State of New Jersey v. Frank McVey ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3152-22
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FRANK MCVEY,
Defendant-Respondent.
___________________________
Argued June 4, 2024 – Decided July 2, 2024
Before Judges Gooden Brown, Puglisi and Haas.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Somerset County,
Indictment No. 21-10-0317.
Bethany L. Deal, Deputy Attorney General, argued the
cause for appellant (Anthony A. Picione, Acting
Warren County Prosecutor, attorney; Anthony J.
Robinson, First Assistant Prosecutor, of counsel and on
the brief).
Michael Critchley argued the cause for respondent
(Critchley, Kinum & Luria, LLC, attorneys; Michael
Critchley, Amy Luria, and Armando B. Suárez, on the
brief).
Bethany L. Deal, Deputy Attorney General, argued the
cause for amicus curiae Attorney General (Matthew J.
Platkin, Attorney General, attorney; Bethany L. Deal,
of counsel and on the brief).
Matthew S. Adams argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New
Jersey (Fox Rothschild LLP, attorneys; Matthew S.
Adams, Marissa Koblitz Kingman, and Krista N.
Hartum, on the brief).
PER CURIAM
By leave granted, the State appeals from the February 8, 2023, Law
Division order disqualifying the Warren County Prosecutor's Office (WCPO)
from representing the State in the criminal prosecution of Frank McVey based
on a personal conflict of interest of then Warren County Prosecutor (WCP)
James Pfeiffer. The State also appeals from the May 8, 2023, order denying
reconsideration of the disqualification. The disqualification order effectively
required the Attorney General (AG) to supersede the WCP in prosecuting
McVey pursuant to N.J.S.A. 52:17B-107(a). Based on the events that have
transpired since we granted the State's motion for leave to appeal, we dismiss
the appeal as moot.
Frank McVey is a local public official of Phillipsburg, having served as a
council member since 2018, council vice president since 2020, and, most
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recently, as its president in 2021. On November 8, 2021, McVey was indicted
and charged with two counts of second-degree official misconduct and one count
of fourth-degree criminal coercion. The charges stemmed from two separate
events, one occurring in 2020 and the other in 2021.
The first event involved a threatening email allegedly sent by McVey to
Mayor Todd Tersigni on December 29, 2020. Despite having known each other
since high school and served on the Phillipsburg council together since McVey
joined in 2018, McVey and Tersigni were political rivals. In the December 2020
email, McVey allegedly told Tersigni:
I'm not quite sure how things will work out on our
reorganizational meeting, but assuming if I was to
elevate my current vice president position to president,
let this email serve notice.
At no point in time will you approach the town
clerk, or any employee within her supervision purview,
without approaching me first. If I even hear an inkling
of a conversation without authorization of the council
president, I will be sitting in your office within [thirty]
minutes.
McVey allegedly added that Tersigni should not complain to the township
attorney about the email or McVey would "plaster all over social media how
[Tersigni had] beaten women to submission to the point of reaching the front
page of the Express Times."
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The second event involved a series of email messages between McVey
and certain local government officials that escalated to an allegedly
inappropriate use of the 9-1-1 system. The second incident began when McVey
allegedly sent an email at 9:41 a.m. on August 13, 2021, to the Phillipsburg
Business Administrator requesting "all calls for service, operations and/or
accident reports" on a town-owned vehicle driven by Mayor Tersigni, claiming
that the inquiry was related to "possible outside insurance inquiries." By noon
the same day, the Business Administrator relayed McVey's inquiry to Police
Chief Robert Stettner and Police Captain Michael Swick, requesting a response.
When no response was forthcoming, at 4:42 p.m. the same day, McVey
allegedly sent another email to the Business Administrator, Stettner, and Swick,
copying Tersigni and others, asking, "[w]here do we stand with this?" At 5:34
p.m., McVey allegedly followed up again, writing:
Maybe most of you (not the cc) work Monday
through Friday[,] 7 to 3[,] but I don't with this position.
Somebody give me an answer and respect the $.35 an
hour that I'm getting for this job. If I don't receive
correspondence by 6 [p.m.] I will be calling 911 asking
for an officer to come to my house and to give me an
answer on this inquiry.
As promised, at 6:12 p.m., McVey allegedly dialed 9-1-1, "informed the
dispatcher that the call was 'non-emergency,'" "identified himself,"
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and "request[ed] a welfare check by the Phillipsburg Police on . . . Chief
[Stettner] and Mayor [Tersigni] as he had not heard from them in twelve hours ."
