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 is author of the ABA "Criminal Law Forms" book. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. Ken 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.
New clients to email us evenings and weekends go to www.njlaws.com/ContactKenV.htm
More info at www.njlaws.com
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
http://www.njlaws.com/

Monday, November 21, 2016

STATE OF NEW JERSEY IN THE INTEREST OF A.R. A-2238-14T3

STATE OF NEW JERSEY IN THE INTEREST OF A.R.
          A-2238-14T3
Appellant, a fourteen-year-old juvenile, was found guilty of sexually touching a seven-year old boy on a bus returning from summer camp. The alleged victim was developmentally comparable to a three-year-old. After getting off the bus, he blurted out to his mother's cousin that appellant had touched him during the ride. Eighteen days later, a detective interviewed the younger child on videotape at the county prosecutor's office. The child repeated the accusation, demonstrating it with anatomical dolls. No eyewitnesses on the bus, including the driver and aide, corroborated the incident.
At a pretrial Rule 104 hearing, the court ruled that both of the child's hearsay statements were sufficiently trustworthy to admit under the "tender years" hearsay exception, N.J.R.E. 803(c)(27). The court then queried the younger child at the start of the trial about his ability to discern and tell the truth. The court twice concluded from the child's troublesome responses that he was not competent to testify under the criteria of N.J.R.E. 601. Nevertheless, the court accepted the child's hearsay statements and trial testimony repeating the accusations, based on the so-called "incompetency proviso" in
page1image18000 page1image18160 page1image18320 page1image18480

Rule  803(c)(27),  which  treats  children  of  tender  years  as
available witnesses even if they are not competent to testify.
We conclude that the younger child's statements during his recorded interview with the detective were "testimonial" under the Confrontation Clause, as construed by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. The objective "primary purpose" of the interview was to elicit and preserve statements from an identified child victim of sexual abuse about wrongful acts for potential use as evidence in a future prosecution. The child's testimonial statements to the detective here are distinguishable from the non-testimonial statements that a young child victim made to her teachers at school in Ohio v. Clark, 135 S. Ct. 173 (2015).
Although appellant's counsel attempted to cross-examine the child, that exercise was inadequate to safeguard his confrontation rights, given the child's undisputed incompetency. Hence, we reverse the admission of the detective's interview and the child's in-court testimony because it violated appellant's constitutional rights. However, as appellant concedes, the child's spontaneous assertion after getting off the bus was not testimonial under the Confrontation Clause and was properly admitted. We remand for the trial court to reconsider the proofs in light of our determinations. 

Sunday, September 25, 2016

STATE OF NEW JERSEY IN THE INTEREST OF JUVENILE, I.C. A-5119-13T1

STATE OF NEW JERSEY IN THE INTEREST OF JUVENILE, I.C. 
A-5119-13T1 
In this appeal and cross-appeal, we address the issue of whether a juvenile was entitled to credit on his suspended sentence for the time he spent in a residential community home program as part of his probationary sentence to the Juvenile Intensive Supervision Program ("JISP"). We also consider whether the juvenile should have been granted credit on his sentence for the period during which he participated in the JISP following his completion of the community home program. 

Based upon our review of the record and applicable law, we hold that the juvenile was not entitled to credits for either of these periods. Therefore, we affirm the trial judge's decision denying the juvenile's request for credits for his time in the community home program, and reverse the judge's decision granting the 

Sunday, August 28, 2016

new rule5:22-5. Remand to the Family Part

5:22-5. Remand to the Family Part
(a) Remand with Consent of Parties. With the consent of the juvenile defendant and the
prosecutor, at any point in the proceedings subsequent to the decision ordering waiver, the
Criminal Division may remand to the Family Part if it appears that:
(1) the interests of the public and the best interests of the juvenile require access
to programs or procedures uniquely available in the Family Part; and
(2) the interests of the public are no longer served by waiver.
(b) Remand for Conviction ofNon-Waivable Offense. If a juvenile is not convicted of
an offense set forth in N.J.S.A. 2A:4A-26. l(c)(2), a conviction for any other offense shall be
deemed a juvenile adjudication and be remanded to the Family Part for disposition, in
accordance with the dispositional options available to the Family Part and all records related to
the act of delinquency shall be subject to the provisions of section I of P.L. 1982, c.79
(C.2A:4A-60).
Note: Adopted August 1, 2016 to be effective September 1, 2016.

