RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4429-13T2 STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, v. May 18, 2015
APPELLATE DIVISION A.L.1,
Defendant. ________________________________
Argued: April 28, 2015 – Decided: May 18, 2015
Before Judges Reisner, Haas and Currier.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-12-0770.
Remi L. Spencer argued the cause for appellant M.B. (Spencer & Associates, LLC, attorneys; Ms. Spencer, on the briefs).
Matthew Murphy, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Murphy, of counsel and on the briefs).
Jenny M. Hsu, Deputy Attorney General, argued the cause for amicus curiae Attorney General (John J. Hoffman, Acting Attorney
1 We use initials for the relevant parties, A.L. and M.B., and have impounded the record to protect their privacy and safeguard confidential information, pending further proceedings in this matter. As indicated in this opinion, any hearing in this case should have been conducted in camera, and the prosecutor's office should not have publicly disseminated the parties' financial information during the court's investigation. General, attorney; Ms. Hsu, of counsel and on the brief).
Matthew Astore, Deputy Public Defender, argued the cause for amicus curiae Public Defender (Joseph E. Krakora, Public Defender, attorney; Mr. Astore, of counsel and on the brief).
The opinion of the court was delivered by
HAAS, J.A.D.
In this case of first impression, we determine the
procedures that should be used to review the indigency status of
a defendant who has been convicted of a crime and who requests
the services of the Office of the Public Defender (OPD) to file
an appeal on her behalf. During the pendency of defendant's
appeal from her conviction, the State filed a motion with the
trial court, rather than this court, seeking to prohibit the OPD
from continuing to represent defendant in the appeal based upon
its assertion that defendant was not indigent. We conclude
that, pursuant to the clear language of Rule 2:9-1(a), this
motion should have been filed with the Appellate Division in the
first instance.
I.
In order to place the factual issues raised in this matter
in their proper context, we begin with a review of the law in
this area.
2 A-4429-13T2 The Sixth Amendment to the United States Constitution
provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right to . . . have the Assistance of Counsel for his
[or her] defen[s]e." "The Amendment guarantees the right of a
criminal defendant to retain counsel of his [or her] choice, to
the effective assistance of counsel, and if indigent and facing
the potential loss of 'life or liberty,' to have counsel
appointed at the government's expense." State v. Western World,
Inc., ___ N.J. Super. ___ (App. Div. 2015) (slip op. at 11)
(citations omitted).
As our Supreme Court recently explained in In re Custodian
of Records, Criminal Division Manager, 214 N.J. 147, 158 (2013),
New Jersey "has a long history of publicly funded representation
of indigent defendants." (citations omitted). In 1967, the
Legislature enacted the Public Defender Act, which created the
OPD. N.J.S.A. 2A:158A-1 to -25. "The [OPD] represents all
indigent defendants charged with an indictable offense.
N.J.S.A. 2A:158A-5. The statute defines an indigent defendant
as one 'who does not have the present financial ability to
secure competent legal representation.' N.J.S.A. 2A:158A-2."
In re Custodian of Records, supra, 214 N.J. at 159.
The OPD provides legal services to indigent defendants both
at trial and on appeal. Western World, supra, (slip op. at 11).
3 A-4429-13T2 At the trial level, judges are required to advise a defendant of
his or her right to representation by the OPD at the time of the
defendant's first appearance before the court. R. 3:4-2(b)(3).
"[I]f the defendant asserts indigence," the judge must "assure
that the defendant completes the appropriate application form
for [OPD] services and files it with the [C]riminal [D]ivision
[M]anager's office[.]" R. 3:4-2(b)(5).
"To determine whether a defendant qualifies for a public
defender, a court staff member collects information about a
defendant's financial status. That information is then
collected on the third page of an intake form, known as the
Uniform Defendant Intake Report (UDIR)." In re Custodian of
Records, supra, 214 N.J. at 151. The third page of the UDIR is
known as "the 5A Form." Id. at 160. On this form, "the
defendant provides employment and financial information and
indicates whether he or she requests representation by" the OPD.
Ibid. The 5A Form does not require a defendant to provide any
financial information concerning his or her spouse or any other
immediate family members.
