Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee,GP He was a speaker at the ABA Annual Meeting attended by 10,000 attorneys and professionals. Visit Website www.njlaws.com
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
http://www.njlaws.com/

Thursday, January 8, 2015

Stop sign ticket 39:4-144 Stopping or yielding right of way before entering stop or yield intersections


39:4-144  Stopping or yielding right of way before entering stop or yield intersections.39:4-144.  No driver of a vehicle or street car shall enter upon or cross an intersecting street marked with a "stop" sign unless:

a.The driver has first brought the vehicle or street car to a complete stop at a point within five feet of the nearest crosswalk or stop line marked upon the pavement at the near side of the intersecting street and shall proceed only after yielding the right of way to all vehicular traffic on the intersecting street which is so close as to constitute an immediate hazard. 

b.No driver of a vehicle or street car shall enter upon or cross an intersecting street marked with a "yield right of way" sign without first slowing to a reasonable speed for existing conditions and visibility, stopping if necessary, and the driver shall yield the right of way to all vehicular traffic on the intersecting street which is so close as to constitute an immediate hazard; unless, in either case, the driver is otherwise directed to proceed by a traffic or police officer or traffic control signal.

c.No driver of a vehicle or street car shall turn right at an intersecting street marked with a "stop" sign or "yield right of way" sign unless the driver stops and remains stopped for pedestrians crossing the roadway within a marked crosswalk, or at an unmarked crosswalk, into which the driver is turning.

2C:17-3 Criminal mischief.

2C:17-3  Criminal mischief.    a. Offense defined. A person is guilty of criminal mischief if he:

(1)Purposely or knowingly damages tangible property of another or damages tangible property of another recklessly or negligently in the employment of fire, explosives or other dangerous means listed in subsection a. of N.J.S.2C:17-2; or

(2)Purposely, knowingly or recklessly tampers with tangible property of another so as to endanger person or property, including the damaging or destroying of a rental premises by a tenant in retaliation for institution of eviction proceedings.

b.Grading. (1) Criminal mischief is a crime of the third degree if the actor purposely or knowingly causes pecuniary loss of $2,000.00 or more.

(2)Criminal mischief is a crime of the fourth degree if the actor causes pecuniary loss in excess of $500.00 but less than $2000.00.  It is a disorderly persons offense if the actor causes pecuniary loss of $500.00 or less.

(3)Criminal mischief is a crime of the third degree if the actor damages, defaces, eradicates, alters, receives, releases or causes the loss of any research property used by the research facility, or otherwise causes physical disruption to the functioning of the research facility. The term "physical disruption" does not include any lawful activity that results from public, governmental, or research facility employee reaction to the disclosure of information about the research facility.

(4)Criminal mischief is a crime of the fourth degree if the actor damages, removes or impairs the operation of any device, including, but not limited to, a sign, signal, light or other equipment, which serves to regulate or ensure the safety of air traffic at any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however, if the damage, removal or impediment of the device recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.

(5)Criminal mischief is a crime of the fourth degree if the actor interferes or tampers with any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however if the interference or tampering with the airport, landing field, landing strip, heliport, helistop or other aviation facility recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.

(6)Criminal mischief is a crime of the third degree if the actor tampers with a grave, crypt, mausoleum or other site where human remains are stored or interred, with the purpose to desecrate, destroy or steal such human remains or any part thereof.

(7)Criminal mischief is a crime of the third degree if the actor purposely or knowingly causes a substantial interruption or impairment of public communication, transportation, supply of water, oil, gas or power, or other public service.  Criminal mischief is a crime of the second degree if the substantial interruption or impairment recklessly causes death.

(8)Criminal mischief is a crime of the fourth degree if the actor purposely or knowingly breaks, digs up, obstructs or otherwise tampers with any pipes or mains for conducting gas, oil or water, or any works erected for supplying buildings with gas, oil or water, or any appurtenances or appendages therewith connected, or injures, cuts, breaks down, destroys or otherwise tampers with any electric light wires, poles or appurtenances, or any telephone, telecommunications, cable television or telegraph wires, lines, cable or appurtenances.

c.A person convicted of an offense of criminal mischief that involves an act of graffiti may, in addition to any other penalty imposed by the court, be required to pay to the owner of the damaged property monetary restitution in the amount of the pecuniary damage caused by the act of graffiti and to perform community service, which shall include removing the graffiti from the property, if appropriate.  If community service is ordered, it shall be for either not less than 20 days or not less than the number of days necessary to remove the graffiti from the property.

d.As used in this section:

"Act of graffiti" means the drawing, painting or making of any mark or inscription on public or private real or personal property without the permission of the owner.

e.A person convicted of an offense of criminal mischief that involves the damaging or destroying of a rental premises by a tenant in retaliation for institution of eviction proceedings, may, in addition to any other penalty imposed by the court, be required to pay to the owner of the property monetary restitution in the amount of the pecuniary damage caused by the damage or destruction.