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new rule 5 :22-4. Proceedings After [Transfer] Waiver

5 :22-4. Proceedings After [Transfer] Waiver
W Procedure. Whenever a juvenile [case] is referred to another court as provided by R.
5:22-1 or R. 5 :22-2, the action shall proceed in the same manner as if it has been instituted in that
court in the first instance[.], and shall be subject to the sentencing provisions available to that
Qi) Custodial Sentence Upon Conviction. Upon conviction for any offense that is
subject to waiver pursuant to N.J.S.A. 2A:4A-26. l(c)(2), there shall be a presumption that the
juvenile shall serve any custodial sentence imposed in a State juvenile facility operated by the
Juvenile Justice Commission until the juvenile reaches the age of 21, except as provided in
N.J.S.A. 2A:4A-26.l(t).
Note: Source-RR. (1969) 5:9-S(e). Adopted December 20, 1983, to be effective
December 31, 1983; caption amended, text amended and designated as paragraph (a) with
caption added, and new paragraph (b) adopted August 1, 2016 to be effective September 1, 2016.

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New rule 5:22-3. Detention Hearing after Referral

5:22-3. Detention Hearing after Referral
When a case is referred to another court as provided by R. 5:22-1 or R. 5:22-2, the court
waiving jurisdiction shall, on hearing, determine pursuant to [the criteria set forth in] N.J .S.A.
2A:4A-36[(a)1 whether detention is necessary [the juvenile, if in custody pending trial, shall be
confined in an adult or juvenile detention facility]. If detention is deemed necessary, there shall
be a presumption that the juvenile shall be detained in a county juvenile detention facility, unless
good cause is shown that it is necessary to detain the juvenile in a county jail or other county
correctional facility in which adults are incarcerated. In no case shall a juvenile be remanded to
an adult detention facility prior to the hearing provided for herein.
Note: Source-RR. (1969) 5:9-5(d). Adopted December 20, 1983, to be effective
December 31, 1983; caption and text amended November 5, 1986 to be effective January 1,
1987; amended August 1, 2016 to be effective September 1, 2016.

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New rule 5:22-2. Waiver ofJurisdiction and Referral without the Juvenile's Consent