"The defendant must certify the accuracy of the financial
data set forth on the form." Id. at 151. Prior to the Court's
May 14, 2013 decision in In re Custodian of Records, supra, the
information the defendant provided in a 5A Form was "prohibited
4 A-4429-13T2 from use in grand jury proceedings and at trial, even for the
purposes of cross-examination[,]" but could "be used at
sentencing unless the defendant object[ed]." Id. at 161.
The Criminal Division Manager's office is charged with the
responsibility of reviewing a defendant's 5A Form and assessing
the defendant's claim of indigency. R. 3:8-3. In making the
indigency determination, the Manager considers the factors set
forth in N.J.S.A. 2A:158A-14. In pertinent part, this statute
states:
Eligibility for the services of the Office of the Public Defender shall be determined on the basis of the need of the defendant. Need shall be measured according to:
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
5 A-4429-13T2 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 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.]
If the Manager "determines that a defendant seeking the services
of [the OPD] is indigent, he or she is referred to the [OPD] no
later than the pre-arraignment conference. R. 3:8-3, 3:9-1(a)."
In re Custodian of Records, supra, 214 N.J. at 160 n.2.
If the criminal proceeding results in a conviction, either
following a trial or a plea, the defendant completes a new 5A
Form that becomes part of the presentence report that is relied
upon by the judge, the prosecutor, and the public defender at
the sentencing hearing. Id. at 157. At sentencing, the judge
must "advise the defendant of the right to appeal and, if the
defendant is indigent, of the right to appeal as an indigent."
R. 3:21-4(h). The 5A Form provided with the presentence report
then becomes the defendant's application for OPD services on
appeal. The Criminal Division Manager reviews the 5A Form and
advises the OPD whether the defendant is indigent. If so, the
6 A-4429-13T2 OPD undertakes the defendant's representation and files a notice
of appeal to the Appellate Division, or provides representation
in the event of an appeal filed by the State.
"A determination to grant or deny the services of the [OPD]
shall be subject to final review by the Assignment Judge or his
[or her] designated judge." N.J.S.A. 2A:158A-15.1. In cases
where the Criminal Division Manager determines that the
defendant is not indigent, review by the Assignment Judge will
usually occur before the OPD becomes involved in the case.
However, if "a determination of eligibility cannot be made
before the time when the first services are to be rendered, or
if an initial determination is found to be erroneous," the OPD
shall represent the defendant on a provisional basis. N.J.S.A.
2A:158A-14. If the defendant is subsequently determined to be
ineligible, "the defendant shall . . . be obliged to engage his
[or her] own counsel and to reimburse the [OPD] for the cost of
the services rendered to that time." Ibid.
In addition, "[t]he reasonable value of the services
rendered to a defendant" by the OPD "may in all cases be a lien
on any and all property to which the defendant shall have or
acquire an interest." N.J.S.A. 2A:158A-17a. The OPD must
"effectuate such lien whenever the reasonable value of the
services rendered to a defendant appears to exceed $150 . . . ."
7 A-4429-13T2 Ibid. In its amicus brief, the OPD represented that liens are
filed in every case where it provides legal services to an
indigent client.
In In re Custodian of Records, the Court dealt with the
situation where the State believed a defendant who had been
found eligible for OPD services prior to his arraignment was not
truly indigent. Supra, 214 N.J. at 153-54. The defendant had
been indicted on a number of offenses, including first-degree
money laundering, N.J.S.A. 2C:21-25; first-degree racketeering,
N.J.S.A. 2C:41-2; and third-degree promoting gambling, N.J.S.A.
2C:37-2. Id. at 153. During its investigation of these
offenses, the State "had obtained documents . . . that suggested
[the] defendant owned substantial assets." Id. at 154.
The State issued a trial subpoena seeking to obtain a copy
of the 5A Form used to determine defendant's indigency for the
trial proceedings. Ibid. "[T]he State proffered that it sought
the documents to investigate whether [the] defendant
fraudulently represented his assets to obtain public defender
representation" and, if so, "to prosecute him for fraud[.]" Id.
at 155, 157. The State represented that it would not use the
information in defendant's 5A Form "as evidence in his current
criminal matter[.]" Id. at 157. In addition, the State
asserted that it needed the form in order "to apply to the court
8 A-4429-13T2 for termination of [the] defendant's court-appointed counsel[.]"
Id. at 163.
