Ken Vercammen's NJ Laws email newsletter August 21, 2003 #131 In this issue: 1. Car Accidents- Doctor Certification Must Contain Necessary Language 2. No imprisonment where eluding did not create risk of injury 3. Stalking reversed where court did not sever stalking and contempt trials Thank you to Summer 2003 Law Clerks ________ 1. Car Accidents-Doctor Certification Must Contain Necessary Language. Tierra v. Salazar 356 NJ Super. 586 (App. Div. 2003). To withstand summary judgment under N.J.S.A. 39:6A-8(a) of the Automobile Insurance Cost Reduction Act to avoid dismissal of a personal injury lawsuit, the physician's certificate of permanency must contain the necessary language for a certification, but plaintiff should be given a reasonable time to cure a defect before the complaint is dismissed for failure to provide the certification. 2. No imprisonment where eluding did not create risk of injury State v. Moore A-4182-01T4 (App. Div.). Since a defendant convicted of third-degree eluding is not subject to a presumption of imprisonment, but one convicted of second-degree eluding, even if a first offender like this defendant, is subject to a presumption of imprisonment, this is an appropriate case in which to require strict construction against the State of a penal statute: eluding a law-enforcement officer in a motor vehicle is not elevated from a third-degree to a second-degree crime where, as here, the defendantıs unlawful conduct created a risk of death or injury to himself, but to one else. Source: 171 N.J.L.J. 1198 3. Stalking reversed where court did not sever stalking and contempt trials State v. Lozada A-2295-01T4 (App. Div.). Stalking is a crime of the fourth degree unless committed in violation of a restraining order, and where, as here, a defendant is charged with third-degree stalking based on his alleged violation of a domestic-violence restraining order, and also with a fourth-degree contempt of that order, severed sequential trials are required; whether there was stalking should be tried first without reference to any element, including a restraining order, that could elevate it to a third-degree crime; if defendant is found guilty, the trial court should then try the degree before the same jury, first taking whatever additional proofs that are necessary and then charging the jury as to the element that would elevate the crime to the third degree; the contempt charge may be tried along with the degree of stalking; here, where the trial court refused to sever, both the stalking conviction and the contempt conviction, which was based on the stalking, must be reversed and the matter remanded. Source: 171 N.J.L.J. 736 4. State v. White Essex County, Docket No. 2-4-1651 (Law Div.). The program established by the Newark police department of random, suspicionless and warrantless stops of taxicabs to increase driver safety is unconstitutional under the test announced in Brown v. Texas, and the bag that contained vials that tested positive for cocaine, which was seized when the in which the defendant was riding was stopped pursuant to the program, is suppressed; although there is a legitimate public interest in protecting the safety of taxi drivers, there was no evidence of effectiveness of random, suspicionless stops or of the utility of less intrusive methods, drivers and owners could not opt out of the program so there was no consent, and there were no external decals alerting police to a consenting driver or internal decals so advertising passengers; moreover, the State's regulatory function does not authorize warrantless suspicionless stops since the seizures are not necessary to achieve driver safety or to further the regulatory scheme, and the inspection is not a constitutionally adequate for a warrant as it does not advise the property owner that a search can be made pursuant to law and properly define the scope of the search and it allows unfettered discretion of the inspecting officer. Source: 171 N.J.L.J. 1226 _____________ 5. Law Clerk Internships Our "Law Clerk Mentor/Internship Program" is now in its 12th year. Our volunteer students have learned while working in a busy law office and dealing with real clients. Students interested in a career in law obtain experience in law office procedures, preparing legal correspondence, and assisting clients. Our website www.njlaws.com has details on the internship requirements and the "Volunteer Legal Intern" information sheet. This is a continuous program year round. We have been approved by many New Jersey and nearby law schools and colleges, including Rutgers, Kean, Rider, Monmouth, Scranton, Yale, Duke, Princeton, and NYU. Thank you to Summer 2003 Law Clerks Michael Kontos - Pace Law David Moore - New York Law Ray Law - New York Law Alecia Daniel - Western New England Law Dan Megaro - Quinnipiac Law School Mike Katzen - University of Delaware Angela Siew - Brown University Antony Farag - Rutgers, New Brunswick _______________________ Office opening social for clients and friends- Thursday, August 21 6-8 pm ________________________ 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. Always schedule an office appointment with an experienced attorney when you have a legal matter. The Rules of Court limit an attorney's ability to discuss matters over the phone. 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