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E427 1. New Law Finally Establishes a Conditional Dismissal

1.New law finally establishes a Conditional Dismissal Program in Municipal Court.Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.


Governor Chris Christie on September 9 signed into law legislation co-sponsored by Senator Christopher Kip Bateman (R-Hunterdon, Mercer, Middlesex and Somerset) to provide a conditional assistance program in Municipal Court for certain first-time offenders. The law takes affect 120 days after signing [approx December 9]
This initiative will give a broader range of first-time offenders who have committed a minor offense an opportunity to turn their lives around, Bateman said. The program will help foster participants rehabilitation and future success by giving them appropriate penalties without having the offense be a part of their permanent criminal record.
Under prior law, the only offenses eligible for a conditional discharge are certain drug-related offenses. Batemans S-2588 allows discharge for many non-drug offenses, such as disorderly persons offenses, which have not been able to participate in similar programs before.
First-time offenders who are screened to meet the eligibility requirements will be able to use the program to avoid having a record that cannot be expunged until years after the sentence is served, Bateman added. The legislation will also help courts efficiently adjudicate cases without costly logjams.
Under this law, conditional dismissal is not available to any person who has previously participated in a conditional discharge, conditional dismissal, or supervisory treatment program such as PTI. In addition, a person is not eligible for conditional dismissal if the offense for which the person is charged involved:
* organized criminal or gang activity;
* a continuing criminal business or enterprise;
* a breach of the public trust by a public officer or employee;
* domestic violence;
* an offense against an elderly, disabled or minor person;
* an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug;
animal cruelty;
* or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code.
After taking into consideration the eligibility criteria, the defendants criminal history and the prosecutors recommendation, the court may, approve the defendants participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year.
This law establishes a conditional dismissal program in municipal court similar to the existing supervisory treatment programs for pre-trial intervention and conditional discharge.
Previously, the supervisory treatment programs for pre-trial intervention and conditional discharge allow the court to suspend proceedings against eligible defendants while the defendants participate in supervisory treatment. Persons who are charged with indictable offenses (crimes of the first, second, third, or fourth degree) may be eligible for pretrial intervention (PTI) pursuant to N.J.S.2C:43-12 et seq. Persons charged with certain disorderly persons or petty disorderly persons drug offenses may be eligible for conditional discharge pursuant to N.J.S.2C:36A-1. If the defendant violates a term or condition of supervisory treatment, the court may enter a judgment of conviction or, where the defendant did not previously plead guilty and was not previously found guilty, resume the criminal proceedings. If the defendant successfully completes the program, the criminal charges are dismissed.

CONDITIONAL DISMISSAL PROGRAM. This law establishes a similar diversion program in municipal court to be known as the conditional dismissal program. Under the provisions of the law, a defendant who is charged with a petty disorderly persons offense or disorderly persons offense may apply to enter into the conditional dismissal program, provided the defendant has not been previously convicted of any offense or crime under any law of the United States, this State or any other state. A defendant may make an application to the conditional dismissal program after a plea of guilty or a finding of guilt, but prior to the entry of judgment of conviction.