In In re Custodian of Records, the Court held that the
"discovery sought by the State [was] not essential to the
court's review of the State's challenge to defendant's indigency
status." Ibid. Nor was a formal motion necessary to initiate a
review. Instead, the Court observed that the State "or any
other person or entity" could simply present "any evidence that
bears on [the] defendant's qualification for public defender
representation" to the Assignment Judge. Id. at 164 n.4. The
Assignment Judge would then conduct an investigation by
reviewing the defendant's 5A Form, and "'obtain[ing] information
from any public record office of the State or of any subdivision
thereof on request and without payment of the fees ordinarily
required by law.'" Id. at 164 (quoting N.J.S.A. 2A:158A-15.1).
Once this information was assembled, the Court noted that
the Assignment Judge would "compare [the] defendant's disclosure
on the form with other financial data made available to the
court in connection with the application, and determine whether
[the] defendant is legitimately entitled to publicly financed
legal assistance." Ibid. The Court stated that, where the
documents are "uncomplicated, the Assignment Judge may analyze
them in camera without the assistance of counsel or experts."
9 A-4429-13T2 Ibid. Following this review, "[i]f the Assignment Judge finds
that [the] defendant did not qualify for appointed counsel, he
[or she] may terminate the appointment." Id. at 166 (citations
omitted).
The Court stated that challenges to an indigency
determination should be made "at an early court appearance[.]"
Id. at 171. The reason for requiring a prompt resolution of any
issue regarding a defendant's indigency is clear. OPD
representation is critical to the fair and efficient functioning
of the criminal court system and, therefore, objections to OPD
representation must be raised at the earliest possible time to
avoid disruption of criminal trials and appeals.
With regard to the State's claim that it needed the 5A Form
to determine whether to prosecute the defendant "for a
fraudulent financial disclosure[,]" the Court ruled that the
State could not obtain the form through a trial subpoena. Id.
at 165. Because the defendant was advised at the time he
completed the form that it "would not be used in a grand jury
proceeding or at trial[,]" the Court held that the form could
not be used by the State "to prosecute him for false swearing or
fraud[.]" Id. at 165-66.
Thus, the Court directed that the 5A Form be modified to
advise future defendants that: "'At the direction of the
10 A-4429-13T2 Assignment Judge acting on his or her own initiative, or in
response to a valid grand jury subpoena with the approval of the
Assignment Judge, [the 5A Form] may be produced to a grand jury
and a prosecutor.'" Id. at 167-8. The Court also ruled that
"if prosecutors seek to preserve the option to subpoena the
financial and employment information that defendants supply on
the" 5A Form, they must first ask the trial court "at an early
court appearance attended by court-appointed counsel" to require
the defendant to "affirm" that: the information on the form is
true; he or she "understands that willfully false statements on
the form . . . may subject him or her to punishment"; and "the
defendant understands that information about finances and
employment may be disclosed to a grand jury and the
prosecution." Id. at 168. The court must also give the
defendant the opportunity to revise his or her 5A form after
this inquiry is made.2 Ibid.
The Court also confirmed that the information disclosed by
a defendant on the 5A Form "should not be used by the
prosecution to prove the pending case, even if the defendant's
finances are relevant to the pending charges." Ibid.
Significantly, the Court cautioned that, in order
2 On May 29, 2013, the Administrative Office of the Courts promulgated Administrative Directive 03-13 setting forth these new requirements.
11 A-4429-13T2 [t]o protect against the use of information provided by defendants in the pending trial, and to guard against improper accusations of abuse, a separate team of prosecutors and investigators -- who are not involved with the pending case -- should be assigned to any new investigation relative to the contents of the [5A] [F]orm."
[Id. at 168-69.]
Finally, the Court directed prosecutors seeking disclosure
of the "financial data in" 5A Forms to "proceed by way of a
grand jury subpoena, not a trial subpoena . . . ." Id. at 169.
