Pre Trial Motions in Drug Case

1. No discovery Send a discovery letter/letter of representation to both the District Attorney/Municipal Prosecutor, Police Records Bureau of the law enforcement agency which issued the complaint and the Court Clerk. Failure of the state to provide discovery may be grounds to dismiss the charges.

2. Suppression A timely Motion to Suppress Evidence must be made. Do it immediately; do not wait to receive discovery.

3. Subpoena witnesses defense counsel should subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one half inch long. Cross examination is pivotal in determining credibility. Failure to subpoena a witness may be malpractice if your necessary witness is not present.

4. First Offender programs Many states provide that a person not previously convicted of a drug offense and who has not previously been granted "supervisory treatment" may apply for a conditional discharge/dismissal of charges. The court, upon notice to the prosecutor, may suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).

5. No lab tests The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate. If the State intends to proffer the lab certificate at the trial, a notice of an intent to proffer that certificate, and all reports relating to the analysis of the CDS, should be served by the state on defense counsel. This includes an actual copy of the lab certificate. Defense counsel must notify the prosecutor in writing of defendant's objection to the admission into evidence of the certificate, plus set forth the grounds for objection. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence. If the state can't introduce lab results, the state can't use.

6. Chain of Custody The State must then establish a chain of custody. The prosecutor's witness will call additional witnesses to prove the locations of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug. Defense counsel can contest the chain of custody.

7. Confession excluded If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request an Evidence rule hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. 8. Constructive possession not proven The burden of primary possession/constructive possession remains on the State.

The State must prove it was defendant's conscious intention to obtain or possess the item while being aware it was cocaine. Defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance.
See http://www.njlaws.com/defense_to_possession_of_drugs.html

NJ Inheritance Tax

Currently, the law imposes a graduated Transfer Inheritance Tax ranging from 11% to 16% on the transfer of real and personal property with a value of $500.00 or more to certain beneficiaries.

The Transfer Inheritance Tax recognizes five beneficiary classes, as follows: Class A - Father, mother, grandparents, spouse, child or children of the decedent, adopted child or children of the decedent, issue of any child or legally adopted child of the decedent and step-child of the decedent. Class B - Eliminated by statute effective July 1, 1963. Class C - Brother or sister of the decedent, including half brother and half sister, wife or widow of a son of the decedent, or husband or widower of a daughter of the decedent. Class D - Every other transferee, distributee or beneficiary who is not included in Classes A, C or E.

Class E - The State of New Jersey or any political subdivision thereof, or any educational institution, church, hospital, orphan asylum, public library or Bible and tract society or to, for the use of or in trust for religious, charitable, benevolent, scientific, literary or educational purposes, including any institution instructing the blind in the use of dogs as guides, no part of the net earnings of which inures to the benefit of any private stockholder or other individual or corporation; provided, that the exemption does not extend to transfers of property to such educational institutions and organizations of other states, the District of Columbia, territories and foreign countries which do not grant an equal, and like exemption on transfers of property for the benefit of such institutions and organizations of this State.

Rate The Transfer Inheritance Tax rates depend on the amount received and the relationship between the decedent and the beneficiary. No tax is imposed on class A beneficiaries (father, mother, grandparents, descendants, spouses, civil union partners, or domestic partners). Class C beneficiaries (brother or sister of decedent; husband, wife, or widow(er) of a child of decedent; civil union partner or surviving civil union partner of a child of decedent) are taxed at 11%–16%, with the first $25,000 exempt. Class D beneficiaries (not otherwise classified) are taxed at 15%–16%, with no tax on transfers having an aggregate value of less than $500. Charitable institutions are exempt from tax
http://www.njlaws.com/inheritance_tax.html

Leaving scene of an accident ticket

http://www.njlaws.com/129d.html
39:4-129(b) Leaving the scene of
accident involving
damages to attended
vehicle or property
First offense: Fine or
imprisonment not exceeding 30
days, or both, and suspension of
driving privileges for six months
from date of conviction
$200 $400
plus 2 NJ MVC points
plus 2 car insurance points

Subsequent offense: Fine or
imprisonment not less than 30
days nor more than 90 days, or
both, and suspension of driving
privileges for 1 year from date of
conviction
$400 $600
39:4-129, 39:4-130 Leaving Scene of Accident and Failure to Report, Car Accident

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. There is mandatory 6 month loss of license for leaving the scene. Our goal as the attorney is to negotiate with the prosecutor to reduce down to a violation with no suspension.
39:4-129   Action in case of accident.
 39:4-129 . (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section.  Every such stop shall be made without obstructing traffic more than is necessary.  Any person who shall violate this subsection shall be fined not less than $2,500 nor more than $5,000, or be imprisoned for a period of 180 days, or both.  The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section.
More info at http://www.njlaws.com/leaving_the_scene.html
In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State.