New rule 5:22-2. Waiver ofJurisdiction and Referral without the Juvenile's Consent
(a) Motion for Waiver of Jurisdiction and Referral. A motion seeking waiver of
jurisdiction by the Family Part shall be filed by the prosecutor within [30] 60 days after the
receipt of the complaint, which time may [shall not] be extended [except] for good cause shown.
The motion shall be accompanied by a written statement of reasons clearly setting forth the facts
used in assessing all factors contained in N.J.S.A. 2A:4A-26. l et seq., together with an
explanation as to how evaluation of those facts support waiver for the particular juvenile.
(hl [Probable Cause; Evidence] Waiver Hearing. At the waiver [referral] hearing, the
court shall receive the evidence offered by the State and by the juvenile [, limited to the issue of
probable cause]. No testimony of a juvenile at a hearing to determine referral by this rule shall be
admissible for any purpose in any subsequent hearing to determine delinquency or guilt of any
offense. The court also shall perniit cross-examination of any witnesses. The State shall provide
proof to satisfy the requirements ofN.J.S.A. 2A:4A-26. l(c)(l) with respect to the age of the
juvenile and N.J.S.A. 2A:4A-26. l(c)(2) with respect to probable cause to believe that the
juvenile committed one of the enumerated delinquent acts. The court also shall review whether
the State considered the factors set forth in N.J.S.A. 2A:4A-26.l(c)(3). [The court also shall
permit cross-examination of any witnesses.]
(c) Factors to be Considered. The court may deny a motion by the prosecutor to waive
jurisdiction of a juvenile delinquency case if it is clearly convinced that the prosecutor abused his
or her discretion in considering the factors set forth within N.J.S.A. 2A:4A-26. l(c)(3).
[(c)] (d) Standards for Referral. The court shall waive jurisdiction of a juvenile
delinquency action without the juvenile's consent and shall refer the action to the appropriate
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court and prosecuting authority having jurisdiction pursuant to N.J.S.A. 2A:4A-26. l(c). [ under
the following circumstances:]
[(l) Judicial Discretion for Juveniles Age 14 or Older and Charged with a Chart 2
Offense. The juvenile must have been 14 years of age or older at the time of the alleged
delinquent act and there must be probable cause to believe that he or she committed a delinquent
act which if committed by an adult would constitute:]
[(A) a crime committed at a time when the juvenile had previously been adjudicated
delinquent, or convicted of:]
[1. criminal homicide, other than death by auto; or]
[2. strict liability for drug-induced deaths (N.J.S.A. 2C:35-9); or]
[3. first degree rnbbery; or]
[ 4. carjacking; or]
[ 5. aggravated sexual assault; or]
[ 6. sexual assault; or]
[7. second degree aggravated assault; or]
[8. kidnapping; or]
[9. aggravated arson; or]
[(B) a crime committed at a time when the juvenile had previously been sentenced to and
confined in an adult penal institution; or]
[(C) an offense against a person committed in an aggressive, violent, and willful manner,
other than a Chart 1 offense enumerated in N.J.S.A. 2A:4A-26a(2)(a); or the unlawful possession
of a firearm, destructive device or other prohibited weapon; or arson; or death by auto if the
juvenile was operating the vehicle under the influence of an intoxicating liquor, narcotic,
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hallucinogenic, or habit-producing drug; or an attempt or conspiracy to commit any of these
crimes; or]
[(D) a violation ofN.J.S.A. 2C:35-3 (Leader of a Narcotics Trafficking Network),
N.J.S.A. 2C:35-4 (Maintaining and Operating a CDS Production Facility), N.J.S.A. 2C:35-5
(Manufacturing, Distributing or Dispensing Narcotics), or an attempt or conspiracy to commit
any of these crimes, other than where the violation, attempt or conspiracy involves the
distribution for pecuniary gain of any controlled dangerous substance or controlled substance
analog while on any school property or within 1000 feet of such school property; or]
[(E) a crime or crimes that are part ofa continuing criminal activity in concert with two
or more persons, when the circumstances show that the juvenile has knowingly devoted himself
or herself to criminal activity as a source of livelihood; or]
[(F) theft of an automobile.]
[On a finding of probable cause for any of the offenses enumerated above, the burden is
on the prosecution to show that the nature and circumstances of the charge or the juvenile's prior
record are sufficiently serious that the interests of the public require waiver. Waiver shall not be
granted, however, if the juvenile can show that the probability of his or her rehabilitation prior to
reaching the age of 19 by use of the procedures, services, and facilities available to the court
substantially outweighs the reasons for waiver.]
[(2) Judicial Discretion for Juveniles Age 14 or 15 and Charged with a Chart 1 Offense or
with Certain Drug Offenses Committed Within a School Zone. The juvenile must have been 14
or 15 years old at the time of the alleged delinquent act and there must be probable cause to
believe that he or she committed a delinquent act that if committed by an adult would constitute]
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[(A) criminal homicide, other than death by auto; or strict liability for drug-induced
deaths; or first degree robbery; or carjacking; or aggravated sexual assault; or sexual assault; or
second degree aggravated assault; or kidnapping; or aggravated arson; or an attempt or
conspiracy to commit any of these crimes; or]
[(B) possession of a firearm with a purpose to use it unlawfully against the person of
another under subsection (a) of N .J.S.A. 2C:39-4, or possession of a firearm while committing or
attempting to commit, including the immediate flight therefrom, aggravated assault, aggravated
criminal sexual contact, burglary or escape; or]
[(C) a violation ofN.J.S.A. 2C:35-3 (Leader of a Narcotics Trafficking Network),
N.J.S.A. 2C:35-4 (Maintaining and Operating a CDS Production Facility), N.J.S.A. 2C:35-5
(Manufacturing, Distributing or Dispensing Narcotics), or an attempt or conspiracy to commit
any of these crimes; and which violation, attempt or conspiracy involves the distribution for
pecuniary gain of any controlled dangerous substance or controlled substance analog while on
any school property or within 1000 feet of such school property; or]
[(D) computer activity that would be a crime of the first or second degree pursuant to
section4 or section 10 ofP.L.1984, c.184 (N.J.S.A. 2C:20-25 or 2C:20-31).]
[On a finding of probable cause for any of these enumerated offenses, there is a
rebuttable presumption that waiver will occur. The juvenile can rebut this presumption only by
demonstrating that the probability of his or her rehabilitation prior to reaching the age of 19 by
use of the procedures, services or facilities available to the court substantially outweighs the
reasons for waiver.]
[(3) Prosecutorial Discretion for Juveniles Age 16 or Older and Charged with a Chart 1
Offense or Certain Other Enumerated Offenses. The juvenile must have been 16 years of age or
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older at the time of the alleged delinquent act and there must be probable cause to believe that he
or she committed a delinquent act that if committed by an adult would constitute J
[(A) criminal homicide, other than death by auto; or strict liability for drug-induced
deaths; or frrst degree robbery; or carjacking; or aggravated sexual assault; or sexual assault; or
second degree aggravated assault; or kidnapping; or aggravated arson; or J
[(B) possession of a firearm with a purpose to use it unlawfully against the person of
another under subsection (a) ofN.J.S.A. 2C:39-4, or possession of a firearm while committing or
attempting to commit, including the immediate flight therefrom, aggravated assault, aggravated
criminal sexual contact, burglary or escape; or J
[(C) a violation ofN.J.S.A. 2C:35-3 (Leader of a Narcotics Trafficking Network),
N.J.S.A. 2C:35-4 ~Maintaining and Operating a CDS Production Facility), or N.J.S.A. 2C:39-4.1
(Weapons Possession While Committing Certain CDS Offenses); or]
[(D) computer activity that would be a crime of the first or second degree pursuant to
section 4 or section 10 of P.L.1984, c.184 (N.J.S.A. 2C:20-25 or C.2C:20-31).]
[On a finding of probable cause for any of these enumerated offenses, no additional
showing is required for waiver to occur. Jurisdiction of the case shall be transferred
immediately. J
[( 4) Judicial Discretion for Juveniles Age 16 or 17 and Charged with Certain Drug
Offenses Committed Within a School Zone. The juvenile must have been 16 years of age or
older at the time of the alleged delinquent act and there must be probable cause to believe that he
or she committed a delinquent act that if committed by an adult would constitute J
[(A) a violation ofN.J.S.A. 2C:35-5 (Manufacturing, Distributing or Dispensing
Narcotics), or an attempt or conspiracy to commit this crime; and which violation, attempt or
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conspiracy involves the distribution for pecuniary gain of any controlled dangerous substance or
controlled substance analog while on school property or within 1000 feet of such school
property.]
[On a finding of probable cause for any such offense, there is a rebuttable presumption
that waiver will occur. The juvenile can rebut this presumption only by demonstrating that the
probability of his or her rehabilitation prior to reaching the age of 19 by use of the procedures,
services and facilities available to the court substantially outweighs the reasons for waiver.]
W, [(d)] Order to Waive Jurisdiction and for Referral [of Reference]. An order waiving
jurisdiction of the case and referring [a] the case to the appropriate court and prosecuting
authority [ and] shall [incorporate] specify therein [ not only] the alleged act or acts upon which
the referral is based, [but] and all other delinquent acts charged against the juvenile arising out of
or related to the same transaction.
[(e) Admissibility of Testimony Given at Referral Hearing. No testimony of a juvenile at
a hearing to determine referral by this rule shall be admissible for any purpose in any subsequent
hearing to determine delinquency or guilt of any offense.]
Note: Source-RR. (1969) 5:9-S(b), (c). Adopted December 20, 1983, to be effective December
31, 1983; paragraph (b)(2)(E) amended July 14, 1992 to be effective September 1, 1992;
paragraphs (a), (b)(2)(F) and (b)(4) amended July 13, 1994 to be effective September 1, 1994;
paragraphs (a) and ~b)(2)(D), (E) and (F) amended, paragraph (b)(2)(G) adopted June 28, 1996 to
be effective September 1, 1996; paragraphs (b) and (b )(1) amended, former paragraphs (b )(2),
(b)(3), and (b)(4) deleted, new paragraphs (b)(2), (b)(3), and (b)(4) added July 10, 2002 to be
effective September 3, 2002; paragraphs (b)(2)(B) and (b)(2)(C) amended, new paragraph
(b)(2)(D) adopted, paragraph (b)(3) caption amended, paragraphs (b)(3)(B) and (b)(3)(C)
amended, new paragraph (b)(3)(D) adopted July 28, 2004 to be effective September 1, 2004;
new paragraph (b) added, and former paragraphs (b ), ( c ), ( d) redesignated as paragraphs ( c ), ( d),
(e) June 15, 2007 to be effective September 1, 2007; caption amended, paragraphs (a) and (b)
caption and text amended, new paragraph ( c) adopted, former paragraph ( c) redesignated as
paragraph (d) and text amended, former paragraph (d) redesignated as paragraph (e) and caption
and text amended, former paragraph ( e) deleted with text relocated

