MCNL Fall 08

New Web Blogs aka LawBlawgs on Criminal Law -NJ Criminal Law http://njcriminallaw.blogspot.com/ -Law Enforcement caselaw http://lawenforcementcaselaw.blogspot.com/ -Editor- Michael Rowan, a Law Student at Hofstra Law and High School valedictorian -NJ Elder Law http://elder-law.blogspot.com/ -Juvenile Justice http://juvenile-justice-codes.blogspot.com/ -NJ Traffic Laws http://njtraffic.blogspot.com/ -Criminal Articles http://criminalarticle.blogspot.com/ -Wills & Estate Administration http://njwills.blogspot.com/ -Motor Vehicle Articles http://njmotorvehicle.blogspot.com/ -Criminal Statutes and Jury Charges and in New Jersey http://criminal-jury.blogspot.com/ - NJ Laws Newsletters by Kenneth Vercammen http://njlaws1.blogspot.com/ -NJ Traffic Law & Municipal Court

Kenneth Vercammen, Esq. NJ Municipal Cout Law Review 2053 Woodbridge Ave. Edison, NJ 08817

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INDEX

1. 5 Year Post Conviction Limit can be Released in DWI. State v.

Bringhurst .......................................P 1 2. If Miranda not Honored, Statement Suppressed. State v. BurnoTaylor................................................P 1 3. No Privacy on Work Computer, State v. M.A. ...................................P 1 4. Juveniles can be Included on Prohibited List on Public Housing. In the Interest of X.B.........................P 1 5. Municipal Court cannot Access Penalty for Consumer Fraud. State v.

Tri-Way Kars, Inc .........................P 2 6. Penalty cannot be enhanced if Prior Statute was Ambiguous. State v. Gelman .......................................P 2 7. Failure of Owner to Cooperate with Insurance Company can Void Coverage. Hager v. Gonsalves.....P 2 8. New Statute: License Suspension not mandatory if found guilty of drug possession and apply for Conditional Discharge .........................P 2 9.Photo: Elder Law 2008 Expanding and Marketing an Elder Law Practice............................................P 3 Seminar: Cross Examination of Law Enforcement & Professionals ..................................P 3 Free Office Space for AttorneyEdison, NJ ......................................P 4 New Web Blogs aka Law Blawgs on Criminal Law...................................P 4 We Need Your E-mail form ........P 4 Subscription Form.........................P 4

Fall 2008

Major Changes in Criminal Municipal Court Law

1. 5 Year Post Conviction Limit can be Released in DWI. State v. Bringhurst 401 NJ Super. 421 (App. Div. 2008)

The court concluded that post-conviction relief (PCR) petitions brought pursuant to State v. Laurick, 120 N.J. 1, cert. Denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed.2d 413 (1990), must comply with Rule 7:10-2, and are subject to the five-year limit contained in Rule 7:10-2 (g)(2). However, those time limits may be relaxed to prevent an injustice. Because a Laurick PCR cannot be brought until there is a second or subsequent DWI conviction, the time bar should not mechanically be applied to deny the petition. However, to obtain the benefit of relaxation of the time limit, a defendant must put forth a prima facie case for relief in his petition itself.

In this case, where defendant’s prior, uncounseled conviction was allegedly rendered ten years earlier, he failed to put forth a prima facie case for relief Therefore, its denial was appropriate.

2. If Miranda not Honored, Statement Suppressed. State v. Burno-Taylor 400 NJ Super. 581 (App. Div. 2008)

Because defendant’s right to remain silent was not scrupulously honored, the trial court should have granted defendant’s motion to suppress his statement.

3. No Privacy on Work Computer. State v. M.A. 402 NJ Super. 353 (App. Div. 2008)

Defendant stole over $650,000 from his employer. A warrantless search of two workplace computers, conducted pursuant to the employer’s consent, revealed evidence confirming the theft. Defendant appeals from the denial of his motion to suppress evidence seized from the computers, contending that he had a right to privacy in the personal information he stored in the computers. We concluded defendant had no reasonable expectation of privacy under the Fourth Amendment or the New Jersey Constitution in the contents of the computers, including the personal information.

