STATE OF NEW JERSEY VS. JOHN C. VAN NESS (13-01-0208, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2728-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. June 2, 2017
APPELLATE DIVISION
JOHN C. VAN NESS,1
Defendant-Appellant.
_________________________
Submitted April 5, 2017 – Decided June 2, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 13-01-0208.
Joseph E. Krakora, Public Defender, attorney
for appellant (Richard Sparaco, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Paul H.
Heinzel, Assistant Prosecutor, of counsel
and on the brief; Lisa Sarnoff Gochman,
Legal Assistant, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
1
Defendant is also referred to in the record as John C. Vanness.
This appeal illustrates how a trial judge denied a
defendant his right to counsel by failing to enforce the
procedural mechanism established by the Legislature and the
Supreme Court to determine if a defendant qualifies for
representation by the Office of the Public Defender. The judge
compounded his error by misapplying State v. King, 210 N.J. 2
(2012), to find defendant was capable of representing himself in
this criminal jury trial. Under these circumstances, our only
recourse is to reverse defendant's conviction and remand this
matter for a new trial.
I
FIRST PUBLIC DEFENDER APPLICATION
On January 28, 2013, a Monmouth County grand jury indicted
defendant John C. Van Ness on three counts of third degree theft
by deception, N.J.S.A. 2C:20-4 (counts one, five, and nine);
three counts of fourth degree passing a check knowing it will
not be honored, N.J.S.A. 2C:21-5 (counts two, six, and ten);
three counts of third degree forgery, N.J.S.A. 2C:21-1a(2)
(counts three, seven, and eleven); and three counts of third
degree uttering a forged instrument, N.J.S.A. 2C:21-1a(3)
(counts four, eight, and twelve).
2 A-2728-14T1
The following day, defendant filed a Uniform Defendant
Intake Report (commonly referred to as a "5A")2 in the vicinage's
Criminal Division Manager's Office to support his request to be
represented by the Office of the Public Defender. See R. 3:8-3.
In the section of the 5A labeled "VIII. Financial Status[,]"
defendant averred that he had a $1200 monthly income and owned
real estate valued at $1.1 million. The document did not
require the applicant to disclose his method of valuation. On
the liability side, defendant revealed he had a $1000 per month
child support obligation and owed $12,000 in fines to other
courts.
On its face, the financial information defendant provided
in the 5A was insufficient to make an informed determination
about his eligibility to be represented by the Public Defender.
Defendant did not reveal the source of his alleged $1200 monthly
income, did not submit his most recent income tax returns, and
did not provide recent proof of employment, such as a W2 or a
letter from an employer. With respect to his house, defendant
neither indicated his mother's ownership interest nor provided a
municipal property tax assessment statement or other
2
The copy of the 5A in the appellate record was provided to us
as part of the State's appendix. The document is redacted to
exclude defendant's personal information.
3 A-2728-14T1
documentation to support the $1.1 million valuation. See
N.J.S.A. 2A:158A-14.
Despite these omissions, the vicinage's Criminal Division
Manager's Office found defendant ineligible for representation
by the Public Defender. Although not reflected in his first 5A,
defendant alleges he informed the Criminal Division Manager's
Office that he had a fifty percent ownership interest in the
house in which he resided with his mother. He also claims the
house was heavily leveraged; he had defaulted on his mortgage
loan and the property was in the final stages of foreclosure.
Defendant was fifty-two years old at the time he applied to
be represented by the Public Defender. He graduated high school
in 1979 and attended college for two years, but did not receive
a degree. His employment history mainly consists of working at
a family-owned motel. He began working at the motel as a
teenager and continued until it closed in 2008 due to eminent
domain. Defendant then worked sporadically as a driver for a
recycling business owned by one of his three older siblings. At
the time he submitted his second 5A, his employment status was
dubious. Defendant alleged he supported himself doing "odd
jobs," but had substantial personal debts outstanding. For
example, he is legally obligated to support two of his children
4 A-2728-14T1
and was delinquent in paying his child support obligations,
accruing approximately $20,000 in arrears.
ARRAIGNMENT TO PLEA CUT OFF
On February 19, 2013, defendant appeared before the trial
court for arraignment. Rule 3:4-2 describes in detail the
procedural steps the trial court must take to protect a
defendant's constitutional rights at this critical stage of the
criminal process.3 Despite these safeguards, the record shows
the trial judge arraigned defendant, even though he was not
represented by counsel. The magnitude of this constitutional
deprivation is best revealed by quoting verbatim the most
significant parts of the arraignment proceeding:
THE COURT: This is Mr. John Vanness. Mr.
Vanness is a codefendant on the previous
matter. He's here on two matters,
Indictment 13-01-50 and Indictment 13-01-208
[i.e., this case]. The 208 matter involves
theft by deception, bad check[s], forgery,
uttering [a] forged instrument, -- it looks
like a series of events that occurred during
November 2012 in Ocean Township. That was
on actually for pre-arraignment, but we are
going to arraign him on that today.
In addition, he has a pending violation of
probation out of Atlantic County.
3
An arraignment is a critical stage of the criminal process that
triggers a defendant's right to counsel under both the Sixth
Amendment and Article I, Paragraph 10 of the New Jersey
Constitution. State ex rel. P.M.P., 200 N.J. 166, 174 (2009).
5 A-2728-14T1
Apparently he's on probation at this time.
I don't know if it overlaps these incidents.
Mr. Vanness filled out a form 5A and does
not qualify for a public defender.
Mr. Vanness, who's going to represent you?
DEFENDANT: At this time, probably myself.
THE COURT: All right. That's fine. A new
case came down that said I can't stop
somebody from representing themselves even
if it's a bad idea for them.4
DEFENDANT: Well, at this time, you know . .
.
THE COURT: I'm going to let you represent
yourself. We're not going to hold the case
up because of that representation.
DEFENDANT: No.