When Lieutenant Sandor Gal responded, McVey reiterated the reasons for his
welfare check request, including that he was "'concerned for'" Chief Stettner and
Mayor Tersigni. Gal confirmed that Stettner and Tersigni were well, and
Stettner referred the matter of the 9-1-1 call to WCP Pfeiffer who "asked to see
everything." Stettner delivered the materials to Pfeiffer as requested on August
16, 2021.
After reviewing the referral but prior to any investigation, Pfeiffer recused
himself due to a personal conflict of interest, and delegated prosecutorial
authority to then First Assistant Prosecutor (FAP) Anthony Robinson, who
assumed complete supervision of the case. Pfeiffer recused himself because
approximately fifteen years earlier, when he had been a partner at a private firm,
he had represented Tersigni in a domestic violence matter. Once the domestic
violence matter was terminated with the dismissal of the temporary restraining
order (TRO) filed against Tersigni, the relationship between Tersigni and
Pfeiffer ended.
After Robinson assumed responsibility for the handling of the case, on
August 17, 2021, he approved the issuance of a complaint-summons charging
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McVey with fourth-degree false public alarms, N.J.S.A. 2C:33-3(e) ("A person
is guilty of a crime of the fourth degree if the person knowingly places a call to
a 9-1-1 emergency telephone system without purpose of reporting the need for
9-1-1 service."). Following a complete investigation, a proposed five-count
indictment against McVey was presented to the Warren County Grand Jury.
The proposed indictment charged McVey with second-degree official
misconduct in connection with the December 29, 2020, email, N.J.S.A. 2C:30-
2(a) (count one); second-degree official misconduct in connection with the
August 13, 2021, 9-1-1 call, N.J.S.A. 2C:30-2(a) (count two); second-degree
pattern of official misconduct related to both events charged in counts one and
two, N.J.S.A. 2C:30-7(a) (count three); fourth-degree criminal coercion related
to the December 29, 2020, email, N.J.S.A. 2C:13-5(a)(7) (count four); and
fourth-degree false public alarms pertaining to the August 13, 2021, 9 -1-1 call,
N.J.S.A. 2C:33-3(e) (count five). On November 8, 2021, the grand jury indicted
McVey on counts one, three, and four, and returned a no bill on counts two and
five. Count three, charging a pattern of official misconduct, was dismissed by
the trial court on the State's motion on the ground that it was legally
unsustainable.
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After discovering WCP Pfeiffer's prior relationship with Tersigni, McVey
moved to disqualify the WCPO, arguing the prior relationship created a conflict
of interest that "tainted the entire WCPO's investigation." McVey also moved
to dismiss the indictment. In opposition, the State confirmed Pfeiffer's prior
representation of Tersigni, but argued that Pfeiffer's early recusal and
assignment of the case to FAP Robinson did not taint the entire thirteen-member
WCPO.
Following oral argument, on February 8, 2023, the motion judge issued
an order and written opinion granting McVey's motion to disqualify the WCPO,
but denying McVey's motion to dismiss the indictment.1 As to the former, the
judge ordered that the WCPO was disqualified, and directed that the prosecution
be handled by the Division of Criminal Justice in the AG's office or a sister
County Prosecutor's Office. The judge reasoned:
[McVey] has appropriately pointed to a conflict of
interest regarding a former relationship between the
Prosecutor and the Mayor and argues the Prosecutor's
individual recusal from the matter is not enough. This
court agrees. While the conflict of interest pertaining
to the Prosecutor's former representation of the Mayor
is admittedly remote, since it occurred [fourteen] years
ago, the Prosecutor's former representation of the
Mayor causes this court (and presumably the public), to
1
The motions were transferred sua sponte to the Somerset County Vicinage for
adjudication.
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question whether the decision to prosecute [McVey]
appears politically motivated.
Addressing the circumstances of the recusal, the judge stated,
This court is mindful that the appearance of impropriety
does not absolutely govern here, but there is certainly a
factual question of when and how the Prosecutor
recused himself and delegated prosecutorial authority
to the First Assistant. Indeed, the Prosecutor admitted
to having reviewed all the material only to have a
criminal complaint follow one day after the delegation.
A legitimate question arises as to whether the First
Assistant could truly undertake an impartial material
review of this politically charged complaint in one day.
