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Newsletter Date

Caption describing picture or graphic.

SPRING 2013

Inside This Issue … New Members Page 2

What’s New Page 2

A Matter of Taste Page 3

State Bar Report Page 4

Book Review Page 5

Family Law Update Page 6

Law Day Page 6

Law Day Photos Page 7

McGillicuddy Page 9

McGillicuddy Page 10

Per Diem/Cassified Page 15

Ocean Side Bar

Official Publication of the Ocean County Bar Association

Ocean County Court House P.O. Box 381

Toms River, NJ 08754

Director—Karin Poola (732) 240-3666

President - Laura M. Halm (732) 363-0777

Ducey's Dispatch The build-up for something exciting always seems to take forever and then the actual event is over in a blink of an eye. This is true for weddings, vacations and also I have recently found it true for holding the office of President for the Bar Association.

My journey towards the President’s position began when I was in law school in Miami and was offered a job by Judge Clyne as a law clerk. The year was phenomenal and it was an easy decision to stay here in Ocean County to practice law. I took a position with 2 people who are not only great attorneys but great men, Jim Barry and John Prin-diville. They encouraged me to join the Bar Association and more than encouraged me to go to the dinners and events.

After joining I really enjoyed the friendly stories and good times shared by such people as Judge Giovine, Billy Cunningham, Phil Miller, Walt Must, Lou Christos, John Foti and Frank Salzer. Although they probably do not remember even talking with me back then, it was them telling me about the fun good old days of the Bar Association that kept me interested and made me want to get involved to a greater extent.

After that President Margie McMahon was kind enough to name me the Young Lawyer Liaison in 2000. President Greg Sharkey named me the Young Lawyer of the Year in 2001 and finally President John Cerefice named me as a Trustee in 2002 where I began the long climb which culminated here in 2012-2013 as Bar President. I followed in the steps of Natalie Pouch, George Koukos, Ed Kasselman, Walt Must, Bill Kelly, Eli Ey-tan, Sal Martino, Alan Cornbaltt, Jeff McWeeney, and Art Leyden. I thank them all for making the Ocean County Bar Association as great as it is and I give out a sigh of relief that I did not destroy any of the work that these fine people did in the past and I am happy that I am leaving the organization in the capable hands of Laura Halm who will do a great job.

I have formed many friendships that would not have even existed if not for the Bar As-sociation. One is with Karin Poola who is the lifeline of the Bar Association and with-out her help the organization would fall apart and I thank you for making my year a suc-cess.

I share this article not for myself and not for those mentioned but for the younger attor-neys out there who may be reading this. Please know that my life would not be the same without the Bar Association. I strongly encourage you to join if you are not a member and if you are a member get involved. Trust me there will be a day where you will have great stories that you can share with the next generation of attorneys when the time comes.

If I can provide any advice or any of my own stories of my experience in the Bar Asso-ciation please come up to me at a meeting or call me at 732-458-5600.

Thank you all for allowing me to serve as your President in 2012-2013.

President : Laura M. Halm

First Vice President: Maryanne Calvetto

Second Vice President: Eugenia M. Lynch

Treasurer: Richard M.Sevrin

Secretary: Ronald E. Prusek

Trustees : Terrance L. Turnbach

Daniel D. Olszak, Jr.

Lynne A. Dunn

Renee T. White

Stacie Brustman

Marianna Pontoriero

Matthew Sage

Christine L. Matus

Adam J. Steuerman

Jamie L. Schron

Young Lawyer Liaison: Karin Sage

State Bar Trustee: Richard M. Sevrin

Immediate Past President: John G. Ducey

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MICHELE ALCALDE

ADAM M. CARMAN with

Carluccio, Leone, Dimon, Doyle & Sacks

KENNETH J. SYLVESTER with

Cooper, Levenson, April, Niedelman & Wagenheim

JAMES TREANOR

DAVID M. YORK with

Novins, York & Jacobus

Construction is currently underway to convert the courthouse Law Library into the Legal Research and Information Center ("LRIC"). The end result will be a multi functional legal research and resource center. There will be 3 - 4 computer terminals outfitted with word processing capabili-ties, limited internet and Lexis/Nexis, none of which was previously available at the law li-brary. Though there will not be “private” meeting space in the LRIC, there will be tables in the center where attorneys would be able to comfortably con-duct legal research and/or meet with clients. Cur-rent Judiciary protocol prohibiting employees from providing legal advice to court users will not change, and as such, NO LEGAL ADVICE will be provided at the LRIC. Further, all requests for at-torney referrals will continue to be referred to the Ocean County Bar Association. A Summer open-ing is expected. More details to follow.