  

39:4-97. Careless driving in NJ


39:4-97.     Careless driving   A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.

Tuesday, December 30, 2014

Kiddie dwi does not count as prior dwi offense

STATE OF NEW JERSEY, 
Plaintiff-Respondent, 
v. 
NICHOLAS J. MINOTTI, 
Defendant-Appellant. 
Decided October 27, 2014 before the Honorable Edward A. Jerejian, J.S.C. 
On appeal from Hackensack Municipal Court, Docket No. 14-21. 


 NOT FOR PUBLICATION WITHOUT THE 
APPROVAL OF THE COMMITTEE ON OPINIONS 
SUPERIOR COURT OF NEW JERSEY 
DOCKET NO: 14-21 
BMA: 003-20-14 
________________________________________________________________________ 
This is an appeal from the Hackensack Municipal Court. On November 28, 2013, the Hackensack Police Department issued Nicholas J. Minotti three summonses: (1) driving while intoxicated contrary to N.J.S.A. 39:4-50; (2) failure to maintain lane contrary to N.J.S.A. 39:4-88b; and (3) reckless driving contrary to N.J.S.A 39:4-96. On February 26, 2014, the defendant appeared before the Honorable Louis J. Dinice, J.M.C. and attempted to plead guilty to N.J.S.A. 39:4-50.14, operation of a motor vehicle by a person who has consumed alcohol but is not of legal age to purchase alcohol. (1T:2 to 9). Although the prosecutor amended the charge, Judge Dinice denied the plea on said amended charge. (1T:2-6 to 3-18). At the time of this offense the defendant was under the age of 21. (3T:12-1 to 2) 2 

Thereafter, defense counsel filed a motion for Judge Dinice’s recusal. On March 26, 2014, Judge Dinice heard defendant’s motion for recusal and the motion was subsequently denied. (2T:5-3 to 4). 
The matter was then adjourned pending defendant’s appeal to the Superior Court for immediate relief on an Order to Show Cause. (2T:10-9 to 14). On April 1, 2014, the Honorable Liliana S. DeAvila-Silebi, P.J.Crim, denied defendant’s request. 
The following day, April 2, 2014, defendant appeared with counsel before Judge Dinice for trial. (3T). At the end of trial, the defendant was found guilty of DWI and the stipulated charge of failure to maintain lane, the defendant was found not guilty of reckless driving. (3T:13-9 to 15). The defendant had a previous DWI as minor conviction, contrary to N.J.S.A. 39:4-50.14, which led Judge Dinice to sentence the defendant as a second offender. (3T:18-24 to 19-4). The Court stayed the fines pending appeal, but refused to stay the license suspension of the defendant. (3T:21-6 to 8). 
Defendant filed a timely notice of appeal to the Superior Court. This Court heard oral arguments on October 1, 2014. 
STATEMENT OF FACTS 
On November 29, 2013, Hackensack Police Officer Kley Peralta was on patrol in the city of Hackensack. (3T:6-16 to 18) Defendant was pulled over by Officer Peralta and defendant has stipulated that the Officer had probable cause to pull the defendant over. (3T:4-6 to 10; T:5-4 to 7). Subsequently, the defendant admitted that he had consumed alcohol and he was under the legal age to do so. (3T:8-4 to 6). Furthermore, Officer Peralta smelt alcohol coming from the defendant’s vehicle. (3T:8-16 to 17). 
Officer Peralta proceeded to administer field sobriety test to the defendant, the 3 

first test being the horizontal gaze nystagmus test. (3T:9-6 to 7). According to Officer Peralta, the defendant did not follow his eyes to his pen and Officer Peralta believed that the defendant refused to comply with the test. (3T:9-9 to 15). 
Next, a walk and turn test was administered on a blacktop that was free of debris. (3T:9-16 to 18). While Officer Peralta was instructing the defendant on how to perform the walk and turn test, the defendant was swaying from side to side. (3T:9-18 to 20). When conducting the test the defendant: (1) began the test prematurely; (2) stumbled on steps 1, 3, 4 and 5; (3) did not count out loud as per his instructions; and (4) turned left into the middle of the street as oppose to a complete turn. (3T:9-21 to 10-6). Officer Peralta determined that the defendant failed the walk and turn test. (3T:10-10 to 13). 
Next, Officer Peralta gave the defendant instructions and administered the one-leg stand test. (3T:10-16 to 17). During the test the defendant; (1) placed his foot down after counting to 1,001; (2) began to raise his leg and lost balance at 1,004; (3) and was swaying side-to-side throughout the 30 second test. (3T:10-17 to 25). At this point, Officer Peralta believed the defendant failed the one-leg stand test. (3T:11-1 to 2) 
When looking at the totality of the circumstances, Officer Peralta was under the opinion that the defendant was driving while under the influence of an intoxicating substance. (3T:11-5 to 16). 
STANDARD OF REVIEW 
The Appellate Division has specified that the standard of review to be used by the Superior Court Law Division when hearing a municipal appeal is de novo. R. 3:23-8a. The function of the court is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the 4 

