E3931. Asking Location of Handgun Permitted if Exigent Circumstances. 2. Out of Court Statements Not Admissible. 3. Prior NY DWI Counts in NJ for Enhanced Penalty. 4. Nuts & Bolts of Elder Law & Estat

by Kenneth Vercammen, Esq.
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1. Asking Location of Handgun Permitted if Exigent Circumstances. State v. Melendez 423 NJ Super. 1 (App. Div. 2011)

Relying on the public safety exception in New York v. Quarles, 104 S. Ct. 2626, 2631 (1984), and State v. O'Neal, 190 N.J. 601, 618 (2007), the trial court admitted inculpatory statements defendant gave in response to officers' questions about the location of the handgun he used to kill his wife. Defendant was in custody and had invoked his right to counsel.

Assuming the claimed "public safety" meets the criteria in State v. Stephenson, 350 N.J. Super. 517, 525 (App. Div. 2002), the court is persuaded by the reasoning in United States v. DeSantis, 870 F.2d 536, 541 (9th Cir. 1989), and hold that the same "exigent circumstances" that permit the pre-Miranda interrogation of a defendant, permit the police to question a defendant after he or she has invoked the right to counsel. Pursuant to Stephenson, the court holds there was an insufficient basis to apply the public safety exception. The court affirms, however, because the trial court correctly found defendant waived his right to counsel, independent of the initially tainted interrogation.

2. Out of Court Statements Not Admissible. State v. Cabbell 207 NJ 311 (2011)

Both defendants were denied their federal and state constitutional rights to confront Karine Martin, a key State's witness, before the jury. For that reason, Martin's out-of-court statement to the police incriminating defendants should not have been read to the jury and the admission of that statement was not harmless error.

3. Prior NY DWI Counts in NJ for Enhanced Penalty. State v. Zeikel 423 NJ Super. 34 (App. Div. 2011)

Defendant was correctly sentenced as a third-time DWI offender based on a prior conviction in New Jersey for DWI and two prior convictions in New York State for driving while ability impaired. The New York convictions were "of a substantially similar nature" as a DWI violation in New Jersey. See N.J.S.A. 39:4-50(a)(3).Defendant's constitutional, statutory, and factual challenges to the consideration of his 1980s New York convictions are rejected.

4. Nuts & Bolts of Elder Law & Estate Administration Seminar for NJ Attorneys

Wed. April 25, 2012 5:00PM - 9:00PM

New Jersey Law Center

One Constitution Square

New Brunswick, NJ 08901

Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today's society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.

This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You'll also gain insight on how Federal Medicaid Reform will impact your practice.

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Written by:

Kenneth Vercammen, Esq.
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