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. Appointments can be scheduled at 732-572-0500. He is author of the ABA's book "Criminal Law Forms".
2053 Woodbridge Avenue - Edison, NJ 08817

Tuesday, January 28, 2014

Pomianek Bias statute requires proof of defendant intended bias, not vic...

Bias statute requires proof of
defendant intended bias, not victim perception. State v. Pomianek 213
N.J. 253 (2013)
The court construed one section of
the bias intimidation statute, which defendant challenged as unconstitutional.
The court held that a conviction under N.J.S.A. 2C:16-1a(3) requires proof of
the defendant's biased intent in committing the predicate crime; proof of the
victim's perception of the crime is insufficient for a conviction. That
construction is consistent with the legislative history and necessary to avoid
holding the statute unconstitutional.

The court also construed the
official misconduct statute, N.J.S.A. 2C:30-2a, holding that under the facts of
this case defendant could be re-tried for official misconduct based on
harassment by conduct but not harassment by communication.

Cahill Sixteen-month delay for DWI inhibited defendant's speedy trial ri...

delay for DWI inhibited defendant’s speedy trial right. State v Cahill
N.J. 253 (2013)
Applying the four-factor
analysis set forth by the United States Supreme Court in Barker v. Wingo,
the sixteen-month delay between the remand of the driving-while-intoxicated
charge to the municipal court and the notice of trial deprived defendant
Michael Cahill of his right to a speedy trial and the charge must be dismissed.

Saturday, January 25, 2014



Compiled by KENNETH A. VERCAMMEN from various sources

         Courts, Police and Prosecutors have an increased commitment to addressing the needs of witnesses. As a witness, their assistance is important to our system of criminal justice. As a witness, they find you in the same situation, as do many others,   you may be unfamiliar with court procedures and have fears and uncertainties about what is expected or required of witnesses. This article, compiled from suggestions of prosecutor’s offices, provides a brief explanation of what to expect on the witness stand.


     One of the fundamental rules in a criminal case is that both the prosecution and defense have an opportunity to question the witness. 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:


     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 policeman or prosecutor 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.       

    If you have any fears about your involvement in your case, contact your own town's 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.

     No crime can be solved without the help of witnesses. It is your duty as a witness to give your testimony when needed. While it may not always be convenient for you to come to court to testify, please keep in mind that some day you may be a victim and your own case may depend on the willingness of a witness to come forward and tell what he/she knows.
      As your case is being prepared for trial, it may be necessary for the attorney who sent you subpoenas to contact you. It is important to keep them informed of your current address and telephone number. If you move, be sure to let them know.

     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 subpoenas will request that you report to the Court on the date set for your appearance as a witness. This is to allow the Attorney who sent you the subpoenas an opportunity to discuss the case with you prior to your actually taking the witness stand.

    Get a good night's 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.

         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.


         Rule 1.  If you are asked what time it is, give the time.  Don't 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.  Go home.
         Don't 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, that's 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 don't understand.
         That's what you mean by ''I do not understand the question.'' It's not impolite. You are not comparing education. You just don't understand the question. If counsel cannot rephrase the question so you can understand and adequately respond, that's 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, that's 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 don't know, you don't 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 don't 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 a taped recording, later transcribed onto a printed page by a court reporter. 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. Don't 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.

                 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 don't know,'' SAY SO.
Don't 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, that's what they do.

         Some attorneys 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 can't win. It's not because you don't get to ask questions. You are gathered for the purpose of finding the truth, not to judge who can best exchange sarcastic remarks.

Trial of a Criminal Case in New Jersey

Trial of a Criminal Case in New Jersey

         Kenneth Vercammen's Law office represents people charged with criminal offenses and disorderly offenses. We provide representation throughout New Jersey. Criminal charges can cost you.  If convicted, you can face high fines, jail, probation and other penalties.  Don't give up!  Our Law Office can provide experienced attorney representation for criminal violations. Our website provides information on criminal offenses. We can be retained to represent people.