I recently viewed an episode of Gordon Ramsey’s KITCHEN NIGHTMARES, the reality show where the famous chef attempts to impose his will on a fail-ing restaurant in a heroic effort to save it. On this episode, for the first time ever, Chef quits the show and walks out because the owners refuse to acknowl-edge their terrible food and bad attitude. The wife is chef: she is a delusional snit who demeans any diner who finds fault with her genius. Her much older husband keeps his charming spouse happy by yelling at customers who complain about the frozen ravioli and overseasoned fish or, if he’s not in a belligerent mood, he discards their unwanted food without tell-ing his wife and asks the diners to leave and never come back. A real sweetheart, he also keeps the young servers’ tips for the house, while paying them a meager hourly wage.

Gordon Ramsey is the most popular celebrity chef on TV because he is the culinary world’s “bad boy,” a tough guy who yells and curses his way to gastro-nomic competency, if not perfection. Yet, when faced with this truly delusional and sociopathic cou-ple, Ramsey remains calm and collected. He senses that he is in the center of an unholy tornado; he does-n’t need to add wind. His schtick usually works – in real life and on tv – because the objects of his right-eous indignation acknowledge his credibility and ac-complishments. He has their respect, though rarely their affection. If that is missing, the schtick fails, like trying to sell bibles to atheists or time shares to inmates.

Our most difficult clients present the same challenge, and occasionally when we can’t break through, the wiser course is to stay calm, wish them well, and make a graceful exit. Thank you, Chef, for keeping your cool and reminding us that we are not alone.

Product of the Month: I’ve become a huge fan of the blue agave plant: mother of tequila, mescal, and a terrific syrup. The plant itself is a big, spikey, ugly

desert dweller, native to Mexico. A 50 year old specimen was cultivated in a Boston greenhouse and it’s bloom burst through the glass roof. You can see it on You TUBE. The syrup (I like Wholesome brand Organic Blue Agave) is slightly sweeter than sugar, vaguely smokey and floral, and is a perfect sugar substitute. It has a low glycemic index mean-ing it is absorbed slowly into the body preventing spikes in blood sugar. While I still favor Grade B Maple syrup to sweeten thick sauces, tomato gravy, and on my pancakes, I use the Blue Agave syrup in margaritas, iced tea, sangria, baking, and marinades. Thin it out with a little hot water to use as a beverage sweetener. Be sure to buy the “Organic” designated brands to avoid pesticides and herbicides. The undi-luted syrup, mixed with a bit of fish sauce, lime juice, garlic and sesame oil makes a killer salad dressing, or a quick marinade for grilled salmon.

If you are in the Montclair area, be sure to check out the Pig & Prince Restaurant and Gastrolounge at 1 Lackawanna Plaza. Tremendous ambiance: the main dining room was the former waiting room of an ancient train station, with fifty foot vaulted ceilings, exposed brick walls, and a sexy 300-pound brass clock. They open at 4 p.m. for drinks and/or dinner. I love their sweetbread soufflé and perfect seared scallops with lobster risotto. Worth the trip.

Be very careful eating local clams and oysters this summer. Sandy stirred up a lot of goop and toxins from the bay and ocean floors, and I might let a sea-son pass for things to settle down before taking that chance. Just saying…

Till Next Time ...

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Richard Sevrin, State Bar Trustee

As all of you know, voting began April 15, 2013 and ended on May 6, 2013 for the offices of State Bar Asso-ciation. Voters casted their ballets electronically or by paper ballet. The results of the election are as follows:

Candidates

Second Vice President:

Nancy Erica Smith 1,847 votes Thomas H. Proll 1,058 votes Kenneth Vercammen 1,821 votes

Secretary:

John E. Keith, Jr. 2,035 votes Bonnie Bloom Goldsamt 1,319 votes

At Large Bar Association Trustee:

Christine A. Amolfe 1,249 votes Christine Vassiliou 846 votes Amy Sarah Cores 761 votes Marla Marranucci 588 votes

The New Jersey State Bar Association bylaws provide that when no candidate receives a majority of the votes cast, there will be a runoff election. Article V of the by-laws respecting elections say that where there are more than two individuals competing for a position with more than one vacancy, the nominees with the highest number of votes shall be elected to the vacant positions, regard-less of whether any one nominee receives a majority of votes. Where there are more than two individuals com-peting for a position with one vacancy, a nominee must receive a majority of votes to be elected. If, after the first round of balleting, no nominee receives a majority of votes where a majority is required, or there is a tie vote among nominees for any position, the election committee shall cause appropriate ballets to be prepared in accor-dance with these bylaws for the nominees receiving the two highest numbers of votes or the nominees who are in a tie. Voting for the nominees shall be transmitted within thirty days of the annual meeting which recently took place and shall be returned to the Association Headquar-ters.