THE COURT: You heard what I said about your
brother's case. If you can work out a plea
offer or a package offer with the State,
they'll dismiss against him. They seem to
feel they have a pretty good case against
you. I will enter not guilty pleas on these
two indictments.
. . . .
THE COURT: [W]hen you come back on March
25, 2013, we're going to go to the next
step.
DEFENDANT: Absolutely.
4
Although the judge did not name the case, we infer he referred
to State v. King, supra, 210 N.J. 2. As we will explain in
Section V of this opinion, we do not agree with the judge's
characterization of the Supreme Court’s holding in King.
6 A-2728-14T1
THE COURT: And you're familiar with the
criminal justice system --
DEFENDANT: Yes, I am.
THE COURT: -- apparently, so you know what's
going to come. Their initial plea offer is
four years flat. You can negotiate with
them on that. By the time we come back next
time we'll be ready to move forward in
setting any dates for motions, if there are
any motions you want to file, so you better
start reading up on that.
DEFENDANT: Yes.
THE COURT: If you're going to have an
attorney here, have him here for a status.
DEFENDANT: Absolutely.
THE COURT: Because once we start off and get
an attorney, after that they are going to
have to come in and be ready to go.
DEFENDANT: Okay.
THE COURT: You will be given the discovery
and the indictment in this matter. It's
downstairs. Because you showed up today, I
will issue an ROR bail which means all you
have to do is sign for it.
. . . .
THE COURT: All right? You have the notice.
You have to be back here on March 25, 2013,
at 9:00 a.m. If you fail to appear, an
order will issue for your arrest. Do you
understand what I have said to you?
DEFENDANT: Yes, I do.
[(Emphasis added).]
7 A-2728-14T1
As this colloquy shows, the judge did not apprise defendant
of his right to have the Assignment Judge or his or her designee
review his 5A application and make a final determination of his
eligibility to be represented by the Public Defender’s Office.
N.J.S.A. 2A:158A-15.1. The judge also did not: (1) inquire
about defendant’s ability or intention to seek private counsel;
(2) make any determination about defendant’s intention to waive
the right to counsel; or (3) assess his capability to represent
himself.
Defendant next appeared before the trial judge on March 25,
2013 for the scheduled status conference. Defendant was still
not represented by an attorney. Despite this, the judge
proceeded without hesitation:
THE COURT: We are here for [a] status
conference today.
The [S]tate's initial plea offers were for
four years flat, New Jersey State Prison.
[Prosecutor,] [h]as there been any
counteroffer at this time[?]
. . . .
PROSECUTOR: There has not, Your Honor.
THE COURT: [Defendant], you are here without
an attorney. Are you going to represent
yourself?
DEFENDANT: Yes, I am, sir.
THE COURT: Okay.
8 A-2728-14T1
The judge asked defendant if he had discussed the case with
the prosecutor. Defendant informed the court that he had
provided discovery to the State in the "Sears case," referring
to Indictment 13-01-208. The judge then asked defendant if he
had "anything to give" the prosecutor with respect to Indictment
13-01-50. When defendant answered, "No," the judge admonished
defendant that he had to provide the State with discovery before
his next court appearance. When defendant said he had given the
State all of the discovery he had concerning the "Sears" case
and was "ready to go" to trial, the judge stated, "That's fine,
but [the prosecutor] gets to choose which case he wants to move
first." The judge concluded the hearing by scheduling a plea
cut off conference under Rule 3:9-3(g).5
Through this exchange, the judge learned defendant was not
aware that if he wanted to read the evidence the State presented
to the grand jury, he had to order and pay for the transcript of
the grand jury minutes. The judge did not ask defendant any
questions about his financial status or whether he had made any
other attempts to qualify for representation by the Public
5
Under Rule 3:9-3(g) a "plea cut off" conference is held
"[a]fter the pretrial conference has been conducted and a trial
date set[.]" Thereafter, "the court shall not accept negotiated
pleas absent the approval of the Criminal Presiding Judge based
on a material change of circumstance, or the need to avoid a
protracted trial or a manifest injustice."
9 A-2728-14T1
Defender’s Office. In short, the judge proceeded as if
defendant’s decision to waive his right to counsel was settled.
Three months later, defendant again appeared before the
court without counsel. The judge advised defendant of his
maximum sentencing exposure. The judge also explained the
potential sentencing consequences that could result if defendant
refused the State's plea offer of four years imprisonment for
both open indictments. Defendant informed the judge that he
wished to proceed to trial.
The judge then asked defendant the following questions
regarding his decision to proceed without counsel:
THE COURT: Have you ever consulted with an
attorney on any of these things?
DEFENDANT: Not . . . on the Sears [matter;]
I've done basically all the research
myself[.]
. . . .
THE COURT: Have you ever represented
yourself in court before?
DEFENDANT: Municipal.
THE COURT: Do you understand that I cannot
prohibit you from representing yourself pro
se?
DEFENDANT: I understand that.
THE COURT: But I'm not going to help you in
the case either.
DEFENDANT: I don't want you to.
10 A-2728-14T1
THE COURT: You're going to be governed by
the rules of court.
DEFENDANT: Yes.
THE COURT: You're going to have to, when you
cross-examine witnesses, ask questions [and]
not make statements.
DEFENDANT: Correct.
THE COURT: If you choose to take the witness
stand in your own defense, which you don't
have to do, you can do that, and you will
respond to the questions that I ask you by
way of a narrative[.]
DEFENDANT: Mm-hmm.
THE COURT: And you also -- do you have a
prior criminal record?
DEFENDANT: I have one felony.
THE COURT: That could be used against you
in that situation where you take the witness
stand.
. . . .
DEFENDANT: That's if I testify.
THE COURT: If you testify.
DEFENDANT: Yeah.
THE COURT: I will sanitize it, so that the
only thing the jury will know is . . .
either the indictment or accusation number,
the date of the sentence, the sentence
itself, . . . and the degree of the crime.
