These legal seminars are grouped according to practice areas.  One of the most popular practice areas at the conference is Municipal Court.  This year Rick DeMichele will be presenting at the Municipal Court Bench Bar Conference.  Rick will be offering  his insight  and prospective not only as a Municipal Court Prosecutor but also as criminal defense practitioner. The Bench Bar conference is sponsored by the New Jersey State Bar Association’s Municipal Court Practice Section.  Other panel speakers include:      

Hon. Roy F. McGeady, PJMC

Hon. Robert T. Zane III, Esq., PJMC

Robert A. Ballard Jr., Esq. - Ballard & Dragan

Jon-Henry Barr, Esq. - President, Municipal Prosecutors Association, J.H. Barr & Associates, LLC

Jeffrey Evan Gold, Esq. - Law Offices of Gold & Associates, PC   

Stephen D. Williams, Esq. - Law Office of Stephen D. Williams

The Municipal Court Bench- Bar Conference is Thursday, May 17 from 3 – 4:15 p.m.  Rick will be live tweeting from the Bench Bar Conference.  You can follow him @jerseylegal or @RickDeMichele.

May 1st is Law Day; a national celebration of the Rule of Law in this county.  The Library of Congress has a fairly extensive overview of Law Day in the United States.  This years celebration of the rule of law will include a free exposition in the city of Camden.

The Camden Vicinage Advisory Committee on Minority Concerns will present a Law Day expo on Saturday, May 12, from 9 a.m. to noon at the Camden Conference Center at Camden County College, 601 Cooper St., Camden. The entrance to the conference center is at Broadway and Penn Street.

This community education program will provide practical information and resource materials to promote a greater understanding of the court’s functions. Court staff will be available to answer questions about processes such as initiating child support; child custody and visitation matters; expungement; foreclosure mediation; landlord/tenant matters and small claims cases.

Private attorneys will offer limited free legal advice on various topics, and representatives from the Camden County Office of Victim-Witness Advocacy and South Jersey Legal Services also will be on hand to provide information about their services. The expo is free and open to the public. Pre-registration is not required.

The New Jersey Supreme Court recently upheld an Appellate Division decision which held that individuals hosting a party had a reasonable expectation of privacy, which prohibited police officers from conducting a warrantless search of the Defendant’s house.

In State of New Jersey vs. Derek J. Kaltner, the Defendant hosted a party in a home that he rented.  Five police officers arrived at the home after receiving a noise complaint.  Upon their arrival, the officers heard loud noise coming from the home.  They knocked on the door and entered the home after an unidentified person opened the door and allowed the officers to enter.  The officers proceeded to search the home and inquire from the party-goers who was responsible for the party.

During the search, the police officers entered the Defendant’s bedroom and saw what the police officers believed was a controlled dangerous substance (CDS).  In addition to writing three summonses for violating the city’s noise ordinance, the police officers also arrested the Defendant and charged him with possession of a controlled dangerous substance.

The trial court found the police officers’ testimony regarding the size of the party and the volume of noise to be credible. However, the judge concluded that the officers unlawfully extended their search beyond entry into the first floor main living area.  The judge explained that any number of methods could have been used by the officers to locate the resident of the premises which would not require them to invade the private areas of the home.

Based on this analysis, the drug evidence was suppressed.  The Appellate Division affirmed the Trial Court’s decision.  The State appealed to the New Jersey Supreme Court which ultimately affirmed the Appellate Division.

If you were a loved one have been charged with a crime do not just plead guilty.  The police may not have had a legal reason to stop you, to detain you, to search you or arrest you.  Protect your rights! Contact the criminal defense attorneys at DeMichele & DeMichele to schedule a free and confidential initial consultation.  Help is only a phone call away (856) 546-1350.

There can be no doubt: we are currently facing hard economic realities.  

Businesses are struggling, and as a result, many have been forced to close their doors.  However, just because a business is no longer viable and open to the public does not mean a business property owner does not have a duty to maintain and repair the sidewalk in front of his or her property.

Yesterday, the New Jersey Appellate Division released its decision in Gray v. Caldwell Wood Products Incorporated. This is a significant case for anyone who is injured on New Jersey sidewalks adjacent to abandoned commercial buildings as well as a person or entity owning a property that meets that decription.  The Gray decision imposes liability on vacant commercial property owners who fail to keep their sidewalks in good repair and free from such other hazards as snow and/or ice…

Commercial land owners have always have a clear obligation to maintain the sidewalks in front of their establishments in good repair. In fact, the New Jersey Supreme Court ruled in the 1981 case Stuart v. 104 Wallace St., Inc. that commercial property owners are:

… responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so.”