         The following are the Criminal Rules of Court regarding criminal trials in New Jersey in the Superior Courts:

         RULE 3:14. PLACE OF TRIAL
3:14-1. Venue

         An offense shall be prosecuted in the county in which it was committed, except that (a) If it is uncertain in which one of 2 or more counties the offense has been committed or if an offense is committed in several counties prosecution may be had in any of such counties.
(b) If a person dies in one county as a result of an offense committed in any other county or counties, the prosecution may be had in any of such counties.
(c) Whenever the body of any person who died as a result of an offense is found in any county, prosecution may be had in such county, regardless of where the offense was committed.
(d) Whenever a person dies within the jurisdiction of this State as a result of an offense committed outside the jurisdiction of this State, or dies outside the jurisdiction of this State as a result of an offense committed within the jurisdiction of this State, the prosecution shall be had in the county in which the death occurred or the offense was committed.
(e) Prosecution for acts of treason against this State which were committed outside the jurisdiction of this State shall be had in any county designated by the Chief Justice.
(f) Prosecutions for libel shall be had either in the county in which the publication was made or the county in which the libeled person resided at the time of the publication.
(g) An accessory may be prosecuted as such either in the county in which the offense to which he or she is an accessory is triable or the county in which he or she became such accessory.
(h) Any person who steals the property of another, outside this State, or receives such property knowing it to have been stolen, and brings it into this State, may be prosecuted in any county into or through which the stolen property is brought.
(i) Prosecutions for acts of forgery, embezzlement, conversion or misappropriation may be had either in the county in which such offense was committed or in the county in which the offender last resided.
(j) Prosecutions for desertion may be had either in the county in which the wife or any child resided at the time of the desertion or in the county in which the wife resides when the prosecution is begun.
(k) The county of venue for purposes of trial of indictments returned by a State Grand Jury shall be designated by the Assignment Judge appointed to impanel and supervise the State Grand Jury or Grand Juries pursuant to R. 3:6-11(b).

3:14-2. Motion for Change of Venue or Foreign Jury

         A motion for change of venue may be made only by a defendant. A motion for trial by a foreign jury may be made by any party. Such motions shall be made to the judge assigned to try the case or to the Assignment Judge of the county in which the indictment was found or the accusation filed on notice to the other party or parties on such proofs as the court directs and shall be granted if the court finds that a fair and impartial trial cannot otherwise be had.

3:14-3. Foreign Juries; Order and Selection

         If a foreign jury is ordered, the order shall specify the number of jurors to be returned and a venire directed to the sheriff of the county from which such jury shall be taken, which shall be returnable to the court in the county in which the matter is to be tried. The jurors shall be selected in the same manner as the general panel of jurors is selected in the county from which they are taken.

3:14-4. Order for Change of Venue; Costs

         If a change of venue is ordered, the criminal division manager's office in which the indictment or accusation is pending shall transmit to the criminal division manager's office to which the matter is transferred all papers filed therein or duplicates thereof, and the prosecution shall continue in that county. The costs of trial shall be certified to the Assignment Judge of the county in which the indictment was found or the accusation was filed.

3:15-1. Trial of Indictments or Accusations Together

         (a) Permissible Joinder. The court may order 2 or more indictments or accusations tried together if the offenses and the defendants, if there are 2 or more, could have been joined in a single indictment or accusation. The procedure shall be the same as if the prosecution were under such single indictment or accusation.
(b) Mandatory Joinder. Except as provided by R. 3:15-2(b), a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.

3:15-2. Relief From Prejudicial Joinder
         (a) Motion by State Before Trial. If two or more defendants are to be jointly tried and the prosecuting attorney intends to introduce at trial a statement, confession or admission of one defendant involving any other defendant, the prosecuting attorney shall move before trial on notice to all defendants for a determination by the court as to whether such portion of the statement, confession, or admission involving such other defendant can be effectively deleted therefrom. The court shall direct the specific deletions to be made, or, if it finds that effective deletions cannot practically be made, it shall order separate trials of the defendants. Upon failure of the prosecuting attorney to so move before trial, the court may refuse to admit such statement, confession or admission into evidence at trial, or take such other action as the interest of justice requires.
(b) Motion by Defendant and State. If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.
(c) Time. A motion for separate trial of counts of an indictment or accusation must be made pursuant to R. 3:10-2, unless the court, for good cause shown, enlarges the time.