I'm not going to get into the specifics with
the jury of whatever crime you were
convicted. But that will come up, because
there was a charge that I can read to the
11 A-2728-14T1
jury about how that affects your
credibility.
DEFENDANT: Sure.
THE COURT: Are you familiar with all of
that?
DEFENDANT: Yes, I am.
THE COURT: Okay. And are you familiar with
the rules of court? Have you done that
research?
DEFENDANT: Not yet.
THE COURT: Have you -- are you familiar
with the elements of the crimes [with] which
you've been charged . . . ?
DEFENDANT: Yes, very familiar.
THE COURT: Okay. So, you're prepared on
that?
DEFENDANT: Very. Very prepared.
THE COURT: And you still want to represent
yourself?
DEFENDANT: Absolutely.
As the above excerpt demonstrates, the judge did not review
the elements of the offenses on the record with defendant.
Although the judge noted that he would "sanitize" under
Sands6/Brunson7 the information the jury would hear about his
prior conviction if he elected to testify, the judge did not
6
State v. Sands, 76 N.J. 127 (1978).
7
State v. Brunson, 132 N.J. 377 (1993).
12 A-2728-14T1
mention or discuss the State’s intention to use this same
evidence in its case-in-chief under N.J.R.E. 404(b).
As the conference continued, defendant asked the judge if
he was permitted to speak with the State's witnesses and ask
them questions before trial. The judge told defendant he had
the right to investigate the charges against him, including
speaking directly with potential witnesses. The judge warned
defendant to be "very careful with what you say to them, because
you don't want to in any way leave in their mind that you might
be threatening them[.]" The judge failed to inform defendant
that any self-incriminating statements he made to these
witnesses could be used against him at trial under N.J.R.E.
803(b)(1).
At the end of this exchange, the judge made the following
findings:
THE COURT: He has chosen to go pro se. I am
making a finding today that I have advised
him against appearing pro se. I don't think
it's smart. They say the person who . . .
represents himself has a fool for an
attorney. But under [State v. King], I
can't force him to get an attorney. He is
allowed to represent himself under the
constitution . . . , and I'll permit that to
happen, but I'm satisfied he understands the
short-fallings of that and has decided to
appear by himself.
13 A-2728-14T1
Defendant then asked the judge whether he could have "a
legal assistant" to answer his questions during trial. The
judge gave the following response:
THE COURT: Just so you understand, --
DEFENDANT: Right.
THE COURT: -- they will not in any way take
part in the proceedings, other than you can
lean over and ask them certain questions.
DEFENDANT: Correct. Correct. That's what
I'm saying.
. . . .
THE COURT: But if you're going to represent
yourself, you're going to represent
yourself. If I get the sense that this is
actually your attorney just telling you
everything to say, then I'm going to stop
the proceedings and that person is going to
represent you.
. . . .
THE COURT: But I will not discourage you.
If somebody wants to come in pro bono and
sit with you, or take less of a fee to sit
with you, no, absolutely, you can do that.
. . . .
THE COURT: They just have to be a licensed
attorney in the state of New Jersey.
DEFENDANT: No, he is. He is.
. . . .
THE COURT: We are going to proceed [to
trial] . . . regardless of whether he
appears or not.
14 A-2728-14T1
The judge scheduled the trial to start on December 2, 2013.
Thereafter, the State filed the N.J.R.E. 404(b) motion seeking
to introduce statements defendant made at his plea hearing on
May 10, 2010. Defendant did not oppose the motion or appear for
oral argument. In a certification submitted in support of his
motion for a new trial, defendant averred he did not challenge
the State's motion "because [he] did not understand it and had
no legal counsel to help [him]." The court granted the motion
and rescheduled the trial for June 3, 2014.
SECOND PUBLIC DFENDER APPLICATION
For reasons not disclosed in the record, defendant appeared
before the trial judge on June 2, 2014, the day before the
scheduled trial date. The judge noted that the charges against
defendant had "been reduced to six counts because the prosecutor
voluntarily dismissed several of the counts." In fact, the
State dismissed fifty percent of the twelve charges originally
listed under Indictment 12-01-208. The prosecutor characterized
the State's decision to dismiss the charges as reflecting the
true issue at stake: "not whether the checks were forgeries but
whether the checks were bad[.]"
The judge addressed defendant one more time concerning his
decision to proceed without counsel:
15 A-2728-14T1
THE COURT: We had gone through Mr.
Vanness'[s] desire to represent himself. As
I recall, you do not qualify for the Office
of the Public Defender, correct?
DEFENDANT: I might now, yeah.
In response to defendant’s statement, the judge directed him to
complete another 5A form and submit it to the Criminal Division
Manager's Office.
A copy of the second 5A form is attached as an exhibit in
the State's appendix.8 Defendant self-appraised the value of his
real property at $800,000, a reduction of $300,000 from the $1.1
million value he listed in the first 5A. The second 5A also
showed the extent of defendant's liabilities. First, it
demonstrated defendant owed $125,000 in total unpaid debts.
Second, defendant averred his child support arrears had risen
from $20,000 to $23,000. Finally, defendant attached notices
from the Internal Revenue Service showing he owed $36,469.41 in
unpaid federal taxes. The record does not reveal whether the
Criminal Division Manager's Office questioned the authenticity
of these documents.
8
To document his ownership interest in the Neptune property,
defendant attached a deed recorded on February 13, 2003, listing
the name of a woman, purporting to be defendant's sister,
granting defendant an ownership interest in the property as a
joint tenant. Also attached is an Affidavit of Exemption from
the payment realty transfer fees under N.J.S.A. 46:15-10(a).
The affiants assert under oath that the transfer of ownership
interest was "from sister to brother."
16 A-2728-14T1
After the Criminal Division Manager reviewed defendant's
second 5A application, the trial judge stated: "We again ran the
criteria for qualifying for a public defender today. He still
does not qualify for the public defender, [which is] why I will
not assign a public defender as standby counsel." The record
does not reveal the Criminal Division Manager's reasons for
rejecting defendant's 5A. The trial judge did not make any
further inquiries on the matter and again failed to inform
defendant that "[a] determination to grant or deny the services
of the Public Defender shall be subject to final review by the
Assignment Judge or his [or her] designated judge." N.J.S.A.