It is important to note that this obligation only applies to commercial real estate owners as opposed to residential real estate owners.  This distinction exists, at least in part, because commercial property owners generate income that can be used to offset the cost of keeping an adjoining sidewalk in good repair.  Owners of vacant commercial lots (vacant land) do not have the same obligation to keep their sidewalks in good repair.

Prior to the Gray decision, owners of vacant commercial property were able to defend premise liability lawsuits on the ground that their real estate was more akin to a vacant lot then viable, revenue-generating commercial real estate enterprise.   For the purposes of assigning responsibility for sidewalk maintenance, the distinction of whether a commercial property generates income or not is now moot after Gray.  All commercial property owners (as opposed to residential property or commercial lot owners) have an unambiguous obligation to maintain and repair the public sidewalks that adjoin their property.

If your loved one have been injured due to a slip and fall or a trip and fall, please contact the personal injury lawyers at DeMichele & DeMichele online today.  As a DeMichele & DeMichele personal injury client, you will never pay a fee unless we recover for you.  The initial consultation is also confidential and free; call (856) 546-1350 to speak with one of our personal injury attorneys.

In the past month, New Jersey Assemblyman Anthony M. Bucco (Morris, Somerset) announced that he will introduce legislation to “increase the punishment for drivers who act carelessly or inattentively where school cross guards are posted.”

This new bill is still in the drafting phase; however, Assemblyman Bucco’s press release indicates that it will include an automatic driver’s license suspension for New Jersey drivers who operate their vehicle carelessly in places where a crossing guard is posted.

The full text of Assemblyman Bucco’s April 16, 2012 explanatory press release can be viewed here.

You can also click here to view the New Jersey Motor Vehicle Commission’s Point Schedule. At present, careless driving is a 2-point offense. It is unclear whether Asm. Bucco’s bill will also seek to change this designation.

Obviously, if this proposal is ultimately drafted, passed and signed into law, it would inflict profoundly negative consequences on New Jersey drivers. A suspended license is objectively much more serious than a relatively minor fine and insurance points. License suspension imposes a severe impact on your professional and personal life; moreover, the process for restoring your license when the suspension is over can be complicated and trying.

As always, the attorneys at DeMichele & DeMichele will continue to provide updates as to the status of this potential legislation and any changes to the status of the law.

If you or a loved one have been charged with careless driving in New Jersey, you need experienced municipal court representation to protect your rights and fight for a “best case” outcome. Contact us online today or call us at (856)546-1350 to schedule a free initial consultation with one of our experienced New Jersey municipal court attorneys.

Palimony is when one person in a non-marital relationship seeks to enforce either a promise for support or a promise for property against the other party. On January 18, 2010 New Jersey’s statute of frauds laws were changed to specifically bar palimony claims that were not in writing.  Prior to that time unmarried parties could successfully litigate claims against each other to enforce prior oral promises of property or support.

An interesting question arose, “what if the promise was made prior to January 18, 2010 but the lawsuit was filed after that date?”  A Cape May County Superior Court Judge recently decided that even when parties’ relationship and promise for property or support predates the amendment to statute requiring a palimony action to be in writing, but the claim is filed thereafter, the statute bars the claim.   The trial court decision, Sharon Cavalli vs. Charles Arena, was approved for publication by New Jersey’s Committee on opinions.

From the decision it appears that the parties had a significant dating relationship.  The couple began living together in 2001 and Mr. Arena gave Ms. Cavalli an engagement ring in 2002. There was trust document that gave Ms. Cavalli $250,000 over the course of five years when the Mr. Arena passed away. This trust agreement was executed by the parties in 2005 and then again in 2010.  The couple lived together in Mr. Arena’s home for 11 years during which time Mr. Arena fully financially supported Ms. Cavalli. In fact Ms. Cavalli received a paycheck for a no-show job at Mr. Cavalli’s company.  The parties held himself out as husband and wife and Ms. Cavalli performed customary in typical homemaker duties for Mr. Arena. Ms. Cavalli alleged that Mr. Arena orally promised to continue to support her financially.  There was no written agreement for financial support between the parties.

