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Kenneth Vercammen & Associates
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Rules Governing Practice In The Municipal Courts - Rule 7:10

RULE 7:10. Post-Trial Proceedings

7:10-1. New Trial

On defendants motion, the court may, pursuant to the time limitations of this rule, grant the defendant a new trial if required in the interest of justice. The court may vacate the judgment if already entered, take additional testimony, and direct the entry of a new judgment. A motion for a new trial, based on the ground of newly discovered evidence, shall be made within two years after entry of a final judgment. A motion for a new trial on the grounds of fraud or lack of jurisdiction may be made at any time. A motion for a new trial, based on any other grounds, shall be made within twenty days after the entry of judgment of conviction or within such further time as the court fixes during the twenty-day period.

Note: Source-R.R. (1969) 7:4-7. Adopted October 6, 1997 to be effective February 1, 1998; amended June 15, 2007 to be effective September 1, 2007.

7:10-2. Post-Conviction Relief

  • (a) Petition for Relief.A person convicted of an offense may, pursuant to this rule, file with the municipal court administrator of the municipality in which the conviction took place, a petition for post-conviction relief captioned in the action in which the conviction was entered.

  • (b) Limitations and Exclusiveness.

    • (1)A petition to correct an illegal sentence may be filed at any time.

    • (2)A petition based on any other grounds shall not be accepted for filing more than five years after entry of the judgment of conviction or imposition of the sentence sought to be attacked, unless it alleges facts showing that the delay in filing was due to defendants excusable neglect.

    • (3)A petition for post-conviction relief shall be the exclusive means of challenging a judgment of conviction, except as otherwise required by the Constitution of New Jersey, but it is not a substitute for appeal from a conviction or for a motion incident to the proceedings in the trial court, and may not be filed while appellate review or the filing of a motion in the municipal court is available.

  • (c) Grounds.A petition for post-conviction relief is cognizable if based on any of the following grounds:

    • (1)substantial denial in the conviction proceedings of defendants rights under the Constitution of the United States or the Constitution or laws of New Jersey;

    • (2)lack of jurisdiction of the court to impose the judgment rendered on defendants conviction;

    • (3)imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law; or

    • (4)any ground previously available as a basis for collateral attack on a conviction by habeas corpus or any other common law or statutory remedy.

  • (d) Bar of Grounds Not Raised in Prior Proceedings; Exceptions.

    • (1)The defendant is barred from asserting in a proceeding under this rule any grounds for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of R. 3:22-4, or in any appeal taken in any of those proceedings, unless the court on motion or at the hearing finds that:

      • (A)the grounds for relief not previously asserted could not reasonably have been raised in any prior proceeding;

      • (B)enforcement of the bar would result in fundamental injustice; or

      • (C)denial of relief would be contrary to the Constitution of the United States or of New Jersey.

    • (2)A prior adjudication on the merits of any grounds for relief asserted in the petition is conclusive, whether made in the proceedings resulting in the conviction or any prior post-conviction proceeding, or in any appeal taken from those proceedings.

  • (e) Assignment of Counsel.A defendant may annex to the petition a sworn statement asserting indigency in the form (Form 5A) prescribed by the Administrative Director of the Courts, which form shall be furnished by the municipal court administrator. If the court finds that the defendant is indigent as herein provided, and that the original conviction involved a consequence of magnitude, it shall order counsel assigned to represent defendant and shall further order a transcript of testimony of any proceeding shown to be necessary in establishing the grounds of relief asserted. Absent a showing of good cause, which shall not include lack of merit of the petition, the court shall not substitute new assigned counsel. If counsel is assigned, the court shall not thereafter substitute new assigned counsel absent a showing of good cause, which shall not, however, include lack of merit of the petition.

  • (f) Procedure.

    • (1)The municipal court administrator shall make an entry of the filing of the petition in the proceedings in which the conviction took place, and if it is filed pro se, shall forthwith transmit a copy to the municipal prosecutor. An attorney filing the petition shall serve a copy on the municipal prosecutor before filing.

