, sometimes later transcribed onto a printed page. This is called making a record. Consider two limitations in this process; 1. Your testimony has to be verbal. It is difficult to transcribe a nod of the head or shrug of the shoulders. Dont spread your hands apart and claim About this much. If the answer is two and one half feet, say so. 2. Only one person can speak at a time. Pace your responses so as to avoid talking over the attorney asking the questions. HELP YOURSELF Give straight, direct and specific answers whenever possible. Depending upon the question being asked, try and avoid needless qualifiers like In my opinion, I guess, I think, and I believe JUST THE FACTS. Any reservations displayed on direct examination will come back to you on cross. If the answer is yes, blue or I dont know, SAY SO. Dont guess, exaggerate, or speak in broad, sweeping terms. Try not to generalize, and do not explain anything unless specifically instructed to do so. If you make a mistake, or give the wrong answer, STOP.. As soon as you realize you have given the wrong information, or left something out, STOP. Tell the attorney you made a mistake, say I made a mistake. May I correct myself. Clear the record then and there. It is much better than to have the opposing attorney question you about it later on cross examination. If there is an objection, or if the judge or another attorney interrupts your testimony; FREEZE. Do not say another word until instructed to do so. The lawyers will argue out the problem on the spot. Wait until told to proceed. There is no need to squeeze in an answer during this process. Let the lawyers work it out, thats what they do. HELP THE COURT Some attorneys or prosecutors lose their manners right after the bar exam. Some have the personality of a briefcase. For others, this would be an improvement. Do your best anyway, and try to be polite. If you have a bad temper, leave it in the elevator. Do not engage in a battle of wits. You cant win. Its not because you dont get to ask questions. You are gathered for the purpose of finding the truth, not to judge who can best exchange sarcastic remarks.