Based upon the circumstances it is requested that the members of the New Jersey State Bar Association vote for their candidates to the positions when the ballets are transmitted by email.

Questions on the ballets resulted in modifications to the bylaws of the New Jersey State Bar Association as fol-lows. These were all approved by 2/3rds of the votes. The results were:

The approval of the proposal to improve the requirement for Officers and Trustees to be eligible to serve as Trus-tees or Officers, “a member’s practice of law shall be pri-marily in the State of New Jersey”.

A further proposal to the bylaws was approved requiring members of the Board of Trustees to maintain an active email account and to clarify the Board may act on urgent matters by email under certain conditions.

A further modification to the bylaws was clarified that no member may serve in more than one Officer or Trustee position at any one time. A Trustee elected to an Officer position is deemed to have resigned from his or her Trus-tee post at the end of any potential challenge period with-out opposition and the resignation is effective upon the start of service as an Officer.

A proposal was approved to clarify that the Board of Trustees has the authority to reorganize sections or divi-sions that have become inactive.

Approval of the bylaws provided for a proposal to include the immediate past President on the judicial and prosecu-torial appointments committee.

As all of you know the Bar Association Annual Conven-tion took place at the Borgata Hotel between May 15th and May 17, 2013. As everyone should know this was a transfer from the Revel Hotel in Atlantic City to the Bor-gata which was voted on and determined by the Board of Trustees and Officers of the Bar Association.

Well attended this Annual Convention resulted in a re-cord breaking excess of 2,300 participants in Seminars conducted through the New Jersey Bar Association and the Institute of Continuing Legal Education.

On an important note, it has been brought to my attention as Ocean County Bar Trustee, that there are issues cre-ated by certain banks which have refused access to Ex-ecutors or Executrix to obtain Wills and that the release of funds have been delayed. I would appreciate any who are involved in these issues for their clients that you send me an emailrsevrin@lomurrolaw.com. I would like to present this to the Board of Trustees and Elder Law Sec-tion along with the Banking Section in order to obtain some investigation and commentary. Please submit to me an email as it would be much more accurate and concise to provide the factual experiences of the those attorneys with bank issues in their practice.

I thank you for your submission in advance.

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The Omnivore’s Dilemma, A Natural History of Four Meals - by Michael Pollan

One of the ten best books of the year according to the New York Times documents and traces our food (even the Twinkie) via the three principal food chains; industrial, organic and hunter-gatherer.

The award winner author, Michal Pollan, starts this investigation with the concept of “what should I eat” (a question that my wife and I ask each other all the time). This Omnivore’s Dilemma, (developed in a 1976 paper by Paul Rozin) Pollan takes further by finishing the thought “what is this that I am eating?” and further, “I wonder where it came from?” Pollan’s book is a deep and through trip into understanding how our society and culture has changed how and what we eat. His goal was to trace a meal back to its original source. The path he discovers is fascinating, scary and – no pun intended – disgusting (see CAFO – Concentrated Animal Feeding Operation).

The first part of the book tells the story of corn – and shows how far this humble food has come to be more of an industrial commodity which hardly resembling the food of Native America. Con-sider that a trip to McDonald’s (one out of every three kids in America eats fast food once a day) where pretty much everything you order is made from corm – the Coke (high fructose corn syrup), the Fries, (cooked in some form of corn oil), the Burger (grow on a diet of corn), the Chicken McNugget (grown on, mixed with and coated with corn). The story of corn is epic – in both its genetic enhance-ments and its pervasive use in everything – including powering our machines. Eighty percent of all farms in America grow corn and soy – and are subsidized at $5 billion per year. Corn is no longer a food as much as an industrial commodity - one that costs more to grow than sell.