2A:158A-15.1.
II
THE TRIAL
The trial began on June 3, 2014, and ended two days later.
The State presented evidence showing that on April 30, 2009,
Banco Popular Community Bank notified defendant in writing that
it had closed his checking account. At the time, defendant's
account at Banco Popular had a negative balance of $7,559.23.
17 A-2728-14T1
In November 2012, Jean V. Sarno was employed as the loss
prevention manager at the Sears store in Ocean Township,
Monmouth County. She testified that at 3:30 p.m. on November
11, 2012, defendant purchased an air humidifier, a backup
generator, and a gift card from the store. Defendant paid for
these items with a check in the amount of $995.08, drawn on the
same defunct Banco Popular checking account that had closed more
than three years earlier.
Defendant returned to Sears twice on the following day and
purchased additional merchandise from the same cashier. At 2:45
p.m., defendant purchased high thread-count sheets and two
coffee makers for $957.55. At 3:39 p.m., defendant purchased
more sheets, a television mount, and a third coffee maker for
$930.80. Both times, defendant paid for the merchandise using
checks drawn on his defunct Banco Popular checking account.
Sarno testified that Sears requires its cashiers to follow
a particular procedure when a customer pays for merchandise with
a check. This procedure requires cashiers to insert personal
checks into a slot in the cash register, which verifies the
check's validity by electronically contacting the customer's
bank. When a customer pays for goods using a business check,
the cashiers confirm the check's validity by calling an 800
number. Sears cashiers must also contact one of their
18 A-2728-14T1
supervisors if a customer attempts to pay for goods with a check
in excess of $500.
Shequelle Harris was the Sears cashier who processed
defendant's purchases on November 11, 2012 and November 12,
2012. Sarno testified that Harris failed to follow the
established anti-theft procedures when defendant made purchases
on these two days. Specifically, she did not call the 800
number to verify the validity of defendant's business checks.
Instead, Harris improperly processed all three of defendant's
purchases as cash transactions and subsequently placed
defendant's checks in her cash register drawer.
According to Daniel Schroeder, the manager of Sears's Ocean
Township store at the time, defendant promptly returned all of
the merchandise to other Sears locations in exchange for cash.
A Sears office associate later discovered defendant's checks in
Harris's cash register drawer. The associate alerted Sarno, who
immediately reviewed the store's surveillance videos and
confirmed Harris failed to adhere to the procedures established
for processing check payments. Sarno testified that Banco
Popular refused to honor any of defendant's checks. At this
time, Sarno directed one of her "agents" to contact the Ocean
Township Police Department. Ocean Township Patrol Officer
19 A-2728-14T1
Michael DeSimone arrested defendant when he returned to the
store on November 20, 2012.
At trial, the State called Absecon Police Sergeant Robert
Ponzetti as a witness. Before Sergeant Ponzetti took the stand,
the trial judge gave the following instructions to the jury:
The State's next witness is going to
introduce evidence that the defendant has
previously given testimony under oath in a
prior proceeding regarding his knowledge of
the account at Banco Popular, . . . and his
knowledge of whether checks written against
that account would be honored.
This testimony was given in the form of a
statement under oath involving the writing
of bad checks . . . arising from the
defendant's writing and depositing of a
check drawn against that same account back
in September 2009.
Normally such evidence is not permitted
under our Rules of Evidence. Our rules
specifically exclude evidence that a
defendant has committed other crimes,
wrongs, or acts when it is offered only to
show that he has a disposition or tendency
to do wrong[,] and[] therefore, must be
guilty of the charged offenses that are
before you.
Before you can give any weight to this
evidence, you must be satisfied that the
defendant committed those other acts. If
you are not so satisfied, you may not
consider that evidence for any purpose.
However, our rules do permit evidence of
other crimes, wrongs, or acts when the
evidence is used for certain specific narrow
purposes.
20 A-2728-14T1
In this case[,] the State is offering this
evidence for the limited purpose of showing
the defendant's knowledge that at the time
of the writing of the prior check or checks
against that account back [on] September 30,
2009, . . . the defendant knew that [the]
checking account at Banco Popular[] . . .
was closed, and that those checks written
against that account at that time would not
be honored by the bank.
The bad check statute, under which the
defendant is charged, requires the State to
show that the defendant not only submitted a
bad check, but also that he did so, quote,
knowing that it would not be honored by the
drawee, closed quote.
This evidence is being presented to you for
the limited purpose of assisting you in your
determination as to whether the defendant
knew at the time he allegedly wrote and
presented the checks against this account on
November 11 and 12, 2012 at Sears that these
checks would not be honored by the bank they
were drawn upon.
Sergeant Ponzetti read to the jury a section of a
transcript of a plea hearing conducted on May 10, 2010, at which
defendant admitted that on September 30, 2009, he passed "a
check . . . made payable to Frank Vanness issued by John Vanness
in the amount of $8,000[,] knowing that the TD Bank wouldn't
honor that check." Defendant did not object.
Defendant called Shequelle Harris as a witness. Harris
testified that when defendant paid for his Sears merchandise on
November 11, 2012, he showed her his driver's license and asked
her "four or five times" to hold the check and not deposit it.
21 A-2728-14T1
Harris stated the check looked valid because the address listed
on the check matched the address on defendant's driver's
license. When defendant asked her when she would be working
again, she told him she would be working the same cash register
the next day.
Harris testified that defendant returned to Sears on
November 12, 2012, and again purchased items at her cash
register. Defendant gave her a business check to pay for his
merchandise. Harris testified defendant again told her to
refrain from depositing the check. According to Harris,
defendant was "very persistent" about this request. She also
stated that defendant did not ask for any type of receipt to
document his purchases.