4. Juveniles can be Included on Prohibited List on Public Housing. In the Interest of X.B. 402 NJ Super. 23 (App. Div. 2008)

X.B., a juvenile, was arrested for trespassing on public housing property, despite being notified that he was on a list prohibiting him from being on the housing complex property. Following his adjudication as a delinquent, he appealed, arguing his inclusion on the list was unconstitutional as applied to him.

The court affirmed the trial court’s finding of delinquency and found no constitutional infirmity as applied to him. The court did, however, caution public entities who maintain such lists to consider adopting regulations regardMunicipal Court Law Review Fall 2008 Kenneth Vercammen, Editor 732-572-0500

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ing one’s placement on and removal from the list and establishing a procedure whereby one can challenge placement on the list.

5. Municipal Court cannot Access Penalty for Consumer Fraud. State v. Tri-Way Kars, Inc. 402 NJ Super. 215 (App. Div. 2008)

The court held that a municipal court had no jurisdiction under N.J.S.A. 56:8-14 to assess a penalty for an alleged Consumer Fraud Act violation in connection with the sale of a used motor vehicle because N.J.S.A. 56:8-14 only grants jurisdiction over penalty enforcement actions.

The court also held that the Central Municipal Court of Bergen County had no jurisdiction under N.J.S.A. 56:8-14.1 to assess such a penalty because that statute expressly limits jurisdiction over penalty assessment cases to municipalities “where the offense was committed or where the defendant may be found.”

Here, the offense was committed in South Hackensack where defendant conducted business and we concluded that this specific statute trumped the general power of the Assignment Judge to refer cases to the Central Municipal Court under N.J.S.A. 2B:12-1(e).

Finally, the court provided guidance for future actions respecting the insufficiency of the municipal court “Complaint-Summons SF-1 and SF-2” to adequately provide notice of the essential facts of a penalty assessment action, as opposed to a penalty enforcement action where the use of these forms has been approved by the Administrative Office of the Courts.

6. Penalty cannot be enhanced if Prior Statute was Ambiguous. State v. Gelman 195 NJ 475 (2008)

The current N.J.S.A. 2C:34-1 is insolubly ambiguous concerning whether a defendant can be charged with the fourth-degree crime of prostitution based on a prior petty disorderly persons conviction under the predecessor statute. The Court is thus compelled to apply the doctrine of lenity and dismiss the indictment.

7. Failure of Owner to Cooperate with Insurance Company can Void Coverage. Hager v. Gonsalves 398 NJ Super. 529 (App. Div. 2008)

The failure of both the operator and the owner of a motor vehicle to cooperate with the vehicle’s insurer, thus preventing the insurer from ascertaining whether the operator was a permissive user at the time of the subject accident, may provide sufficient grounds for the insurer to disclaim coverage.

Municipal Court Law Review Fall 2008

Kenneth Vercammen, Editor

8. New Statute: License Suspension not mandatory if found guilty of drug possession and apply for Conditional Discharge

New law effective September 10, 2008 establishes compelling circumstances exception to mandatory driver’s license suspension under conditional discharge statute; allows court to revoke remainder of suspension for compelling circumstances

This law allows a court to make an exception to the mandatory driver’s license suspension under the State’s conditional discharge statute if it finds that compelling circumstances warrant an exception. The law specifies that compelling circumstances exist if the suspension of the person’s driving privileges will result in extreme hardship and alternative means of transportation are not available.