The second food chain explored by the author is organic. The author’s style of writing in this section takes the form of a mystery novel – where the big whodoneit is “what does organic mean?” Well, the answer was not good. Again, what first appeared in Berkeley, California, in the People’s Park, an attempt to move away from the industrial/military complex by growing your own food - has – you guessed it – been co-opted. Now, the biggest organic food producer is owned by General Mills and need I say more. A “free range” chicken has neither freedom nor range, likewise “grass fed” beef eats more corn then grass. Unfortunately, organic food has become the biggest growing sector of food estimated at $11 billion a year. When that much money is involved – bad things happen.

The author finishes the book with his own – cave man attempt – to hunt and gather his own meal. Having none of the skill, (firing a gun, picking wild produce - especially wild mushrooms) the author shares his adventure with a mentor and the path to his meal.

For those who may be interested in food (I would suggest we all read this book) and “what is this that I am eating” this is an incredible book. I enjoyed reading it and getting a much better grasp on what really is in our supermarkets and where it comes from. Until next time – have a great and safe summer and be mindful of what you eat….

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As my year as Family Law Chair comes to an end I want to thank all of the members of this committee for your support, participation and commitment to our meetings, programs and seminars. We have, and continue to be, one of (if not the) largest and most active committees of the OCBA. Thank you, as well, to the Family Part Judges who continued to join us during alternate monthly meetings. It has always been said that OCN has a unique and special bench/bar relationship and I think the Family Part exemplifies that. Enjoy the summer and we will see you in September. If you wish to be considered for committee membership next year you must submit a completed committee request form to Karin Poola. Along with requests we will be considering prior attendance and participation so we can insure a healthy, active committee. As for next year we al-ready have a seminar in the works on handling DYFS (now DCPP) cases.

Jill L. Thiemann, Esq., Chair

Law Day LV was celebrated on Wednesday, May 1, 2013 in Historic Courtroom #1. This year’s Law Day theme, “Realizing the Dream: Equality for All,” provided an opportunity to explore the move-ment for civil and human rights in America and the impact that it has had in promoting the ideal of equality under the law.

Presiding over this year’s ceremony as the Honor-able Vincent J. Grasso, A.J.S.C. who turned the pro-gram over to Co-Chairs Linda Kelly, Esq. and Adam Steuerman, Esq. The ceremony opened with the Pledge of Allegiance, Preamble and singing of the Grand Old Flag by Mrs. Rochelle and Ms. Brown’s Kindergarten class from the Ocean Early Childhood Center. Opening remarks delivered by President John Ducey was followed by a perform-ance of the Star Spangled Banner by students from Cedar Grove Elementary - Ms.D’Amato’s 2nd Grade Class. Students from Cedar Grove Elemen-tary and Ocean Early Childhood Center performed

patriotic songs through the ceremony.

The principal address was presented by Maysa Abou-Youssef Hayward, Dean of E-Learning, Ocean County College. She emphasized this year’s theme by comparing the everyday rights enjoyed by all Americans to the injustices suffered by the peo-ple of her native Egypt.

Following the principal address the Ocean County Mock Trial Competition Award was presented to MATES by Maryanne Calvetto, Stacey Brustman and John Ducey. Attorney coach Elizabeth Leahy, teacher coach Michael McNamara and members of the winning team were present to accept the award.

John Ducey announced the names of Sabrina Wor-thy and Pina Cirillo as this year’s Ocean County Bar Association Memorial Scholarship recipients.

The Bar Association’s Thirty-Fourth Officers and Trustees Law Day Awards were presented to Jamie Schron, who received the John J. Hoffman Memo-rial Young Lawyer Award. The Award was pre-sented to Jamie by the Honorable Madelin Ein-binder. The Honorable Edward Turnbach presented the Achievement Award to long time friend and col-league Charles Starkey. Art Leyden presented this year’s Citizenship Award to Hometown Heros who have been instrumental in providing Hurricane Sandy relief. The Honorable James Blaney pre-sented Brendon Toner with the Excellence in the Administration of Justice Award.

(see page 7 for photo gallery)

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Adam Steuerman, Linda Kelly & John Ducey

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Mock Trial Chairs and Coaches Winning Mock Trial Team

Students of the Cedar Grove Elementary and Adam Steuerman & Maysa Abou-Youssef Hayward Ocean Early Childhood Center

Hon. Madelin Einbinder & Jamie Schron Hon. Edward Turnbach & Charles Starkey

Citizenship Award Recipients with Art Leyden Brendon Toner with Judge Blaney

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We are Ocean County Lawyers since 1970. Our attorneys have been members, offi-cers and supporters of the Ocean County Bar Association for forty years.