On cross-examination, Harris conceded she would not have
accepted defendant's checks if she knew they were invalid. She
admitted she did not follow Sears's procedures when she failed
to process the checks electronically or call Banco Popular to
verify their validity. Harris also admitted she was not
authorized to accept and hold checks based on a customer's
promise of future payment. On redirect, Harris claimed Sarno
told her not to mention in her Sears incident report that
defendant provided his driver's license or that he asked her to
hold on to the checks. Harris alleged Sarno threatened that
22 A-2728-14T1
she would be charged as defendant's accomplice and serve time in
jail if she stated otherwise.
Defendant testified in his own defense. As soon as
defendant took the witness stand, the trial judge addressed him,
in the jury's presence, as follows:
THE COURT: Mr. Vanness, have a seat. I am
not going to act as your attorney and ask
you questions. We know what the focus of
this case is[;] . . . it's on the events of
November 11 and November 12, 2012. I will
permit you to give a narrative of your
version of what occurred, and then the
prosecutor will be allowed to cross-examine
you. So you can proceed.
DEFENDANT: How we doing --
THE COURT: Don't talk to them[;] just give
your version of what happened. You'll be
able to talk to them in your summation.
DEFENDANT: I guess I should start off by
saying about probably 12 days I think after
Sandy and it was my mom -- just one second.
THE COURT: Why don't you just tell me what
happened on November --
DEFENDANT: I'm trying to --
THE COURT: I don't need the backdrop of why
--
DEFENDANT: I want to explain the reason why
I went to Sears.
THE COURT: You went to Sears to purchase
merchandise; is that correct?
DEFENDANT: That's correct.
23 A-2728-14T1
[(Emphasis added).]
This brief excerpt illustrates the approach the trial judge
adopted during defendant's direct testimony. Despite the
judge's initial promise that he would permit defendant to
testify in "a narrative" format, the judge repeatedly
interrupted and admonished defendant that he was not focusing on
what happened on the day he went to Sears. The record shows the
judge quickly abandoned his plan to allow defendant to tell the
jury his "version" of events in a narrative fashion. Unable to
keep defendant's "focus" on the material facts in the case, the
judge assumed the role of de facto examiner. The following
exchange illustrates this point:
DEFENDANT: I decided at that time, I went in
to Sears, I saw the generators, a small
generator, picked that up and -- not so
small, I think like 1500 watts it was or 25
-- I don't remember. And then there was a
big air filter, and I said that would be
good to use. And I went to check out, and
that's when I -- Mrs. Harris was at the
register.
And knowing that I knew my checks were bad,
I knew that I didn't want them deposited at
all, and I didn't want them -- because I
knew they would bounce[;] that's the reason
why I asked her, please, hold on to the
checks[;] do not deposit them.
Being that I have a check charge in my life,
I started to read up on it, and I knew
exactly, thinking to myself, okay, I can't
allow her to deposit these checks at all,
and I have to make sure that she . . .
24 A-2728-14T1
hold[s] them. I have to ask her to hold
them. I knew that already.
So [I] rang up the items, and I was talking
to her about Sandy and, you know, the things
that happened to us, and, you know, my house
was all messed up and my whole basement
[was] flooded. I mean, everybody was a
mess. I live in Shark River Hills right --
THE COURT: Again, you're not focusing on
what happened that day.
DEFENDANT: Okay. Sorry.
At that point there when I talked to Miss
Harris, I explained several times to her,
please do not, do not, do not deposit my
checks[;] please hold them. I will be back.
That's basically -- besides all the in
between talking of what was going on in the
world, that's basically the transaction.
She promised me that she wouldn't. She said
that she would hold the checks. She would
not deposit the checks.
THE COURT: Did you tell her that the checks
were -- that there was no money in the
account?
DEFENDANT: I did not tell her that. I did
tell her that I would be back to pay for
everything. That I did tell her.
I don't know if she -- I really don't know
if she understood me or not but I did say
four or five times, if not more, [p]lease do
not deposit the checks[;] please hold them.
And that was the truth.
THE COURT: So you left Sears with the items
you purchased that day?
DEFENDANT: Correct. I did[.] . . . I did
ask her when she was working again. I
didn't know if my mother was going to be
25 A-2728-14T1
able to get out and get the money so I
decided, okay, go home, you know, hook up
the generator, everything like that. We got
an electric heater going, air filters, and
we're good.
THE COURT: Did you go directly home?
DEFENDANT: Yes.
THE COURT: Then you hooked up the items?
DEFENDANT: Yes. Yes.
THE COURT: When is the next time you entered
a Sears?
The judge continued to question defendant in this fashion
until the end of his direct testimony. The jury found defendant
guilty on all three counts of third degree theft by deception,
N.J.S.A. 2C:20-4, and all three counts of fourth degree bad
checks, N.J.S.A. 2C:21-5.
III
MOTION FOR A NEW TRIAL
On June 30, 2014, defendant appeared before the trial judge
for arraignment in connection with unrelated charges under
Monmouth County Indictment No. 13-01-50. At this time, the
court had not yet sentenced defendant with regard to Indictment
13-01-208. Defendant again requested to be represented by the
Office of the Public Defender. This time, Assistant Criminal
Division Manager Kristi Smith reviewed and approved defendant's
5A application.
26 A-2728-14T1
Defendant filed a motion for a new trial and requested to
stay the imposition of sentence pending appeal. In a
certification dated July 7, 2014, defendant averred the trial
judge and Criminal Division Manager twice failed to appreciate
his impecunious state and wrongly denied him his right to be
represented by the Office of the Public Defender. Defendant
also averred that the private law firm his mother hired to
represent him on his motion for a new trial had agreed to accept
"a substantially-reduced fee that my mother has promised to pay
(I remain unable to pay any legal fees myself)."
