Kenneth Vercammen's NJ Laws email newsletter E244 May 10, 2007

1 Personal Legal Checkup
2. Pocket bike is motorized vehicle subject to NJ Laws and DWI
3. Defendant guilty of leaving scene where defendant admitted contact with vehicle
4. Double-jeopardy did not bar new trial where mistrial declared if judge could not be neutral.
5. To be guilty of "fictitious reports" defendant must act with knowing mental state.
6. Effective Business Succession Planning
7. Major Changes in Municipal Court - DWI, Recent DWI and Criminal Cases and the New Alcotest Breath Machine

1 Personal Legal Checkup

1. Do you have a will which has been revised within the past 3 years? (Y, N)

2. Are there any estate planning changes which should be considered? (Y, N)

3. Have the liability policy limits of your insurance increased within the past three years? (Y, N)

4. Are there any potential claims which could be asserted against you? (Y, N)

5. Do you presently have a written and current listing of all important future dates, such as expiration, option, maturity and due dates? (Y, N)

6. Are you aware of, and do you have a current valuation of, all potential government benefits to which you are or will become entitled? (Y, N)

7. Do you have a file, stored in a secure and fireproof location, containing all important documents (wills, titles, securities, contracts, marriage/divorce papers, deeds, pension/profit sharing plans, etc.) (Y, N)

8. Have you within the past 3 years reviewed the beneficiary designation on all documents which require such information? (Y, N)

9. Do you have a complete and current personal financial statement which list in detail all of your personal assets and liabilities? (Y, N)

10. Do you have a complete and current inventory of all of your physical possessions, sufficient to support a claim in the event of a loss? (Y, N)

11. To the extent the foregoing question are relevant to your spouse(if any) and minor children (if any), are there any matters or issues which should be updated, reconsidered, or changed? (Y, N)

12. To the extent there are persons other than spouse or children for whom you may have some responsibilities ( e.g., aging parents ), are there items or issues which should be updated or changed? (Y, N)

13. Have any of these questions caused you to consider taking some action or making some further review? (Y, N)

Recent cases:
2. Pocket bike is motorized vehicle subject to NJ Laws and DWI. State v. Kaiser Appellate Division, A-2404-05T3, September 26, 2006, not approved for publication.

Conviction following a trial de novo of driving while intoxicated in violation of N.J.S.A. 39:4-50 affirmed substantially for the reasons expressed by the Law Division; the defendant argued on appeal that the “pocket bike” that he had operated on a public roadway was not a “motor vehicle” for the purpose of prosecution under §39:4-50; N.J.S.A. 39:1-1 defines “motor vehicle” to include “all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks and motorized bicycles”; a “pocket bike” is not propelled by muscular power or the use of pedals, does not run on rails or tracks, and is not a “motorized bicycle” because it does not have pedals; therefore, a “pocket bike” was a “motor vehicle” when the defendant’s offense occurred; although the Legislature later enacted a regulatory scheme for “motorized scooters,” including “pocket bikes,” that is independent of the scheme for “motor vehicles,” there was no legislative intent to provide retroactive relief to drunk drivers who were convicted under prior law. Source: Facts-on-Call Order No. 20243

3. Defendant guilty of leaving scene where defendant admitted contact with vehicle. State v. Friedman Appellate Division, A-272-05T2, October 4, 2006, not approved for publication.

Conviction following a trial de novo of leaving the scene of an accident in violation of N.J.S.A. 39:4-129(b) affirmed substantially for the reasons expressed by the Law Division; a driver testified that her vehicle was stopped in traffic when a blue Jaguar hit it in the rear; the driver saw “a small indentation” and cracked lacquer on her bumper, and she wrote down the Jaguar’s license plate number; the Jaguar was determined to belong to the defendant, whom the driver identified in court; the defendant had driven from the scene without giving the driver his name and address, driver’s license, or vehicle registration; the defendant admitted that his Jaguar had touched the driver’s vehicle but asserted that the touching did not amount to an accident; however, the Law Division properly concluded that the defendant was aware that he had been in an accident and that the requirements of §39:4-129(b) therefore were satisfied; even if the impact was minimal, that was no defense to the charge. Source: Facts-on-Call Order No. 20285

4. Double-jeopardy did not bar new trial where mistrial declared if judge could not be neutral. State v. Logory Appellate Division, A-3582-04T3, October 19, 2006, not approved for publication.

Law Division decision that the retrial of the defendant in the Municipal Court on charges of driving while intoxicated and making an improper lane change was not a double-jeopardy violation affirmed; the first Municipal Court judge declared a mistrial sua sponte because he no longer could be neutral and detached in light of defense counsel’s conduct; at the retrial, the second Municipal Court judge convicted the defendant of both charges; the Law Division rejected the defendant’s double-jeopardy claim and convicted him of both charges following a trial de novo; the Appellate Division rejected the defendant’s argument that double-jeopardy principles barred his retrial because the first Municipal Court judge could have exercised reasonable alternatives to declaring a mistrial; “manifest necessity” and the “ends of public justice” required the first Municipal Court judge to recuse himself when he no longer could be fair and impartial and therefore to declare a mistrial sua sponte. Source: Facts-on-Call Order No. 20370

5. To be guilty of "fictitious reports" defendant must act with knowing mental state. State v. Taylor Law Division, Camden County, Appeal No. 02-2006, approved for publication June 20, 2006.