New rule 5:21-3. Detention Hearings

New rule 5:21-3. Detention Hearings
Ca) Initial Detention Hearing .... no change.
(b) Probable Cause Hearing. If the juvenile is detained following the initial detention
hearing, the court shall conduct a probable cause hearing within two court days after the initial
hearing. Where a second detention hearing is required by paragraph (a), it shall be held with the
probable cause hearing. [If the prosecutor has filed a motion seeking waiver of jurisdiction
pursuant to Rule 5:22-2 or indicates an intention to file such a motion, or the court determines
based on the circumstances that such a motion is likely, the court shall permit the parties to
present evidence regarding the issues of age of the juvenile and other standards for referral which
may be addressed at the time of the probable cause hearing.] If the court determines that there is
no probable cause to believe that the juvenile has committed the conduct alleged in the
complaint, the juvenile shall be forthwith released. If probable cause is found, detention review
hearings shall be conducted as provided in paragraph ( c ).
(c) Detention Review Hearing .... no change.
(d) Findings .... no change.
Ce) Credit for Time Served .... no change.
Note: Source-R.R. (1969) 5:8-2(c) and (d); R. (1969) 5:8-6(d). Adopted December 20,
1983, to be effective December 31, 1983; paragraph (e) adopted November 1, 1985 to be
effective January 2, 1986; paragraph (b) amended July 14, 1992 to be effective September 1,
1992; paragraphs (a) and (e) amended July 13, 1994 to be effective September 1, 1994~
paragraph (b) amended August 1, 2016 to be effective September 1, 2016.
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