Under current law, a person with no previous convictions for a State or federal drug offense who is charged with or convicted of a disorderly persons or petty disorderly persons offense under the State’s controlled dangerous substance or drug paraphernalia law, as set out in chapters 35 and 36 of the Criminal Code (Title 2C), may be placed by the court under supervisory treatment subject to certain terms and conditions. If the person complies with these terms and conditions and does not commit another offense, the court will dismiss the charges. This old law requires the court to impose a six-month to two-year driver’s license suspension on persons under supervisory treatment who were found guilty or have pleaded guilty to the offense. This law makes the suspension discretionary if the court finds compelling circumstances warrant an exception.

Prior to enactment of P.L.2005, c.343, every person convicted of an offense concerning controlled dangerous substances or drug paraphernalia was required to forfeit his or her driving privileges for a period of six months to two years. P.L.2005, c.343 changed the law to allow the court to refrain from imposing the driver’s license suspension if compelling circumstances warrant an exception. This law extends the compelling circumstances exception to persons who proceed under the conditional discharge statute.

The law also clarifies that a person whose driver’s license is suspended or postponed due to a controlled dangerous substance or drug paraphernalia conviction may seek to have the suspension or postponement revoked based on compelling circumstances warranting an exception that was not raised at sentencing.

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Other New Laws

Call KENNETH VERCAMMEN & ASSOCIATES, PC

SCS for S-367, 503/ACS for A-1772, 1598

Upgrades penalties for tampering with witnesses and informants; upgrades hindering apprehension or prosecution under certain circumstances September 10, 2008. For details on fines & jail, go to: www.njlaws.com/traffic_minimum_penalties.htm Major recent changes in Court Rules: Private prosecutors prohibited Post conviction motions must be filed within 5 years More details on website: www.benotguilty.com

ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax)

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Elder Law 2008- Expanding and Marketing an Elder Law Practice

Free Office Space for Attorney Edison, NJ Are you hardworking and aggressive?

Law Office has space sharing opportunity for new lawyer to get experience and go to court.

Attorney will be provided with their own office to start their practice, rent-free. In return they will handle municipal court appearances, Will signings and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week.

Represent client’s in court and get trial experience. Excellent opportunity to jump-start your career.

You will get to represent people in Municipal Courts in Middlesex, Union and Monmouth County and meet the top Prosecutors and Judges. Must be admitted in NJ and have a car.

Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans and public defender clients. Follow up contact calls with clients, courts, prosecutors and bar associations. Excellent mentoring position for the right attorney.

Visit our website: www.njlaws.com to learn about our office.

The following is included with office use: 1. Desk space on our 2nd floor 2. Use of 2nd floor conference table for meetings or depositions by appointment 3. Use of our audiotape and video library.

4. Use of the front room reception area 5. Ability to put a file cabinet in basement to store your old file 6. Lighting/ Utilities 7. Bathroom Supplies 8. Landscaping / Snow Removal 9. Cleaning of Common Area 10. Hot water, municipal water/sewer charge paid Municipal Court Law Review Fall 2008

Kenneth Vercammen, Editor

Kenneth Vercammen, Esq Charles P. Sabatino Parag Patel, Esq, Jay Foonberg Saturday, August 9, 2008 2:00 - 3:30 p.m.

American Bar Association Annual Meeting, New York City Hilton New York For Materials, send an email to Kenvnjlaws@verizon.net CROSS EXAMINATION OF LAW ENFORCEMENT AND PROFESSIONALS Friday November 7, 2008 8:30 am Disney Boardwalk Resort, Orlando, FL Speakers: Kevin McCann, Esq. Arnold Fishman, Esq. Topics: * Recent Cases Involving DWI or Drugs

* Cross-Examination of experienced witnesses

* Blood Test Admissibility in a DWI or Drug

Case

* Suppression and other Pre-trial Motions

* Field Sobriety Tests New Jersey State Bar Association Mid Year Meeting Program- Orlando, Florida MUNICIPAL COURT PRACTICE SECTION, NJ INSTITUTE FOR CONTINUING LEGAL EDUCATION (ICLE),

For details, call NJSBA at 732-249-5000 for meeting registration.

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