Although McVey alleged no specific conflict against FAP Robinson
before the trial court, included in the record on appeal are several
communications between Robinson and Tersigni, including "approximately 150
text messages . . . and over 130 emails" exchanged between July 13, 2021, and
March 16, 2023 (emphasis omitted). In a couple of the communications,
Robinson comments, "I imagine they[']re spiraling," "[t]his is just the
beginning," "[i]t[']s desperation," and "[o]ne of their guys has been charged
criminally and they want revenge," presumably referring to the criminal charges
filed against McVey. It is unclear from the record whether these submissions
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were ever presented to the judge, but the judge's written decision makes no
reference to the communications. 2
The State moved for reconsideration of the February 8, 2023, order,
arguing that the WCPO should not be disqualified in its entirety. In support, the
State included a letter dated February 27, 2023, addressed to FAP Robinson
from the AG's office, advising that from the facts presented, there did not appear
to be "a direct conflict [of interest] requiring supersession" by the AG's office
and that the WCPO should continue to prosecute the case and "continue to wall
off Prosecutor Pfeiffer." McVey opposed the State's motion and also moved for
reconsideration of the denial of his motion to dismiss the indictment.
On April 24, 2023, the judge heard oral argument on the parties' respective
motions to reconsider. On May 8, 2023, the judge issued an order and written
opinion denying both motions, finding that the motions did not meet the standard
for reconsideration. Specifically addressing the State's motion, the judge
reasoned that the AG's letter "was never mentioned or brought . . . to the court's
attention prior to . . . February 8, 2023." Further, the judge reiterated that the
WCPO "clearly" has "a conflict of interest," elaborating that:
2
The discovery request for messages between Robinson and Tersigni was
received on March 30, 2023.
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The issue of impropriety remains present as the
[WCPO], small in number, was influenced by the
conflict between [McVey] and [the Mayor], especially
. . . the Prosecutor . . . having represented the Mayor
before in a prior litigation. The fact that Prosecutor
Pfeiffer was not immediately removed from the case
prior to the request for submission of all evidence of the
criminal coercion and misconduct on [McVey's] part to
the [WCPO], clearly demonstrates impropriety. And
although the other assistant prosecutors within the
[WCPO] may have screened off the prosecutor from the
case, Warren County has a very small group of
prosecutors. There is indeed a very real possibility that
the other prosecutors would have been aware or
influenced with knowledge of this case, especially the
First Assistant.
We granted the State's motion for leave to appeal from both orders on June
15, 2023. We invited the AG to participate as amicus, and granted the
Association of Criminal Defense Lawyers of New Jersey's (Association's)
motion to appear as amicus. After the appeal was perfected and oral argument
was scheduled, with McVey's consent, the State requested an adjournment
because Pfeiffer had resigned and the AG had superseded the WCPO, appointing
Anthony Picione as the Acting WCP. We were later informed that Robinson
had also resigned.
During oral argument before us, the State acknowledged that with the
AG's supersession of the WCPO, although the appeal was not moot, the conflict
of interest underlying the dispute was moot. We believe this is a distinction
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without a difference. There is no cross-appeal challenging the indictment on the
ground that the indictment was tainted by the conflict of interest. There is only
the State's appeal, arguing that the judge misapplied the standard for evaluating
disqualifications based on a conflict of interest and forced "compulsory
reassignment" of the case upon the AG's office in violation of the separation of
powers doctrine and N.J.S.A. 52:17B-106.3 We believe that the appeal in its
current posture is moot.
"Courts normally will not decide issues when a controversy no longer
exists, and the disputed issues have become moot." Betancourt v. Trinitas
Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010). "A case is technically moot
when the original issue presented has been resolved, at least concerning the
parties who initiated the litigation." Ibid. (quoting DeVesa v. Dorsey, 134 N.J.
420, 428 (1993) (Pollock, J., concurring)). Stated differently, "[a]n issue is moot
when the decision sought in a matter, when rendered, can have no practical effect
on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super.
254, 257-58 (App. Div. 2006) (internal quotation marks omitted) (quoting N.Y.
3
The AG supports the State's position, and the Association supports McVey's
opposition.
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Susquehanna & W. Ry. Corp. v. State, Dep't of Treasury, 6 N.J. Tax 575, 582
(Tax 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985)).
We will consider an issue notwithstanding its mootness if it "presents a
question that is both important to the public and likely to recur." Clymer v.
Summit Bancorp., 171 N.J. 57, 65-66 (2002); see State v. Harvey, 176 N.J. 522,
528 (2003) (noting that the County Prosecutor's return to the bench "rendered
moot any conflict that might have arisen because of [his] prior status as
prosecutor"); see also State v. Hackett, 166 N.J. 66, 70 (2001) (electing to
resolve criminal appeal even though defendant had passed away because case
involved "important public issues in need of resolution"); State v. Gartland, 149
N.J. 456, 464-65 (1997) (observing that resolving issues that are both significant
and likely to recur "is worth the judicial effort"). Because we do not believe the
issue presented in this appeal meets the governing standard, we elect to dismiss
the appeal as moot.