Although not clearly stated, we presume the trial judge
expected to hear argument on this motion at the day of
sentencing. However, defendant failed to appear at the
sentencing hearing. The judge stayed the hearing and issued a
bench warrant for defendant's arrest. The case returned to the
trial court on November 13, 2014, after defendant was
apprehended on the bench warrant. By that time, defendant was
represented by a "pool attorney"9 assigned by the Monmouth County
Public Defender's Office.
9
The Office of the Public Defender is authorized to maintain and
compensate "trial pools of lawyers" on a case-by-case basis.
N.J.S.A. 2A:158A-7(c)–(d). Pool attorneys may be engaged
"whenever needed to meet case load demands, or to provide
independent counsel to multiple defendants whose interests may
be in conflict." N.J.S.A. 2A:158A-9; see also N.J. Div. of Child
(continued)
27 A-2728-14T1
Defense counsel argued defendant was entitled to a new
trial under Rule 3:20-1 because the court had violated his Sixth
Amendment right to counsel. In support of his argument, defense
counsel described defendant's two unsuccessful attempts to
qualify for representation by the Public Defender's Office.
Counsel emphasized that defendant succeeded on his third
attempt, despite the absence of any new information in his third
5A application. Counsel argued the Criminal Division Manager
erred the first two times by misunderstanding that defendant
owned his real property as a joint tenant with the right of
survivorship.
Counsel noted that defendant's property was heavily
leveraged and did not have any equity left to extract. Counsel
also indicated that defendant produced proofs of personal debts
and financial obligations to his minor children. Counsel argued
this oversight was the product of an improper investigation by
the staff responsible for determining when a person is indigent
under N.J.S.A. 2A:158A-2. Counsel also argued the trial judge
did not ensure that the vicinage's Assignment Judge, "or his [or
her] designated judge," reviewed defendant's rejected 5A
application, as provided in N.J.S.A. 2A:158A-15.1. Counsel
(continued)
Prot. & Permanency v. G.S., 447 N.J. Super. 539, 558 (App. Div.
2016).
28 A-2728-14T1
stated the record shows that defendant did not knowingly waive
his right to counsel. In fact, defendant doggedly sought an
attorney to represent him from the date of arraignment through
the start of trial. Defendant only represented himself when the
judicial system, as represented by the trial judge and the
Criminal Division Manager, left him with no other alternatives.
Independent of this error, defense counsel argued the trial
judge failed to follow the standards that the Supreme Court
established in King, supra, 210 N.J. 2, and improperly concluded
defendant was capable of representing himself in this criminal
jury trial. Although the judge acknowledged this court's
decision in State v. Slattery, 239 N.J. Super. 534 (App. Div.
1990), he failed to follow the three "guidelines" a trial judge
should consider when confronted with a defendant who does not
qualify for the Public Defender, but has not retained private
counsel. As part of these guidelines, we suggested: "If [the
defendant] has not retained an attorney, stand-by counsel may be
appointed with adequate provision for compensation." Id. at
550. The trial judge noted that he considered appointing stand-
by counsel, but ultimately decided against it because defendant
"was telling me he couldn't compensate anybody anything."
Defense counsel also argued the trial judge failed to
timely and comprehensively examine defendant's background and
29 A-2728-14T1
circumstances to ensure defendant both understood the perils of
self-representation and knowingly and voluntarily waived his
right to counsel. Defense counsel noted that in Slattery, we
cautioned trial judges to conduct a "'searching and painstaking'
inquiry . . . sufficiently in advance of the peremptory date set
for the trial so as to enable the defendant to secure an
attorney or decide to represent himself." Slattery, supra, 239
N.J. Super. at 550.
At the conclusion of oral argument, the trial judge denied
defendant's motion for a new trial and sentenced defendant to
serve a term of five years and pay the mandatory fines and
penalties.
IV
Against this record, defendant raises the following
arguments on appeal:
POINT I: THE DEFENDANT'S MOTION FOR NEW
TRIAL SHOULD HAVE BEEN GRANTED: THE
DEFENDANT SHOULD HAVE BEEN GRANTED THE
SERVICES OF THE PUBLIC DEFENDER.
POINT II: DEFENDANT'S MOTION FOR NEW TRIAL
SHOULD HAVE BEEN GRANTED: DEFENDANT DID NOT
MAKE A KNOWING AND INTELLIGENT DECISION TO
SELF-REPRESENT.
POINT III: DEFENDANT'S MOTION FOR NEW TRIAL
SHOULD HAVE BEEN GRANTED: THE COURT SHOULD
HAVE GRANTED DEFENDANT'S REQUEST FOR THE
ASSISTANCE OF STANDBY COUNSEL.
30 A-2728-14T1
We are satisfied defendant was denied his right to counsel
under the Sixth Amendment to the United States Constitution and
Article I, paragraph 10 of the New Jersey Constitution. Under
these circumstances, our only recourse is to reverse defendant's
conviction and remand for a new trial. Although there are a
number of factors that contributed to this outcome, the
constitutional violation begins with the Criminal Division
Manager's denial of defendant's application seeking
representation by the Public Defender's Office. We will thus
briefly summarize how this process should function.
The Legislature enacted the Public Defender Act (PDA),
N.J.S.A. 2A:158A-1 to -25, "to provide for the realization of
the constitutional guarantees of counsel in criminal cases for
indigent defendants[.]" N.J.S.A. 2A:158A-1. As a matter of
public policy, the Legislature declared that the "system and
program established and authorized by this act [are dedicated]
to the end that no innocent person shall be convicted, and that
the guilty, when convicted, shall be convicted only after a fair
trial according to the due process of the law." Ibid.
Although the Public Defender's Office is funded by the
legislative branch and staffed by the executive branch, the
judiciary is entrusted to "determine whether a defendant
qualifies for a public defender[.]" In re Custodian of Records,
31 A-2728-14T1
Criminal Div. Manager, 214 N.J. 147, 151 (2013). The then-
existing Rule 3:4-2(b)(3) and the current Rule 3:4-2(c)(3)
require the trial judge to inform a criminal defendant of his or
her right to request a public defender at the first hearing
before the court. In re Criminal Div. Manager, supra, 214 N.J.
at 159; see also State v. A.L., 440 N.J. Super. 400, 404 (App.