The judge dismissed Ms. Cavalli’s claim for palimony because the promise for support was not reduced to writing and she filed her claim after January 18, 2010.  Prior to the amendment of NJSA 25:1-5(h) (“the palimony statute”) a palimony claim based on the above facts would have been a contender for a palimony award from Mr. Arena.  However, based on the change in the law and the lack of a written promise to pay the case was dismissed and Ms. Cavalli is unable to collect any support from Mr. Arena. This is true even though the relationship began and the alleged oral promise to support her was made prior to January 18, 2010.

the bottom line… If you want a promise for support to be enforceable it must be in writing.  Our firm has experienced palimony lawyers. If you have a question regarding palimony or any other type of support contact the family law lawyers at DeMichele & DeMichele. Call today to schedule your confidential consultation (856) 546-1350.

The committee believes that the proposed changes will aid the parties in reaching an amicable resolution in an efficient manner.  The recommendations include a relaxation of some of the deadlines for briefs and other pleadings.  Members of the public and members of the bar are encouraged to submit comments to the proposed rule change.   The deadline for submitting comments to the proposed rule changes is June 8, 2012.  All comments on the proposed rule changes should be delivered to:

William T. Walsh, Clerk
United States District Court
Martin Luther King, Jr. Federal Building and Courthouse
P.O. Box 419
Newark, NJ 07101

Anyone that’s ever watched a police drama on television knows that when a defendant is taken into custody they “… have the right to remain silent and that anything you say can and will be used against you in a court of law…”.  That famous quote is part of what everyone knows as Miranda warnings. The police are required to advise you of your right to remain silent when they take you into custody.

The right to remain silent is Constitutionally protected by the Fifth Amendment. A defendant cannot be compelled to testify against himself or herself. The lesser-known corollary to the Fifth Amendment is that a defendant’s silence cannot be used as an inference to suggest guilt.

In the unpublished decision of State v. Hakim Lester the defendant was being tried for third-degree possession of a controlled dangerous substance (PCP); second-degree possession of PCP with intent to distribute in a quantity less than 10 g;  third-degree possession of PCP with the intent to distribute within 1000 feet of school property; and secondary possession of PCP with intent to distribute within 500 feet of a public housing facility, park or building.  During the state’s opening statement the prosecutor told the jury,

“… Well, we’re not going to have any testimony regarding any drug sale. And I think the last thing — expected I don’t really expect either [defendant] to say, yes, you got me, you’re right, I did actually intend to sell it.”

Clearly the prosecutor was hoping that the defendant would testify to help secure his own conviction or in the alternative the jury would draw an inference that if the defendant did not testify it was because he was guilty.  The defendant did not testify at his trial and the jury convicted him of the first three counts of drug possession.

In granting the defendant a new trial the court held, “The prosecutor’s comments infringed on the defendant’s right not to testify, as well as the presumption of innocence, and, as a result, deprived the defendant of a fair trial.”

Understanding New Jersey’s Domestic Violence Law

“Domestic violence” is a loaded concept. Psychologists, sociologists, jurists and experts from virtually every academic discipline have studied it and expounded on its origins, causes, and effects on victims and society writ-large.

What does “domestic violence” mean in a New Jersey courtroom?

The burden rests on the plaintiff-victim to establish a two-part case; all proofs must be made by the civil standard of  a preponderance of the evidence (which means more likely true than not) as opposed to the criminal standard of beyond a reasonable doubt.

A defendant (man or woman) is guilty of domestic violence when (1) both parties fit into a defined domestic relationship category, and (2) the defendant party commits a predicate criminal offense against the plaintiff.

And what exactly is a defined domestic relationship?

Essentially, the parties’ relationship must be one of the following under the Prevention of Domestic Violence Act (PDVA) of 1991, N.J.S.A. 2C:25-17 et seq. (click here to review it) before the Court will even consider whether an incident or incidents of domestic violence took place:

1. Married
2. Married but presently Separated
3. Divorced
4. Cohabitating (i.e. “living together”) in the same household
5. Dating
6. Parents of a mutual child or children

For example, “platonic” (i.e. non-dating/non-romantic) friends, let’s call them “Mr. A” and ”Ms. B,” typically cannot obtain domestic violence restraining orders against each other even if one of them commits predicate criminal offense (see below). However, if our hypothetical friends live together as roommates or “have a dating like relationship, then either individual could qualify for the protections afforded by New Jersey’s.