These "grand jury subpoenas should be presented to the Criminal
Division Manager and the Assignment Judge along with an
accompanying affidavit from the prosecutor that details the
basis for the subpoena -- a showing that the intake form
contains false information." Id. at 170. The Assignment Judge
would then "determine, within his or her discretion, whether the
State's proofs justify disclosure of the" 5A Form. Ibid. The
Court stated that it "expect[ed] that it will be the rare case
in which the State presents sufficient proof of fraud to warrant
disclosure." Ibid.
While the Court's decision applied only to criminal matters
pending at the trial level, we believe that most, but not all,
of the principles established also apply when a judgment of
conviction has been appealed to this court. As noted above, the
defendant's 5A Form is included as part of the presentence
12 A-4429-13T2 report and is used to determine the defendant's eligibility for
OPD representation on appeal. Thus, the Criminal Division
Manager's review of the application, and any analysis required
by the Assignment Judge, will ordinarily occur before the appeal
is filed and, therefore, before we acquire jurisdiction of the
matter.
However, once a notice of appeal has been filed, "the
supervision and control of the proceedings on appeal . . . shall
be in the [A]ppellate [Division] from the time the appeal is
taken . . . ." R. 2:9-1(a). Thus, requests to disqualify the
OPD, filed after an appeal has been docketed, must be presented
to us in the first instance. Ibid.
In cases where the State makes an early request for an
indigency review as required by In re Custodian of Records,
supra, we anticipate that we would usually order a limited
remand to the Assignment Judge to consider the factual issue of
the defendant's indigency, while retaining jurisdiction to make
the decision as to whether the OPD should be disqualified from
representing the defendant on appeal. See State v. Hogue, 175
N.J. 578, 583 (2003) (granting a limited remand pending appeal
"when consideration of a particular issue by the trial court
will enable full resolution of the controversy by the appellate
court or is necessary to deal with an essential matter
13 A-4429-13T2 implicating the issues on appeal arising after the notice of
appeal is filed") (citation and internal quotation marks
However, where the matter has proceeded sufficiently far in
the appellate process that an indigency review and the potential
disqualification of a defendant's public defender would
seriously disrupt the appeal and impermissibly infringe upon the
defendant's right to counsel, a different approach is required.
As we will now discuss, that is the situation presented in the
case at hand.
II.
On November 27, 2012, a jury convicted defendant A.L. of
second-degree vehicular homicide, N.J.S.A. 2C:11-5a; and third-
degree assault by auto, N.J.S.A. 2C:12-1c(2). During the
lengthy trial, defendant had been represented by private
counsel. Sentencing was scheduled for February 14, 2013.
On January 29, 2013, the OPD advised the Criminal Division
Manager that defendant had requested that a public defender
represent her on appeal. The OPD asked the Manager to determine
whether defendant was indigent.
In preparation for the sentencing, Criminal Division staff
prepared a presentence report, which included a copy of
defendant's 5A Form. This form was not signed or dated by
14 A-4429-13T2 defendant. A notation at the bottom of the form indicates that
it was printed on January 30, 2013, together with the rest of
the presentence report. According to the brief it filed with
the Assignment Judge in support of its motion to disqualify
defendant's appellate counsel, the prosecutor's office received
the presentence report and defendant's 5A Form on that same
date. A copy of this form also appears in the appendix to the
State's motion brief.
On February 5, 2013, the Criminal Division Manager advised
the OPD that "Defendant is Public Def. accepted" and enclosed a
copy of defendant's 5A Form. This form, which was signed and
dated by defendant on February 5, 2013, had some additional
information handwritten on it, such as defendant's middle name,
and a minor addition to her "financial status" information.
Otherwise, it was identical to the January 30, 2013 form. The
February 5, 2013 5A Form was appended to the presentence report
filed in the appeal concerning defendant's conviction and
sentence. Therefore, we assume it was also available to the
judge, the prosecutor, and defendant's trial attorney at
sentencing.
Because defendant completed her January 30, and February 5,
2013 5A Forms prior to the Supreme Court's decision in In re
Custodian of Records, supra, neither form warned her that the
15 A-4429-13T2 forms could be turned over to a grand jury or the prosecutor
during an investigation of her eligibility for OPD services.