Div. 2015). If the defendant asserts indigence, the trial judge
must instruct the defendant to complete a 5A application for a
public defender. In re Criminal Div. Manager, supra, 214 N.J.
at 159 (citing R. 3:4-2(b)(5)). As part of the application, the
defendant provides employment and financial information on page
three of the 5A form. Id. at 160. The defendant must certify
the accuracy of the financial data he provides, and he must
affirm his awareness that "willfully false" statements will
subject him to punishment. Id. at 151, 160.10
Rule 3:8-3 charges each vicinage's Criminal Division
Manager's Office with assessing public defender applications for
indigency. If a defendant is found indigent, the Criminal
Division Manager refers the defendant to the Office of the
Public Defender no later than the date of his pre-arraignment
10
Pursuant to Rule 1:4-4(b), a certification of this kind
substitutes for an oath, and a person who submits a willfully
false statement under a signed certification is subject to
prosecution for false swearing. See State v. Feaster, 184 N.J.
235, 258 n.9 (2005) (citations omitted).
32 A-2728-14T1
conference. In re Criminal Div. Manager, supra, 214 N.J. at 160
n.2 (citing R. 3:8-3; R. 3:9-1(a)).
The PDA defines an "indigent defendant" as "a person who is
formally charged with the commission of an indictable offense,
and who does not have the present financial ability to secure
competent legal representation . . . and to provide all other
necessary expenses of representation." N.J.S.A. 2A:158A-2. In
determining whether a defendant qualifies as "indigent," the 5A
Office considers the factors set forth in N.J.S.A. 2A:158A-14:
a. The financial ability of the defendant to
engage and compensate competent private
counsel;
b. The current employment, salary and income
of the defendant[,] including prospects for
continued employment if admitted to bail;
c. The liquid assets of the defendant,
including all real and personal property and
bank accounts;
d. The ability of the defendant to make bail
and the source of bail posted;
e. Where appropriate[,] the willingness and
ability of the defendant's immediate family,
friends or employer to assist the defendant
in meeting defense costs;
f. Where appropriate[,] an assessment of the
probable and reasonable costs of providing a
private defense, based upon the status of
the defendant, the nature and extent of the
charges and the likely issues;
g. Where appropriate, the ability of the
defendant to demonstrate convincingly that
33 A-2728-14T1
he has consulted at least three private
attorneys, none of whom would accept the
case for a fee within his ability to pay;
and
h. The ability of the defendant to provide
all other necessary expenses of
representation.
[N.J.S.A. 2A:158A-14.]
As the branch of government entrusted to determine who is
eligible to be represented by the Office of the Public Defender:
The judiciary has an independent
responsibility to [e]nsure that funds set
aside for qualifying criminal defendants are
not misappropriated by those who do not
qualify but provide false information to
obtain a public defender. See N.J.S.A.
2A:158A-15.1. For that reason, we refer the
question of defendant's qualification for
indigency status to the Assignment Judge for
review. The Assignment Judge can rely on
any relevant, competent evidence provided by
any person or entity to determine whether
defendant qualifies for a public defender.
[In re Criminal Div. Manager, supra, 214
N.J. at 152 (emphasis added).]
The Legislature also provided that if the court cannot
accurately determine a defendant's eligibility for public
defender services, or if an initial determination is found to be
erroneous, the public defender must represent the defendant "on
a provisional basis." A.L., supra, 440 N.J. Super. at 406
(citing N.J.S.A. 2A:158A-14). If the court subsequently
determines the defendant was not eligible, the defendant is
34 A-2728-14T1
required to reimburse the Office of the Public Defender "for the
cost of the services rendered [up] to that time" and retain
private counsel for his or her remaining needs. N.J.S.A.
2A:158A-14.
Here, the record shows defendant appeared at his
arraignment without counsel. When defendant informed the judge
that the Criminal Division Manager had denied his 5A
application, the judge did not investigate the matter further.11
The record shows the judge believed himself bound by the
Criminal Division Manager's decision. This threshold error set
the stage for how the judge proceeded from this point forward.
Although Rule 3:8-3 requires the Criminal Division Manager
to review a defendant's 5A form to determine indigency under
N.J.S.A. 2A:158A-14, the vicinage's Assignment Judge makes the
ultimate determination of a defendant's indigent status.
N.J.S.A. 2A:158A-15.1; In re Criminal Div. Manager, supra, 214
N.J. at 152. Here, the trial judge acknowledged he neither
reviewed defendant's 5A form at any time, nor suggested that the
vicinage's Assignment Judge evaluate defendant's indigency
status.
11
Rule 3:4-2(b) now authorizes the trial judge "to assign the
Office of the Public Defender to represent the defendant for
purposes of the first appearance."
35 A-2728-14T1
The record strongly suggests defendant's financial status
was not properly documented in the first 5A. This error could
have been discovered, either at the arraignment or shortly
thereafter, had the judge assigned counsel to represent
defendant as Rule 3:4-2(b) now provides. Defendant's second 5A
was supported by substantial documentary evidence. However,
this application was also rejected without explanation. The
Criminal Division Manager inexplicably approved defendant's
third attempt to be represented by the Public Defender's Office,
based on the same information he submitted with the second 5A
form. By that time, a jury had convicted defendant on all of
the six remaining charges in the indictment.
Pursuant to Rule 3:20-1, a defendant is entitled to a new
trial when such is "required in the interest of justice." The
decision of whether to grant or deny a motion for a new trial is
left to the trial judge's sound discretion, and this court
should interfere with the exercise of that discretion only when
"a clear abuse has been shown." State v. Brooks, 366 N.J.