1.

You called asking whether Glenn Greenwald (Guardian.Co.UK) is accurate in his observation regard-ing Dzhokhar Tsarnaev’s treatment by the authorities who arrested him, that “ ……it is virtually unheard of for the ‘public safety exception” to Miranda to be utilized to delay advising a criminal defendant of his right to counsel.

I gave serious thought to this question and realized I had no answer. I consequently have passed your inquiry on to James R. Ozol, Esquire of Toms River who is an attorney widely admired in the legal community for his knowledge. Mr. Ozol agreed, kindly, to see me at his palatial offices in Toms River in order that we might discuss this. I had some difficulty obtaining access to Mr. Ozol’s office since he has adopted some rather stringent security rules. I really did not object to the strip search. It did, however, pain me when the guards giggled.

Once through security I was shown to Mr. Ozol’s office by a lady who, obviously, is a Las Vegas showgirl in her “off hours”.

Mr. Ozol was kind enough to pour a generous quantity of reviving liquids for us both.

He then answered my question as follows:

Mr. Greenwald although he cited the public safety exception, is apparently unacquainted with that ex-ception.

It is useful to examine Miranda (1) carefully. On the first page of Miranda Justice Warren pointed out “We deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which accrue that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself”.

The Court defined the procedural safeguards to be employed, as follows:

“Prior to any questioning, the person must be warned that he has a right to remain silent, that any state-ment he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights provided the waiver is made voluntarily, knowingly and intelligently”. (2).

Up to this point, Mr. Greenwald’s observations are squarely within the framework of Miranda.

There is, however, more to this argument. Mr. Greenwald acknowledges that there exists a “public safety exception” to the Miranda requirements, however he asserts, “…it is virtually unheard of for the ‘public safety’ exception to be used to deny someone their right to a lawyer as opposed to delaying a Miranda warn-ing…” In this regard Mr. Greenwald is totally wrong. It is precisely the purpose of the “public safety” excep-tion to Miranda to continue questioning despite the defendant’s request for an attorney, under circumstances where there is an issue of public safety involved. This exception to Miranda was first articulated in New York v. Quarles, (3). Factually, Quarles, was charged with criminal possession of a weapon. The complaining wit-ness described her assailant to police officers and told them that the man who had assaulted her had just en-tered a nearby supermarket carrying a gun. Respondent was arrested. He informed the officers where he had secreted the gun. The gun was retrieved. Thereafter, the trial Court excluded respondent’s initial statement and the gun because Quarles had not been given Miranda warnings, and excluded respondent’s other statements as evidence tainted by the Miranda violation. The New York Court of Appeals affirmed, on Miranda grounds. The U.S. Supreme Court reversed citing the “public safety” exception, and explaining:

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“So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts un-known, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it”. (4).

This issue was recently revisited by the 6th C.C.A. in U.S. v. Hodge. (5). In that case a suspect’s home was raided by police and a bomb was discovered after the suspect revealed its existence during question-ing by police that took place without reading his Miranda rights to the suspect. The Court was asked to deter-mine whether evidence of the bomb gleaned from his statements to police should be suppressed. The 6th Cir-cuit held that the questioning was well within the public safety exception to Miranda.

The Hodge court quoted Quarles for the proposition that “overriding considerations of public safety could justify a failure to provide Miranda warnings before initiating custodial interrogation” (6).

The factual circumstances involved in Dzhokhar Tsarnaev’s case require no elaboration. The interro-gators had the right, and the duty, to determine whether Mr. Tsarnaev had knowledge of the existence of other bombs, their placement, and technical details as to what future harm might be done to the public by those bombs. It is clearly part of our jurisprudence that the Hodge interrogators acted properly, wholly within the framework of the law squarely within the “public safety” exception of the Miranda ruling.

I thanked Mr. Ozol for his clear, concise, explanation of the law on point and rushed to my humble quarters to pour reviving liquids for myself.

Very truly yours,

Alan J. Cornblatt

________________________________________

(1) 384 U.S. 436 (1966)

(2) 384 U.S. 444 (1966)

(3) 467 U.S. 649 (1984)

(4) 467 U.S. 649, 650 (1984)

(5) U.S. v. Hodge, 6th C.C.A April 19, 2013

(6) U.S. v Hodge, Op cit. quoting 467 U.S. at 651

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