On February 14, 2013, the trial judge sentenced defendant
to three years in prison on count one, subject to an eighty-five
percent period of parole ineligibility pursuant to the No Early
Release Act, N.J.S.A. 2C:43-7.2, and three years of parole
supervision upon her release. The judge imposed a concurrent
three-year term on count two.
On February 20, 2013, the State filed a notice of appeal
challenging the sentence imposed by the trial judge. On
February 28, 2013, the OPD filed an appeal on defendant's
behalf, challenging her conviction and sentence. On March 6,
2013, our clerk's office designated defendant as the appellant
and the State as the cross-appellant for purposes of the
briefing schedule.
The assistant prosecutor, who represented the State during
defendant's trial and at sentencing, learned that the OPD was
representing defendant on appeal on March 6, 2013. According to
the prosecutor's brief, "[t]he State had always known the
defendant was not indigent[.]" Nevertheless, the prosecutor did
not immediately take any action to contest the determination
that defendant was indigent and, therefore, eligible for OPD
representation.
16 A-4429-13T2 On May 14, 2013, the Supreme Court issued its decision in
In re Custodian of Records, supra. The prosecutor advises that
he became aware of this decision shortly after it was rendered,
but he still did not take any action to contest defendant's
indigency.
Sometime "[d]uring the underlying litigation," and the
State has not specified when this occurred, the prosecutor
obtained a court order requiring a newspaper internet website to
disclose the identity of an individual who had posted comments
"boast[ing] that the defendant's appeal would be handled by the
Public Defender." The State asserts that M.B. posted these
comments.
Over the course of the year following the filing of the
parties' appeals, the OPD worked on defendant's case. It filed
forty-seven transcripts, totaling more than 6200 pages.
Pursuant to the last of a series of scheduling orders, the OPD's
brief was due to be filed on January 24, 2014. On January 10,
2014, defendant's public defender asked for a short extension of
time to file the brief. The OPD submitted defendant's appellate
brief on March 19, 2014, together with a motion seeking
permission to file an overlength brief. We granted that motion
on April 11, 2014.
17 A-4429-13T2 Sometime during the period between the Court's decision in
In re Custodian of Records, supra, and March 4, 2014, the same
prosecutor who had represented the State at trial, issued grand
jury subpoenas seeking defendant and her husband M.B.'s
financial records.3 Through the use of these subpoenas, the
State obtained M.B.'s savings and checking account records and
his vehicle registration records. It also obtained life
insurance information for both defendant and M.B.4
On March 4, 2014, thirteen months after the OPD assumed
defendant's representation for her appeal, the State filed5 a
motion with the Assignment Judge seeking "an Order terminating
the [OPD] from further representation of defendant . . . ." The
motion also asked that defendant be ordered to appear in court
3 The subpoenas are not part of the record on appeal and, therefore, we do not know exactly when the State issued them. 4 In response to our request for supplemental briefs addressing certain issues pertinent to this appeal, the State advised us that it issued the grand jury subpoenas because it was investigating whether defendant could be prosecuted for theft in connection with the legal services she was receiving from the OPD. However, at the trial level, the State told the Assignment Judge that, because defendant had executed her 5A Form prior to the Supreme Court's decision in In re Custodian of Records, supra, defendant "is effectively immune from criminal prosecution even if her [5A Form] contains fraudulent misrepresentations." 5 The assistant prosecutor who represented the State at the trial, and who had obtained the grand jury subpoenas, also filed this motion on the State's behalf.
18 A-4429-13T2 to confirm that the information supplied on her 5A Form was
"true" and to be advised that "wil[l]fully false statements" on
the form could subject her to punishment.
In support of its motion, the State submitted a sealed
appendix containing the financial records it had obtained from
the grand jury. Notably, all of the bank and vehicle
registration records were solely in M.B.'s name. The State
produced no information indicating that defendant had any income
or assets, other than a life insurance policy that appeared to
have no cash value. Perhaps because of this, the State also
sought an order requiring that defendant provide the Assignment
Judge with four years of tax returns, and other financial
records relating to any stocks, bonds, or other assets defendant
might own. The State also asked the Assignment Judge to order
"defendant to produce copies of any legal document(s), executed
between 2010 and 2013, that involved, touched upon or had the
effect of altering family assets and/or property rights of
either [defendant] or [M.B.]"