As a matter of first impression, the Law Division applied the “diminished capacity” statute, N.J.S.A. 2C:4-2, to the case of a defendant who, while in a hallucinatory state, had reported an offense to the police
that had not occurred, and it concluded that the State had not proved that the defendant had acted with the “knowing” mental state required by the fictitious reports statute, N.J.S.A. 2C:28-4b(1). Source: Facts-on-Call Order No. 93068

6. Effective Business Succession Planning

By Saul Simon

Business owners invest significant amounts of time and financial resources to make their enterprises successful. Quite often, due to the quick pace of day-to-day operations, planning for succession of ownership is relegated to a low-priority task. But there comes a point in the life cycle of any business when the owner is no longer able to manage the firm that he or she founded.

Because the timing of death or disability is difficult to predict, it’s prudent to have a succession plan in place now to safeguard your family’s financial well being, and to provide your business with leadership during a transition period.

A Family Affair?

One logical solution—and one that most entrepreneurs may want to choose—is to turn the reins over to their children. However, despite its emotional and intuitive appeal, the odds are stacked squarely against a business surviving a transfer down the bloodline.

According to the U.S. Small Business Administration, two-thirds of family-run enterprises fail to make the successful transition to a second generation of ownership, and less than 15% survive into the third generation. Making a successful transition even trickier are issues brought on by divorce, blended families, or rivalries among children.

The best course of action may be either to identify strong candidates within your company who can continue to run the business and provide a source of financial security for your family, or to look at the potential for selling the business to an outside party.

“You have to be realistic,” says Jack Kaewpalug, Certified Financial PlannerTM Practitioner with Lincoln Financial Advisors Corp. in Irvine, Calif. “If you’re the person who is responsible for 80% of the firm’s sales, you’ll need to identify somebody who can assume that role if you want to keep the operation going.”

Transitional Steps

Whichever course you eventually decide is right for your business, there are steps you can take now that will ease the transition.

* Groom new management. Who is best able to run the business in your absence? Perhaps your children have spent years growing up in the business and have become capable managers in their own right. If not, look to your existing management team, and make your intentions known. Be sure that candidates are capable and interested in taking over.

* Determine a value. Work with a valuation specialist to get a fair assessment of what your business might be worth. While valuation analysis may be an art as much as it is a science, you should place a value on your business in the event you decide to sell. There are several valuation methods, including book value, discounted cash flow, or you could hire a professional appraiser. If you decide to transfer the business to your children, a professional appraisal is generally required to withstand IRS scrutiny.

* Draft a buy-sell agreement. Depending on the structure of ownership, this document will be a binding agreement detailing the terms of ownership transfer between you and your offspring, you and a non-family successor, or you and your partners. Be sure to specify how the agreement will be funded. “Proceeds from a life insurance policy are frequently used as a way to fund a buy-sell arrangement,” says Kaewpalug, “Other options include loans from a bank or company earnings that are paid back through an ‘earn-out’ arrangement with your successor, whereby the loan is paid back in regular installments.

* ESOPs. If you have a large number of employees, another option is an Employee Stock Ownership Plan (ESOP), whereby a bank lends money to the ESOP to purchase your interest in the business, and the employees then buy the shares through regular payroll deductions.

Planning for succession can be an unpleasant task, although the outcome can be even more unpleasant if you fail to plan. “You’ll have a lot more options if you start to plan when things are going great,” says Kaewpalug. “What you don’t want is a situation where your family is scrambling to salvage some value from the business after you’re gone.”

Simon Financial Group
399 Thornall Street, 12th Floor
Edison, NJ 08837
Phone: (732)623.2078
Fax: (732)623.2088

www.saulsimon.com

7. Major Changes in Municipal Court - DWI, Recent DWI and Criminal Cases and the New Alcotest Breath Machine

NJSBA Annual Meeting- Borgata Resort, Atlantic City

Thursday, May 17 10:30 a.m. - noon Studio III room

Discussion of new DWI law with .08 BAC; the new 7110 breathalyzer testing machine; recent cases involving DWI or drugs; the refusal law and pending legislation; court rules to limit plea bargaining; blood test admissibility in a DWI or drug case suppression and other pre-trial motions.

Speakers:
John Menzel, Esq.
Co-Counsel, State v Chun, State v Foley

Kenneth A. Vercammen, Esq.
Past Chair, NJSBA Municipal Court Section

Hon. Marilyn E. Williams
Newark Municipal Court

Richard M. Keil, Esq.
Oakhurst

Sponsors: Municipal Court Practice Section
Criminal Law Section
General Practice Section
Young Lawyers Division
ICLE

Certified Trial Attorneys: 1.5 criminal credits pending
PA CLE: 1.5 substantive credits pending
NY CLE (Transitional/Non-transitional): 1.5 professional practice credits
One speaker will also provide updated information on the 7100 Alcotest Mark III MK breath test machine that will replace the Breathalyzer Model 900 and 900A, used in New Jersey for the past thirty years. He will also discuss the science and operation of this new breath test machine, and consider its impact on breath testing in New Jersey. This information is critical for attorneys who represent plaintiffs or defendants in DWI matters.

Materials Provided to all Attendees:
Call NJSBA at 732-249-5000 for meeting registration details

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