    • (2)The petition shall be verified by defendant and shall set forth with specificity the facts upon which the claim for relief is based, the legal grounds of the complaint asserted and the particular relief sought. The petition shall include the following information:

      • (A)the date, docket number and contents of the complaint upon which the conviction is based and the municipality where filed;

      • (B)the sentence or judgment complained of, the date it was imposed or entered, and the name of the municipal court judge then presiding;

      • (C)any appellate proceedings brought from the conviction, with copies of the appellate opinions attached;

      • (D)any prior post-conviction relief proceedings relating to the same conviction, including the date and nature of the claim and the date and nature of disposition, and whether an appeal was taken from those proceedings and, if so, the judgment on appeal;

      • (E)the name of counsel, if any, representing defendant in any prior proceeding relating to the conviction, and whether counsel was retained or assigned; and

      • (F)whether and where defendant is presently confined. A separate memorandum of law may be submitted.

      • (G)In addition, the moving papers in support of such an application shall include, if available, records related to the underlying conviction, including, but not limited to, copies of all complaints, applications for assignment of counsel, waiver forms and transcripts of the defendants first appearance, entry of guilty plea and all other municipal court proceedings related to the conviction sought to be challenged. The petitioner shall account for any unavailable records by way of written documentation from the municipal court administrator or the custodian of records, as the case may be.

    • (3)Amendments of the petitions shall be liberally allowed. Assigned counsel may, as a matter of course, serve and file an amended petition within 25 days after assignment. Within 30 days after service of a copy of the petition or amended petition, the municipal prosecutor shall serve and file an answer to the petition or move on ten days notice for dismissal. If the motion for dismissal is denied, the governments answer shall be filed within fifteen days after entry of the order denying the dismissal.

    • (4)A defendant in custody shall be present in court if oral testimony is adduced on a material issue of fact within the defendants personal knowledge. A defendant in custody may otherwise be present in court only in the judges discretion.

    • (5)In making a final determination on a petition, either on motion for dismissal or after hearing, the court shall state separately its findings of fact and conclusions of law and shall enter judgment or sentence in the conviction proceedings and any appropriate provisions as to rearraignment, retrial, custody, bail, discharge, correction of sentence or as may otherwise be required.

  • (g) Petition to Obtain Relief from an Enhanced Custodial Term Based on a Prior Conviction

    • (1) Venue.A post-conviction petition to obtain relief from an enhanced custodial term based on a prior conviction shall be brought in the court where the prior conviction was entered.

    • (2) Time Limitations.The time limitations for filing petitions for post-conviction relief under this section shall be the same as those set forth in R. 7:10-2(b)(2).

    • (3) Procedure.A petition for post-conviction relief sought under this section shall be in writing and shall conform to the requirements of Rule 7:10-2(f). In addition, the moving papers in support of such an application shall include, if available, records related to the underlying conviction, including, but not limited to, copies of all complaints, applications for assignment of counsel, waiver forms and transcripts of the defendants first appearance, entry of guilty plea and all other municipal court proceedings related to the conviction sought to be challenged . The petitioner shall account for any unavailable records by way of written documentation from the municipal court administrator or the custodian of records, as the case may be.

    • (4) Appeal.Appeals from a denial of post-conviction relief from the effect of a prior conviction shall be combined with any appeal from proceedings involving the repeat offense. Appeals by the State may be taken under R. 3:23-2(a).

Note: Source - Paragraph (a): R. (1969) 3:22-1; paragraph (b)(1),(2): R. (1969) 3:22-12; paragraph (b)(3): R (1969) 3:22-3; paragraph (c): R. (1969) 7:8-1, 3:22-2; paragraph (d)(1): R. (1969) 3:22-4; paragraph (d)(2): R. (1969) 3:22-5; paragraph (e): R. (1969) 3:22-6(a),(c),(d); paragraph (f)(1): R. (1969) 3:22-7; paragraph (f)(2): R. (1969) 3:22-8; paragraph (f)(3): R. (1969) 3:22-9; paragraph (f)(4): R. (1969) 3:22-10; paragraph (f)(5): R. (1969) 3:22-11. Adopted October 6, 1997 to be effective February 1, 1998; new subparagraph (f)(2)(G) and new paragraph (g) adopted June 15, 2007 to be effective September 1, 2007; paragraph (g)(2) amended July 16, 2009 to be effective September 1, 2009.

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

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I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

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p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

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Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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