opportunity of the magistrate to judge the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). A trial de novo requires the trier to make findings of fact. The Law Division’s role is not the appellate function governed by the substantial evidence rule, but rather an independent fact-finding function in respect of Defendant’s guilt or innocence. State v. States, 44 N.J. 285, 293 (1965); see also R. 3:23-8a. Appellate courts should defer to the credibility findings of the trial court because they are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. State v. Locurto, 157 N.J. 463, 475 (1999). 
LEGAL ARGUMENT 
POINT 1: 
DEFENDANT IS GUILTY DE NOVO OF DRIVING WHILE INTOXICATED, CONTRARY TO N.J.S.A. 39:4-50. 
The defendant argues that due to him being under the age of twenty-one (21) and the lack of an Alcotest reading, the defendant should have been given the benefit of the doubt and been convicted of DWI as a minor contrary to N.J.S.A. 39:4-50.14. 
The State argues that although defendant is under the age of twenty-one (21), there was sufficient observational evidence to convict the defendant of DWI contrary to N.J.S.A. 39:4-50. 
N.J.S.A. 39:4-50.14, states that the State must prove (1) the that individual is under the legal age to purchase alcohol, and (2) the individual has a BAC between .01% and .08%. In the instant matter defendant was never charged with that offense and 
there was no evidence presented to the court defendant’s BAC was below .08%. 
Instead, the State proved defendant was driving while intoxicated based on 5 

observational evidence. (T3). N.J.S.A. 39:4-50 provides that a person shall not “operate a motor vehicle while under the influence of intoxicating liquor.” N.J.S.A. 39:4-50(a). According to State v. Emery, a person need not be absolutely drunk to be considered under the influence, instead he just need be “imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.” 27 N.J. 348, 355 (1958). The courts will consider a wide range of factors when determining whether defendant was operating a motor vehicle while intoxicated beyond a reasonable doubt. State v. Cleverley, 348 N.J. Super. 455, 465 (App Div. 2002). When determining whether a defendant is guilty beyond a reasonable doubt and violated N.J.S.A. 39:4-50, observational evidence by itself can be sufficient. State v. Liberatore, 209 N.J. Super. 580, 589 (Law Div. 1996). 
As stated previously, the defendant was pulled over for failure to maintain lanes. (3T:4-6 to 10). Officer Peralta smelt alcohol emanating from the vehicle and the defendant admitted to the Officer that he had consumed alcohol. (3T:8-3 to 8). 
As per Officer Peralta’s testimony, the defendant did not cooperate with the horizontal gaze nystagmus test. (3T:9-18 to 20). Furthermore, the defendant failed the walk and turn test by swaying side to side during the instructions and beginning the test prematurely. (3T:9-16 to 10-13). The defendant stumbled on steps 1, 3, 4, and 5 and failed to count his steps out loud as per the officers instructions. (3T:9-21 to 10-3). Lastly, instead of fully turning around after his 9th step, the defendant turned towards the middle of the road. (3T:10-3 to 6). 
In regards to the one leg stand test, the defendant had to put his foot on the ground to maintain balance after his first count of 1,001. (3T:10-16 to 21). Upon his second 6 

attempt the defendant lost his balance at 1,004. (3T:10-21 to 22). The defendant attempted the test a 3rd time and had a noticeable sway throughout the completion of the test. (3T:10-22 to 25). 
The trial court, as well as this court analyzing the case de novo, find sufficient observational evidence that the defendant was driving while intoxicated contrary to N.J.S.A. 39:4-50. 
POINT 2 
THE TRIAL COURT ERRED WHEN THEY SENTENCED THE DEFENDANT AS A 2ND OFFENSE CONTRAY TO N.J.S.A 39:4-50. 
The defendant argues that the trial court erred when they sentenced him according to the mandated enhanced penalties for subsequent violations of N.J.S.A. 39:4-50. 
The State submits that defendant is a second offender under N.J.S.A. 39:4-50 and must be sentenced as such. 
It should be noted that are no reported cases directly addressing this issue. 
With that said, this Court takes the position that defendant’s previous violation for N.J.S.A. 39:4-50.14 requires the defendant to be under the age of twenty one (21) and have a BAC level of 0.01% but less than 0.08%, which is a distinct and separate offense involving different elements as discussed in Point 1 above. 
N.J.S.A. 39:4-50(a)(2) and N.J.S.A. 39:4-50(a)(3) contain mandatory enhanced penalties for second, third and subsequent violations. The statute involves previous convictions under New Jersey law for violation of N.J.S.A. 39:4-50 only and does not include second, third and subsequent violations for N.J.S.A. 39:4-50.14. 
Therefore, the defendant was improperly sentenced as a second offender contrary to N.J.S.A. 39:4-50 and instead should be sentenced as a first offender under that statute. 7 