Improper Use of Power of Attorney

http://www.njlaws.com/Fiduciary_Duties_Obligations_and_Liabilities.html
Breach of fiduciary

The New Jersey Supreme Court has described the elements of a claim for breach of fiduciary duty as follows:
The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position. A fiduciary relationship arises between two persons when one person is under a duty to act for or give advice for the benefit of another on matters within the scope of their relationship. Restatement (Second) of Torts§ 874 cmt. a (1979) . . . . The fiduciary’s obligations to the dependent party include a duty of loyalty and a duty to exercise reasonable skill and care. Restatement (Second) of Trusts §§ 170, 174 (1959). Accordingly, the fiduciary is liable for harm resulting from a breach of the duties imposed by the existence of such a relationship. Restatement (Second) of Torts § 874 (1979).
[McKelvey v. Pierce, 173 N.J. 26, 57 (2002) (quoting F.G. v. MacDonell, 150 N.J. 550, 563-64 (1997)).]
   Financial exploitation of older persons, including the systematic depletion of bank accounts or other resources for the benefit of the abuser, has been tagged the "crime of the 90s."' The number of financial exploitation cases will only continue to rise as the population continues to age. Despite the increase in financial abuse cases, law enforcement officials remain reluctant to pursue perpetrators of abuse, traditionally viewing the situation as a family matter best resolved by civil litigation.
 Because an agent owes a fiduciary duty to his or her principal, a cause of action for breach of that  fiduciary duty may redress a wide variety of aberrant conduct by an agent. An agent is required to act for the advancement of the interests of the principal. The agents may not serve or acquire any private interest of his or her own that is adverse to the interests of the principal without the principal's consent.  The duty of the agent to the principal is one of utmost good faith and loyalty. Furthermore, agents, as fiduciaries, are required to make full disclosure to their principals of all information material to a transaction. An agent that breaches his or her fiduciary duty may be liable in tort. All of the traditional tort damages are available, including punitive damages where conduct is wanton or willful. An agent who is dishonest may also forfeit his or her right to compensation for those duties.

  Conversion
 Conversion is the wrongful or unauthorized exercise of dominion or control over a chattel. A conversion action is a tort. The tort of conversion is "bottomed upon a tortious interference with possessory rights."
 Under the common law, an agent has a duty to account to his principal. An agent must keep and render accounts and, when called upon for an ac- counting, has the burden of proving that she or he properly disposed of funds that she or he is shown to have received for her or his principal. The relationship between a principal and an attorney-in-fact can be analogized to the relationship between a trust beneficiary and trustee. Thus, the agent bears the burden of proving that he or she has properly disposed of funds.
 The elements of a cause of action for breach of fiduciary duty are:
(1) Plaintiff and Defendant share a relationship whereby:
(a) Plaintiff reposes trust and confidence in Defendant, and
(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or protect Plaintiff;
(2) Defendant breaches its duties to Plaintiff; and
(3) Plaintiff suffers damages.
     The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.

Handicapped Parking Tickets

NEW JERSEY HANDICAPPED PARKING LAWS
-Prohibit parking motor vehicles in handicapped spaces without a special vehicle identification card; mandate initial and subsequent fines of $250 each and up to 90 days of community services (C.39:4-197.(3)c).
- Authorize municipalities to establish handicapped spaces in front of residences, schools, hospitals, public buildings, and in shopping and business districts (C.39:4-197.5).
Municipalities may establish accessible spaces in front of residences, schools, hospitals, public buildings, and in shopping and business districts. (C.39:4-197.5)
- Municipalities may establish accessible parking zones in front of residences occupied by people with disabilities, unless such parking interferes with the normal flow of traffic. (C.39:4-197.6)
-Enable enforcement officers to enforce handicapped parking laws on both public and private property (C.39:4-138.o).
-Authorize municipalities to set up parking enforcement units that concentrate on shopping centers and malls (C.39.4-197.9).
- Authorize eligible people with disabilities to request law enforcement officers to arrange for the removal and storage of motor vehicles unlawfully parked in handicapped parking spaces or zones (C.39:4-207.7).Temporary Placards (see Fig. 3) can be granted for short-term mobility impairments. Written medical certification from a qualified practitioner is required. Temporary Placards are valid for six months, are renewable one time at the discretion of the issuing authority, and are issued by the chief of Police of each municipality. (C.39:4-206)
• Parking motor vehicles in accessible spaces without special vehicle identification is prohibited and punishable with an initial fine of $250 and subsequent fines of at least $250 and up to 90 days of community service. (C.39:4-197(3)c)
• Law enforcement officers may enforce accessible parking laws on both public and private property. (C.39:4-138.o)
• Municipalities may set up parking enforcement units that concentrate on shopping centers and malls. (C.39.4-197.9)
• Eligible individuals with a disability may request law enforcement officers to arrange for the removal and storage of motor vehicles unlawfully parked in accessible parking spaces or zones. (C.39:4- 207.7)
• Access to parking spaces, curb cuts, or other improvements designed to provide accessibility, shall be unobstructed. Owners or controllers of public parking areas must remove snow or ice from these areas within 24 hours after the weather condition causing the snow and/or ice ceases. Violation of this act is punishable with penalties of $500 to $1,000. (C.394:4-207.9)**
RKING IN NEW JERSEY
NJ Statutes outline the following:
• Every application for the issuance or renewal of a “person with a disability identification card”  required every three years, must include medical certification from a qualified practitioner that the qualifying disability continues to exist. (C.39:4-205)
• The “Person with a Disability Identification Card” must be in the vehicle or with the qualified person at all times as proof of disability. This card is for the sole use of the individual with a disability and is non—transferable. Abuse or misuse of this privilege will be cause for immediate revocation of the ID card, placard and plates and fines of at least $250.00. (C.39:4-205)
• Permanent Placards are required to be renewed every three years and will clearly display the date on which they shall become invalid. (C.39:4-206)

