Ken Vercammen's NJ Laws email newsletter November 2, 2003 #138 In this issue: 1. New updates and articles to www.njlaws.com 2. Personal cases, Settlement, and doctors certifications 3 Medicaid planning limited if you wait too long 4- Criminal cases ___________________ 1. New updates and articles to www.njlaws.com More Criminal Laws and Links http://www.njlaws.com/more_criminal_laws_and_links.htm 2C:43-3 Fines and restitutions- http://www.njlaws.com/fines_and_restitutions.htm 2C:43-1 Jail Sentences Degrees of crimes - http://www.njlaws.com/degrees_of_a_crime.htm 2C:39-3 Prohibited weapons and devices- http://www.njlaws.com/prohibited_weapons_and_devices.htm 2C:36-1. Drug paraphernalia- http://www.njlaws.com/drug_paraphernalia.htm 2C:36A-1 Conditional discharge to dismiss first time drug offenses-http://www.njlaws.com/conditional_discharge.htm 2C:2-5 Affirmative defenses- http://www.njlaws.com/affirmative_defenses.htm 2C:20-4 Theft by deception- http://www.njlaws.com/theft_by_deception.htm 2C:1-13 Proof beyond a reasonable doubt- http://www.njlaws.com/proof_beyond_reasonable_doubt.htm 2C:20-1 Theft- http://www.njlaws.com/lewdness.htm 2C:14-4. Lewdness- http://www.njlaws.com/lewdness.htm 2C:14-2. Sexual assault- http://www.njlaws.com/sexual_assault.htm 2C:13-2 Criminal restraint- http://www.njlaws.com/criminal_restraint.htm 2C:33-15 Possession, consumption of alcoholic beverages by persons under legal age- http://www.njlaws.com/under_age_consumption_of_alcoholic_beverages.htm 2C:33-4. Harassment- http://www.njlaws.com/under_age_consumption_of_alcoholic_beverages.htm 2C:33-3. False Public Alarms- http://www.njlaws.com/false_public_alarms.htm 2C:33-2.1. Loitering to obtain or distribute CDS- http://www.njlaws.com/loitering_to_obtain_or_distribute_cds.htm 2C:33-2 Disorderly conduct- http://www.njlaws.com/disorderly_conduct.htm 2C:33-1 Riot; failure to disperse- http://www.njlaws.com/riot_failure_to_disperse.htm 2C:17-3 Criminal Mischief- http://www.njlaws.com/criminal_mischief.htm 2C:17-1 Arson and related offenses- http://www.njlaws.com/arson.htm 2C:16-1 Bias intimidation- http://www.njlaws.com/bias_intimidation.htm 2C:5-2 Conspiracy- http://www.njlaws.com/conspiracy2C5-2.htm 2C:5-1 Criminal attempt- http://www.njlaws.com/criminal_attempt.htm __________________ 2. Personal case Settlements in Past month by our law Office Motorcycle accident- $500,000 Car accident - $110,000 Car accident -$22,500 Verizon Superpages/ original Yellow Pages- check out our full page add in Attorney Section for Personal Injury Personal Injury Cases: Certification needed by Doctor that injury is permanent [Verbal/ Lawsuit threshold]. Casinelli v. Manglapus , 357 NJ Super. 398 (App. Div. 2003). In a verbal-threshold case governed by the Automobile Insurance Cost Reduction Act, where a plaintiff fails to file the required physician certification within the time prescribed by N.J.S.A. 39:6A-89a) and the two-year statute-of-limitations period set forth in N.J.S.A. 2A:14-2 has run at the time defendant files a motion to dismiss, if the plaintiff is able to establish the requisite elements to demonstrate ³substantial compliance² with the procedural requirement that a physician certification be timely filed, then the harsh consequences of a dismissal with prejudice can be equitably avoided. We reach this conclusion because the failure to strictly comply with the time requirements for filing a physician certification does not go to the heart of the cause of action as defined by the Legislature. See Watts v. Camaligan, 344 N.J. Super. 453, 462-68 (App. Div. 2000). Although the fact that the applicable statute of limitations may have expired at the time defendant moved for dismissal does not preclude a substantial-compliance analysis, as a prerequisite for consideration of application of the doctrine of substantial compliance, the plaintiff must have filed a physician certification that, except for being untimely, otherwise meets the requirement contained in N.J.S.A. 39:6A-8(a). ____________ More than Doctor cert needed for permanent injury case Rios v. Szivos 354 N.J. Super. 578 (App. Div. 2002). A treating physicianıs certificate, in compliance with N.J.S.A. 39:6A-8(a), is not by itself sufficient to satisfy the ³verbal threshold² (now the ³limitation on lawsuit option²) so as to warrant a jury trial based on a complaint for noneconomic losses in a case which plaintiff claims to have suffered a ³permanent² injury. The summary judgment model of Oswin v. Shaw, 129 N.J. 290 (1992), survives the adoption of the Automobile Insurance Cost Reduction Act of 1998 in such cases. ____________________ 3 Medicaid planning limited- is Intended for Truly Needy, Not for Self-Sufficient Adult Children. In the Matter of Keri 356 N.J. Super. 170 (App. Div. 2002). Estate Planning must be done before someone is incompetent/ incapacitated Applying Trottıs limited objective test for saving on estate taxes, which is not inconsistent with oneıs obligations as a citizen, to Medicaid planning is troublesome, since many people might well be reluctant to become wards of the state by unnecessary self-impoverishment, even if that would benefit their children; where, as here, the incompetent has not indicated a preference for Medicaid planning while competent, the court will not force premature enrollment on the public dole at the guardianıs request for the benefit of the incompetentıs adult, self sufficient children; a purely subjective standard is called for in this context to protect the incompetentıs right to self-determination, and, since the evidence provides no support for the course proposed by the guardian, a son- that his motherıs house be sold, with part of the proceeds going to pay for a nursing home during the Medicaid penalty period and the rest (more than half) be given to him and his brother (both self-sufficient adults)- the aspect of the judgment refusing to authorize the ³Medicaid plan² is affirmed; absent extraordinary circumstances, a court faced with an application of this nature should appoint the Public Guardian to represent the incompetent under N.J.S.A. 52:27G-25h and, since the concern here is whether the motherıs best interests are being protected, both as to whether she must go to a nursing home and, if so, the quality of the home, the case is remanded with the direction that the trial court ask the Public Guardian to intervene on her behalf. Source: 170 N.J.L.J. 1165. 4 Contraband Not Admissible in Warrantless Search. State v. Holland, ___ NJ ___ A-150 (June 3, 2003). The contraband that was found after a warrantless entry into the defendantıs home was not admissible under the independent source rule where the police officers could not prove by clear and convincing evidence that they would have secured a search warrant independent of the tainted knowledge or evidence that they had previously acquired or viewed. Source: 12 NJL 1071. _________________________ Thank you for reading our newsletter! God Bless America USA #1 Kenneth Vercammen 2053 Woodbridge Ave. Edison, NJ 08817 NEW PHONE 732-572-0500 New (Fax) 732-572-0030 website: www.njlaws.com Editor's Note and Disclaimer: All materials Copyright 2003. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included. 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