POINT 3 
THE MUNICIPAL COURT WAS WITHIN THE BOUNDS OF JUDICIAL DISCRETION WHEN THEY REJECTED DEFENDANT’S PLEA AGREEMENT. 
The defendant argues that the Municipal Judge improperly interfered with the Municipal Prosecutors discretion to enter into a plea agreement to amend the charge. 
The State argues that the Municipal Judge was within its discretion when he rejected the plea agreement. 
Upon review of a judicial rejection of a proffered plea agreement, State v. Daniels states, “…the appropriate standard to be applied must be that of erroneous exercise of judicial discretion, not whether the recommended plea agreement constitutes and abuse of prosecutorial discretion.” 276 N.J. Super. 483, 487 (App. Div. 1994). A municipal judge is within its discretion when they reject any agreement in the interest of justice. State v. Marsh, 209 N.J. Super. 663, 666 (App. Div. 1996). 
All plea agreements entered into must follow the guidelines set forth by the Supreme Court. R.7:6-2(d). More specifically, in State v. Hessen the Supreme Court upheld a prohibition on plea bargaining in DWI cases. 145 N.J. 441, 454 (1996). Amending a DWI charge under N.J.S.A. 39:4-50 is a violation of the Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey. State v. Marsh, 209 N.J. Super. 663, 667 (App. Div. 1996). Such a plea offer cannot be enforced by the municipal court. Id. 
In this case, the Municipal Judge was acting within the bounds of judicial discretion and was precluded from accepting a plea to amend the charges under N.J.S.A. 39:4-50. Accepting a plea which would subsequently downgrade a meritorious offense under N.J.S.A. 39:4-50 is a clear violation of guidelines set forth in the Current N.J. 8 

Court Rules. 
Therefore, the Municipal Judge was within his judicial discretion when he rejected the plea agreement. 
CONCLUSION 
Based on the record below, and after oral argument and a de novo hearing, this Court finds that the Municipal Court correctly found the defendant guilty of Driving While Intoxicated contrary to N.J.S.A. 39:4-50 through observational evidence but the defendant was improperly sentenced as a second offender. Furthermore, this Court finds the Municipal Judge was within his discretion to deny the plea agreement. 
As such, this Court imposes the following fines and penalties: 
For violation of N.J.S.A. 39:4-50, driving while intoxicated, defendant is sentenced as follows: 
Fine: $250 
Court costs: $33 
VCCB: $50 
DDEF: $200 
SNSF: $75 
Driver License Suspension: 3 months 
IDRC: 12 hours 
For violation of N.J.S.A. 39:4-88b, failure to maintain lane, defendant is sentenced as follows: 
Fine: $56 
Court costs: $33 
Driver license points: 2 points 
______________________________ 

Date: October 27, 2014 Honorable Edward A. Jerejian, J.S.C. 

Sunday, December 21, 2014

School Bus Driver Who Left Young Child on Bus Committed Act of Neglect. New Jersey Department of Children and Families v. R.R

 School Bus Driver Who Left Young Child on Bus Committed Act of Neglect. New Jersey Department of Children and Families v. R.R. 436 NJ Super. 53 (App. Div. 2014)
    Appellant was a school bus driver. At the end of her route she did not visually inspect the bus to make sure there were no children left on board, as required by N.J.S.A. 18A:39-28. Instead, she had relied upon a school bus aide's representation there were not any children on the bus, even though in the past the driver had found the aide to be unreliable.  In fact, a five-year old was left on board after the bus driver left for the day. The child was not discovered for fifty-five minutes.

     The court affirmed the finding of the Assistant Commissioner of the Office of Performance Management and Accountability of the Department of Children and Families that the bus driver had engaged in willful and wanton conduct in violation of N.J.S.A. 9:6-8.21(c)(4)(b), for relying upon an undependable aide's representation and not personally inspecting the bus herself to determine if any children remained on board.