Many domestic violence cases turn on whether such a “dating relationship” exists between the parties. To borrow a popular Facebook dating phrase, the answer is often “complicated.” The definition of a “date” is broad and often, necessarily, subjective.  As a result, the Family Judge is often called on to make a highly-factual determination and consider what the parties subjectively believe about the relationship among other factors. In one relatively recent case, J.S. v. J.F., A-2552-08, the Appellate Division found that a paid escort actually qualified as a ”date” under the Act.

Please also note that while gender is irrelevant, the defendant must be 18 or older (or an emancipated minor) for the Act to apply. Therefore, a 16 year old cannot be a domestic violence defendant in New Jersey.

So okay – we’ve now established that Mr. A and Ms. B are in a dating like relationship with each other.  And what is a predicate criminal defense?

Once the relationship of the parties has been established proving the elements of one of the  following fourteen (14) criminal offenses will trigger the protections of the Prevention of Domestic Violence Act (PDVA) of 1991:

1. Homicide
2. Assault
3. Terroristic threats
4. Kidnapping
5. Criminal restraint
6. False imprisonment
7. Sexual assault
8. Criminal sexual contact
9. Lewdness
10. Criminal mischief
11. Burglary
12. Criminal trespass
13. Harassment
14. Stalking

Harassment is the most common and most controversial underling offense. Harassment is also far-and-away the most complicated since because it typically does not involve any physical touching.

“Harassment” in New Jersey is defined as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Last August, the Appellate Division’s reported decision of L.M.F. v. J.A.F., Jr. addressed the circumstances upon which digital communications, specifically cell phone text messages, could be considered harassment pursuant to the criteria set forth above. In that particular case, the text messages at issue were not sent with the requisite purpose to harass by the defendant. A more recent unreported decision, E.D. v. J.F., App. Div. 20-2-5897, saw a final restraining order upheld where a defendant texted the plaintiff ”get her daughter … leave the house and get to a safe place” and, at the end of one text, included the word “bullets” which caused the plaintiff to fear for her safety.

Domestic violence is a serious matters addressed by New Jersey family attorneys. This area of the law is also extremely complicated as the examples cited in this blog post clearly indicate. Both parties in a DV matter face potentially life-changing consequences hinging upon whether the Family Court ultimately issues a final restraining order. Consequently, it is extremely important for victims and defendants alike to seek out experienced counsel during this extremely difficult time in their lives.

If you are a New Jersey victim of domestic violence, or if you have been accused of perpetrating domestic violence in New Jersey, contact the domestic violence attorneys at DeMichele & DeMichele online today or call (856) 546-1350 to speak with a friendly and helpful member of our legal staff. We will set up a confidential consultation with one of our experienced attorneys in order to accommodate your busy schedule!

This is a relatively simple question with a fairly complicated answer. The one thing that is certain is that children are expensive to raise.  In New Jersey child support is governed by the New Jersey Child Support Guidelines.   The guidelines are established pursuant to Court Rule 5:6A and provide a rebuttable presumption for a child support obligation. The presumption of child support obligation can only be modified or disregarded where good cause is shown.

Pursuant to the court rule the guidelines are governed by considerations outlined in Appendix IX.   The guidelines are intended to represent the average amount and intact nuclear family spends on their children. According to the New Jersey Child Support Guidelines Appendix IX– A  the child’s expenses that are included as part of the child support guideline award are:

1. Housing
2. Food
3. Clothing
4. Transportation
5. Unreimbursed Health Care up to $250 Per Child Per Year
6. Entertainment
7. Miscellaneous items

A detailed explanation as to each category of the included expenses can be found in the text of paragraph 8 of Appendix IX– A.

In addition to the “basic” child support guideline amount certain expenses are added to the child support obligation.  The additional expenses are:

1. Work Related Child Care Expenses
2. Health Insurance for the Child
3. Reoccurring Unreimbursed Health Care Expenses in Excess of $250 Per Child Per Year
4. Other Expenses Approved by the Court

A detailed explanation as to each category of the included expenses can be found in the text of paragraph 9 of Appendix IX– A.

The New Jersey Child Support Guidelines can be a complicated and fact intensive area of the law. The child support appendix and guideline need to be ready conjunction with the existing case law. The court rules in appendix guidelines are established give the courts guidance in making their ultimate decision.  If you or someone you know needs help in determining the proper child support obligation contact the child support attorneys at DeMichele & DeMichele.  Your confidential initial consultation is only a phone call away. (856) 546-1350.