FINGERPRINTING REQUIREMENT. To allow sufficient time for verification of the defendants criminal history by the prosecutor and as a condition of the application, the defendant will be required to submit to the fingerprint identification procedures as provided in R.S.53:1-15 before making an application to the court.
CONDITIONAL DISMISSAL PROGRAM ELIGIBILITY. Conditional dismissal will not be available to any person who has previously participated in conditional discharge, conditional dismissal, or PTI. In addition, conditional dismissal will not be available if the offense for which the person is charged involved: organized criminal or gang activity; a continuing criminal business or enterprise; a breach of the public trust by a public officer or employee; domestic violence; an offense against an elderly, disabled or minor person; an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug; animal cruelty laws; or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code (drugs and drug paraphernalia). However, a person who is charged with a disorderly persons or petty disorderly persons offense involving drugs or drug paraphernalia may apply for a conditional discharge in accordance with N.J.S.2C:36A-1.
In addition to these eligibility criteria, the court considering the application must also consider the following factors: the nature and circumstances of the offense; the facts surrounding the commission of the offense; the motivation, age, character and attitude of the defendant; the desire of the complainant or victim to forego prosecution; the needs and interests of the victim and the community; the extent to which the defendants offense constitutes part of a continuing pattern of anti-social behavior; whether the offense is of an assaultive or violent nature, either in the act itself or in the possible injurious consequences of such behavior; whether the applicants participation will adversely affect the prosecution of codefendants; whether diversion of the defendant from prosecution is consistent with the public interest; and any other factors deemed relevant by the court.
If the court approves a defendants participation in the conditional dismissal program over the municipal prosecutors objection, that order will, upon the request of the prosecutor, be stayed for a period of 10 days in order to permit the prosecutor to appeal the order to the Superior Court.
PROGRAM REQUIREMENTS. After taking into consideration the eligibility criteria, the defendants criminal history and the prosecutors recommendation, the court may approve the defendants participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. The court may also impose financial obligations and other terms and conditions in accordance with the law.The law permits the defendant to apply to the court for an extension of the term of conditional dismissal to allow sufficient time to pay financial obligations imposed by the court. In addition, a judge could extend the term for good cause.
If a defendant who is participating in conditional dismissal is convicted of any offense or crimeunder any law of the United States, this State or any other state, or otherwise fails to comply with the terms and conditions imposed by the court, the court can enter a judgment of conviction and impose a fine, penalty, or other assessment in accordance with the defendants prior plea of guilty or prior finding of guilt.
If, at the end of the term, the defendant has not been convicted of any subsequent offense or crimeunder any law of the United States, this State or any other state, and has complied with any other terms and conditions imposed by the court, the court may terminate the probation monitoring and dismiss the proceedings against the defendant.
The law provides that a conditional dismissal of a petty disorderly persons or disorderly persons offense granted pursuant to the program will not be deemed a conviction for purposes of disqualifications or disabilities, but shall be reported to the State Bureau of Identification criminal history record information files for purposes of determining future eligibility or exclusion from court diversion programs. A conditional dismissal granted will not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under any law of this State.
LIMITATION. A conditional dismissal can only be granted once with respect to any defendant.
CONDITIONAL DISMISSAL APPLICATION FEE AND ASSESSMENT. A person applying for admission to the conditional dismissal program will pay to the court an application fee of $75. The fee would be deposited in the newly created Municipal Court Diversion Fund established under the law. Monies in this new fund will be used to offset the cost of intake and monitoring services related to the conditional dismissal program. If admitted into the program, the defendant would also be required to pay any restitution, costs, and other mandatory assessments that would have been imposed by law for a conviction of the offense charged.
A municipal court judge may impose an assessment, based on the nature of the offense and the character of the defendant that shall not exceed the amount of a fine that would have been imposed for conviction of the offense charged. Such assessment would be distributed in the same manner as a fine for the offense.
A defendant would be advised of these financial conditions prior to seeking entry into the program.
The law allows the defendant to apply for a waiver of the fee by reason of poverty. The court may also permit the defendant to pay the conditional dismissal fee and other assessments in installments or order other alternatives pursuant to section 1 of P.L.2009, c.317 (C.2B:12-23.1). Under the provisions of that enactment, the court has several options available if it finds that a person does not have the ability to pay a penalty in full or has failed to pay a previously imposed penalty. The court may reduce, suspend, or modify the installment plan; order that credit be given against the amount owed for each day of confinement if the court finds that the person has served jail time for the default; revoke any unpaid portion of the penalty; order the person to perform community service in lieu of payment of the penalty; or impose any other alternative permitted by law.
EXPUNGEMENT. The law amends N.J.S.2C:52-6 concerning expungement of arrests not resulting in conviction to allow for expungement of charges dismissed pursuant to conditional discharge or conditional dismissal six months after the entry of the order of dismissal. Currently, this section allows for expungement for a person who has had charges dismissed as a result of participation in a supervisory treatment program.

Recent Cases:
2. Sixteen-month delay for DWI inhibited defendants speedy trial right.State v Cahill213 N.J. 253 (2013)
Applying the four-factor analysis set forth by the United States Supreme Court inBarker 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.
3. The investigation of a home based on dog sniff was an illegal search within the meaning of theFourth Amendment.Florida v Jardines133 S. Ct. 1409 (2013)
Police took a drug-sniffing dog to Jardines front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial courts decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

4. The community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency.State v Vargas213 N.J. 301 (2013)
The community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency. Police found drugs after landlord let them into apartment where defendant was living.


Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Kenneth 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 for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on 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 chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Halls Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005

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