3:15-3. Trial of Criminal Offenses and Lesser, Related Infractions

         (a) Joinder of Criminal Offense and Lesser Related Infraction.
(1) Except as provided in paragraph (b), the court shall join any pending non-indictable complaint for trial with a criminal offense based on the same conduct or arising from the same episode.
(2) Regardless of whether a jury sits as the finder of facts with respect to the criminal offense, and unless the complaint charges a disorderly persons offense or a petty disorderly persons offense that must be submitted to the jury in accordance with the provisions of N.J.S.A. 2C:1-8(e), the Superior Court judge shall sit as a municipal court judge on the complaint and shall render the verdict with respect to the complaint on the proofs adduced in the course of trial.
(3) If evidence is held to be admissible with respect to the trial of the complaint but inadmissible with respect to the trial of the criminal offense, the court shall hear that evidence outside of the jury's presence and may, in its discretion, postpone such hearing until the jury has retired to deliberate. The court shall not render its verdict on the complaint until the jury has rendered its verdict or until the jury has been dismissed.
(b) Relief From Joinder. If for any reason it appears that a defendant or the State is prejudiced by the joinder required by paragraph (a), the court may decline to join or may grant other appropriate relief. A defendant's request to avoid joinder shall constitute a waiver of any claim against twice being placed in jeopardy that would not have arisen had the defendant's request been denied.
(c) Consequence of Failure to Join. In no event shall failure to join as required in paragraph (a) be deemed to constitute grounds for barring a subsequent prosecution of the complaint except as required by statute or by the Federal or State Constitutions.

         (a) Pretrial. The defendant must be present for every scheduled event unless excused by the court for good cause shown.
(b) At Trial or Post-conviction Proceedings. The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence. A corporation shall appear by its attorney for all purposes. The defendant's presence is not required at a reduction of sentence under R. 3:21-10 or, except as provided in R. 3:22-10, at a hearing on a petition for post conviction relief.

3:18-1. Motion Before Submission to Jury

         At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction. A defendant may offer evidence after denial of a motion for judgment of acquittal made at the close of the State's case without having reserved the right.

3:18-2. Motion After Discharge of Jury

         If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made, even if not earlier made pursuant to R. 3:18-1 or it may be renewed within 10 days after the jury is discharged or within such further time as the court fixes during the 10-day period. The court on such motion may set aside a verdict of guilty and order the entry of a judgment of acquittal and may so order if no verdict has been returned.

3:19-1. Several Defendants or Counts; Written Verdict Sheets

         (a) Several Defendants or Counts. If there are 2 or more counts of an indictment or 2 or more defendants tried together, the jury may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed, specifying the counts on which it has agreed; the defendant or defendants may be tried again on the count or counts as to which it has not agreed.
(b) Written Verdict Sheets. In the discretion of the court, a written verdict sheet may be submitted to the jury in conjunction with a general verdict to facilitate the determination of the grade of the offense under the Code of Criminal Justice or otherwise simplify the determination of a verdict when multiple charges are submitted to the jury. The verdict sheet shall be marked as a court exhibit and retained by the court pursuant to Rule 1:2-3.

3:19-2. Acquittal by Reason of Insanity

         If a defendant interposes the defense of insanity and is acquitted after trial on that ground, the verdict and judgment shall so state.
The procedure for disposition of the defendant shall be as provided by N.J.S.A. 2C:4-8 and 2C:4-9 and by R. 4:74-7, except that in the case of defendants acquitted of murder by reason of insanity all hearings pursuant to R. 4:74-7(e) shall be in open court unless good cause is shown for a hearing in camera.

3:20-1. Trial by Court or Jury

         The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. If trial was by the judge without a jury, the judge may, on defendant's motion for a new trial, vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

3:20-2. Time for Making Motion
         A motion for a new trial based on the ground of newly-discovered evidence may be made at any time, but if an appeal is pending, the court may grant the motion only on remand of the case. A motion for a new trial based on a claim that the defendant did not waive his or her appearance for trial shall be made prior to sentencing. A motion for a new trial based on any other ground shall be made within 10 days after the verdict or finding of guilty, or within such further time as the court fixes during the 10-day period.


         If charged with any criminal offense, immediately schedule an appointment with a criminal trial attorney. Don't rely on a real estate attorney, public defender or a family member who simply attended law school.  When your life and job is on the line, hire the best attorney available.