Super. 447, 454 (App. Div. 2004) (quoting State v. Russo, 333
N.J. Super. 119, 137 (2000)). Appellate review is limited to a
determination of whether the trial court could reasonably have
reached the findings it made based on "sufficient credible
evidence . . . in the record." Ibid. (quoting Russo, supra, 333
36 A-2728-14T1
N.J. Super. at 137). Moreover, this court owes deference to the
trial judge's "feel for the case" because he or she had the
opportunity to "observe and hear the witnesses as they
testified." Ibid. (quoting Russo, supra, 333 N.J. Super. at
137).
At the hearing on defendant's motion for a new trial,
defense counsel emphasized the incongruity in the Criminal
Division Manager's decision. Although the trial judge believed
the decision to approve the 5A was based on supplemental
information, this proved to be incorrect. Ultimately, the judge
was unable to reconcile the Criminal Division Manager's position
with the uncontested, salient facts. Despite this, the judge
denied defendant's motion for a new trial, finding defendant had
not been prejudiced by the denial of counsel. On this record,
we are satisfied defendant is entitled to a new trial under Rule
3:20-1.
We hold the trial court violated defendant's constitutional
right to counsel at every critical stage of the criminal
process. See State v. Scoles, 214 N.J. 236, 258 (2013)
(citation omitted) (quotation marks omitted). This
constitutional violation tainted the entirety of the
proceedings. On this basis alone, there is more than sufficient
37 A-2728-14T1
grounds to conclude the trial court erred in denying defendant's
motion for a new trial under Rule 3:20-1.
The judiciary's responsibilities to determine a criminal
defendant's eligibility for taxpayer-funded representation are
not merely ministerial. Criminal trial judges are uniquely
positioned to monitor how our commitment to the right to counsel
is honored on a daily basis. No system is perfect. When the
Criminal Division Manager denies a defendant's 5A application
based on an insufficient basis to establish indigency, the trial
judge should assign temporary counsel, as Rule 3:4-2(b) now
provides, and inform the defendant of his or her right to have
the application reviewed by the Assignment Judge or a judge
designated under N.J.S.A. 2A:158A-15.1. No denial of a 5A
application is final until the Assignment Judge or "his
designated judge" makes a final decision. Ibid.
Our State's commitment to preventing poverty from
undermining the right to counsel in criminal trials has deep
roots. See State ex rel. P.M.P., 200 N.J. 166, 174 (2009)
(citing State v. Sanchez, 129 N.J. 261, 274–75 (1992)) ("New
Jersey has provided counsel for indigent defendants since
1795."). Indeed, "[h]istorically, the guarantee of the right to
counsel in the New Jersey Constitution antedates the adoption of
the Sixth Amendment." Sanchez, supra, 129 N.J. at 274. This
38 A-2728-14T1
case marks a regrettable deviation from this honorable
tradition. This case illustrates how a series of systemic
failures circumvented the failsafe protocols established by the
Legislature and the Supreme Court to ensure that impecuniosity
will never deprive a person facing criminal prosecution of the
right to be represented by competent counsel at every critical
stage of the proceedings.
V
The record shows the trial judge believed the Supreme
Court's decision in King, supra, 210 N.J. 2, required him to
grant defendant's decision to represent himself. In the judge's
own words: "A new case came down that said I can't stop somebody
from representing themselves even if it's a bad idea for them."
We conclude the judge misunderstood the Court's holding in King.
A brief review of the facts in King is necessary to give this
discussion context. Defendant Marcus King was indicted on three
counts of first degree robbery, N.J.S.A. 2C:15-1. King, supra,
210 N.J. at 8. He was represented by an attorney up to the day
of trial. See id. at 10. On the day of trial, "shortly before
the trial was scheduled to begin[,]" King appeared with his
attorney who informed the trial judge that his client wanted to
represent himself. Ibid.
39 A-2728-14T1
Despite King's clear and lucid acknowledgment of the perils
of self-representation, and his unequivocal desire to proceed
without an attorney, the trial judge refused to honor his waiver
of the right to counsel. Id. at 14. As the Supreme Court
noted:
After listening to [the] defendant's
responses to the various questions posed to
him, the trial court proceeded to rule on
the application. The trial court stated
that it was not "satisfied" that defendant
"fully under[stood] the nature and
consequences of this decision." It pointed
to the fact that defendant was unable to
state what he had written down while doing
research in the law library a few days ago
and could not adequately answer the court's
questions about the court rules or the
evidence rules. The court found that
defendant's "inability to do that" precluded
an intelligent waiver of his right to
counsel.
[Ibid.]
Relying on long-established precedent from the United
States Supreme Court, our Supreme Court reaffirmed that "[t]he
right to defend is personal. The defendant, and not his lawyer
or the State, will bear the personal consequences of a
conviction. It is the defendant, therefore, who must be free
personally to decide whether in his particular case counsel is
to his advantage." Id. at 17 (quoting Faretta v. Cal., 422 U.S.
806, 834, 95 S. Ct. 2525, 2540–41, 45 L. Ed. 2d 562, 581
(1975)). It is clear to us that the key underlying principle at
40 A-2728-14T1
stake in King was the right of self-determination. In our view,
the Court in King admonished judges to guard against
paternalistic tendencies that usurp an adult defendant’s right
to choose his or her own path, and to honor a defendant's right
to make an informed and intelligent decision to waive a
constitutional right, even if that decision may be fraught with
latent perils and ultimately proven to be unwise. King, supra,
210 N.J. at 21.
Here, the record does not indicate defendant ever sought to
waive his constitutional right to counsel. Defendant's repeated
attempts to qualify for representation by the Public Defender's
Office were indisputable proof that he wanted legal
representation. This case represents the polar opposite of
King. Here, the judge was not overly protective. Here, the
judge failed to take the measures required under both the PDA
and the United States and New Jersey Constitutions to ensure
defendant's right to counsel was not denied by administrative
oversight.
Reversed and remanded for a new trial. We do not retain
jurisdiction.
41 A-2728-14T1