Guardianship of Adults

Action for Guardianship of a Mentally Incapacitated Person, Rule 4:86
According to Disability Law, A Legal Primer published by the New Jersey State Bar Association, "A guardian is a person appointed by a court to make financial and personal decisions for a person proven to be legally incompetent." p11

1. When is a guardian needed? A guardian is needed when an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. The person for whom a guardian is appointed is called a "ward". Disability Law at p11

Recently the legislation changed the designation of "mental incompetent" to "incapacitated person" in all laws, rules, regulations and documents.

2. What rights does a incompetent lose? Unless a Court orders otherwise, a ward/ incompetent does not have the right to decide where to live, spend money, use property, appear in Court or undergo medical treatment without the approval of his or her guardian. An unmarried incompetent also loses the right to marry.

3. How does somebody become the guardian of another? Guardians are appointed by Courts after the person in need of guardianship is proven incompetent. Guardianship actions can be brought under the general incompetency statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people who receive services from the State Division of Developmental Disabilities. N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent or are parents of an unmarried incompetent can choose who will become the guardian after the guardians die and include a clause designating their successor in their wills. Disability Laws p12 Under the general incompetency statute, a Complaint requesting Guardianship must be filed in the Superior Court, plus a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent plus reasons why the incompetent is no longer able to manage their affairs. Affidavits of two doctors are also needed. The Court will appoint a temporary attorney to interview the incompetent and prepare a report to the Court.

4. Who can be a guardian? Generally, a close relative or a person with a close relationship to the proposed incompetent who will act to protect the incompetents best interests can be guardian. when a close friend or relative is not available, the Court may appoint the Public Guardian (for persons over 60) or an Attorney to serve as guardian.

5. What are the rights of the proposed incompetent prior to hearing? The proposed incompetent is entitled to receive advance notice of the guardianship hearing, to be represented by a lawyer and to present a defense at the hearing.

6. What happens if the incompetent regain the ability to manage his or her affairs? The incompetent came then go back to Court and ask to be made his or her own guardian again, but first must show that he or she has regained "sound reason".

7. When is a guardian not needed? Just because a person has a disability, does not mean that they need a guardian. A guardian is not needed if a person can make, and understands the nature of the decisions, and communicate the decisions to others. A guardian is not required for someone who has a physical disability, but who can manage his or her affairs, and is not needed if a person merely has a problem managing money or property. Disability Law p12
http://www.njlaws.com/action_for_guardianship.html

Trusts within Wills to protect children's assets

Set up Trusts within Wills to protect Assets of children under age 30

Example  The principal held in each child's share shall be distributed to him or her upon his or her attaining the age of thirty (30) years.
 In the event either of my children have not attained the age of thirty (30) years, if he or she has attained or upon his or her attaining the age of twenty two (22) years, my Trustee shall distribute one-third (1/3) of the principal held in such child's share to him or her.
 If either child has attained or upon attaining the age of twenty five (25) years, an additional one-half (1/2) of the balance of the principal held in such child's share shall be distributed to him or her.  Upon attaining the age of thirty (30) years, the balance of the principal held in such child's share shall be distributed to him or her. More info at http://www.njlaws.com/wills_children_and_guardians.htm

 There may come a time when a parent is  unable, due to physical or mental incapacity, to take care of their minor children. In these circumstances, those caring for the children as well as the courts will need direction. By writing and executing a Will which includes instructions on guardianship one may select someone, either individually or jointly,  with the legal authority to act for minor children and assume control over the assets of the children. Estate planning, which includes the execution of a Will, is just as important for young families with minor children as they are for senior citizens.
Guardians
     Most individuals appoint their spouse to act as Guardian of the person and property of their minor children.  It is suggested that your Will include a clause which provides that in the event your spouse predeceases you, or is unsuitable or ceases to act as Guardian of the person and property of your minor children, you appoint a trusted family member or close friend to act as successor Guardian of the person and property of your minor children.

Trustee
     Select a trusted person, a close relative or friends, who will invest and hold your children's money.  In your Will you can  instruct the Trustee to apply amounts of income and principal as they, in their sole discretion, deem proper for the health, maintenance, education, welfare, or support of your children or other minors. Direct that the trustee shall accumulate any income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of majority or whichever age you select.