In reaching this decision, we are mindful that in State v. Smith, 478 N.J.
Super. 52, 55 (App. Div. 2024), we recently considered "whether an entire
county prosecutor's office must be recused from a criminal prosecution when
the county prosecutor has a personal, disqualifying conflict." There, the
defendant, who was charged with multiple criminal offenses initiated by a
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Monmouth County Prosecutor's Office (MCPO) gang task force, "moved to
recuse the entire MCPO from prosecuting him" because the Monmouth County
Prosecutor had represented him "[f]or approximately seven months" while
"engaged in the private practice of law" over a year earlier. Id. at 55-56. Since
becoming the Monmouth County Prosecutor, the Prosecutor "ha[d] been
screened from th[e] case" and "had no communications about th[e] case with
MCPO prosecutors and investigators assigned to it." Id. at 65.
After considering the applicable Rules of Professional Conduct (RPC) as
well as New Jersey caselaw, and canvassing the disqualification rule adopted in
other jurisdictions, we affirmed the trial court's order denying the defendant's
disqualification motion. Id. at 67; see RPC 1.9 (addressing conflicts of interest
related to former clients); RPC 1.11 (addressing successive government and
private employment); RPC 1.10 (imputing conflicts among lawyers in a private
law firm).
We held:
We, therefore, adopt the majority rule and
conclude automatic disqualification of the entire
prosecutor's office is not required. Instead, this rule
requires disqualification of the entire prosecutor's
office only where the prosecutor was not effectively
screened or has shared confidential information he or
she learned while representing the defendant. In short,
our analysis of the law on conflicts and our
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consideration of the policies embodied in the RPCs
support a rule where individual, personal conflicts of
county prosecutors are not imputed to the entire office.
. . . A more flexible rule is particularly well-
suited in New Jersey because the State Attorney
General has ultimate supervision over county
prosecutors. While the county prosecutor supervises
the county office, the county prosecutors and the county
prosecutors' offices are ultimately subject to the
Attorney General's supervision and control. N.J.S.A.
52:17B-103; see also Yurick v. State, 184 N.J. 70, 79-
80 (2005) (explaining the Attorney General's
supervisory powers over county prosecutors).
Consequently, the Attorney General may supervise a
county prosecutor and his or her office and, where
appropriate, decide to step in and take over a
prosecution. N.J.S.A. 52:17B-106 to -107; Wright v.
State, 169 N.J. 422, 438 (2001) (explaining that "'the
Attorney General's supersedure power appears to have
been bestowed with the understanding that it was
intended to ensure the proper and efficient handling of
the county prosecutors' "criminal business"'" (quoting
Coleman v. Kaye, 87 F.3d 1491, 1501 (3d Cir. 1996))).
So, unlike the situations where other states have
adopted a per se rule, in New Jersey the county
prosecutor is not the ultimate supervisor because that
responsibility rests with the Attorney General. Thus,
we are satisfied that the Attorney General's supervision
over county prosecutors will ensure that complete
disqualification of the entire prosecutor's office is not
necessary so long as the county prosecutor is properly
screened and has no oversight of the matter.
[Smith, 478 N.J. Super. at 64-65.]
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Under N.J.S.A. 52:17B-106, the AG has the broad power to supersede the
County Prosecutor
for the purpose of prosecuting all of the criminal
business of the State in said county, intervene in any
investigation, criminal action, or proceeding instituted
by the county prosecutor, and appear for the State in
any court or tribunal for the purpose of conducting such
investigations, criminal actions or proceedings as shall
be necessary for the protection of the rights and
interests of the State.
Whenever the Attorney General shall have superseded
a county prosecutor as aforesaid, the county prosecutor,
the assistant county prosecutors and other members of
the staff of the county prosecutor shall exercise only
such powers and perform such duties as are required of
them by the Attorney General.
On a more limited basis, N.J.S.A. 52:17B-107 authorizes the AG in "the
interest[] of the State" to "supersede a county prosecutor in any investigation,
criminal action or proceeding."
Because the AG has already superseded the WCPO pursuant to N.J.S.A.
52:17B-106, whether we affirm or reverse the judge's disqualification order
effectively requiring the AG to supersede the prosecution of McVey is of no
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moment because the AG has already taken over the prosecution by virtue of his
supersedure of the entire WCPO. 4 Accordingly, the appeal is moot.
Appeal Dismissed.
4
To underscore the point that the WCPO has been superseded by the AG, the
same attorney representing the AG's office as amicus curiae represented the
State during oral argument before us.
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