The State acknowledged that defendant's name did "not
appear on any of the marital assets nor the real and personal
property belonging to the" family. Nevertheless, the State
asserted that defendant was not indigent because M.B. was
employed, had substantial funds in his savings and checking
19 A-4429-13T2 accounts, and owned the parties' house and cars. Thus, the
State argued that M.B. was required to pay for defendant's legal
As noted above, the State filed M.B.'s financial documents
in a sealed appendix. However, it did not seal its notice of
motion or its motion brief. In its motion brief, the State made
numerous references to M.B.'s financial information, including
his savings account balances at various times. The State
identified M.B.'s employer, how often he was paid, and how his
payroll checks were deposited. The State also disclosed dozens
of specific payments M.B. had made for his family's educational,
medical, and personal expenses, including the names of the
medical offices, educational facilities, and vendors receiving
these payments. The death benefit amounts of defendant's and
M.B.'s life insurance policies were also revealed. Thus, the
State made all of this sensitive information, which it had
obtained through a grand jury subpoena, available to the public.
As set forth in Rule 2:9-1(a), the trial court did not have
jurisdiction to entertain any motions in this matter because of
the pending appeal. However, the State did not file a motion
with the Appellate Division seeking a limited remand.
The OPD filed a letter brief under seal on behalf of
defendant opposing the State's request to terminate its
20 A-4429-13T2 representation of defendant on appeal. The prosecutor objected
to the OPD's "appearance . . . in adversarial opposition to the
inquiry," arguing that "the State reasonably expected the Public
Defender to take 'no position' on the merits or otherwise appear
amicus curiae."
Although the State had revealed M.B.'s personal financial
information in its motion brief, and sought his financial
records, the State did not serve M.B. with a copy of its motion
papers, and he was not made a party to the State's motion.
However, the judge asked M.B. to supply an affidavit stating
whether he was willing to contribute to defendant's legal
expenses. In making this request, the judge relied upon
N.J.S.A. 2A:158A-14e, which states that "[w]here appropriate[,]"
a defendant's need for OPD services shall be measured, in part,
on "the willingness and ability of the defendant's immediate
family, friends or employer to assist the defendant in meeting
defense costs[.]" (Emphasis added).
M.B. retained an attorney to represent him in connection
with this request. On March 25, 2014, the attorney provided
M.B.'s affidavit, in which he stated, "I am unwilling to fund
the legal representation of my wife following her conviction at
trial and sentencing by the [c]ourt."
21 A-4429-13T2 On April 8, 2014, the judge conducted oral argument in open
court on the State's motion to prohibit the OPD from
representing defendant in the pending appeal. At the beginning
of the argument, defendant's attorney asked that the proceedings
be conducted in camera. In response, the prosecutor stated, "I
didn't think I was going to say anything that would have raised
any privacy issues[,] but I have no objection." However, the
judge responded, "At this juncture, . . . I am unsure that we
really need to ask the public to leave the courtroom. I'd like
to hear argument. If I feel that we are bordering on something
that is of a confidential nature, I will reconsider [the]
application[.]"
Contrary to his earlier statement, the prosecutor then
proceeded to highlight the specific financial information
obtained from M.B.'s bank, vehicle, and life insurance records.
In response, defendant's attorney pointed out that the State had
not "submitted anything to the court that would suggest that
[defendant] has a single asset other than what she put on her
[5A Form] in 2013 and that is what your Honor is entitled to
compare."
22 A-4429-13T2 On April 10, 2014,6 the judge issued a written decision,
finding that she could consider M.B.'s assets in determining
whether defendant was indigent and, therefore, qualified for OPD
representation. In so ruling, the judge primarily relied upon
DuBois, Sheehan, Hamilton, and DuBois v. DeLarm, 243 N.J. Super.
175 (App. Div. 1990). In that case, we applied the common law
"doctrine of necessities" in finding that one spouse could be
held liable for the legal expenses incurred by the other spouse
in a criminal action in which the spouse was acquitted. Id. at
182. However, we specifically noted "that a distinction might
exist between cases involving convictions and [those involving]
acquittals because convictions reflect intentional wrongdoing or
culpability for which the spouse [from which payment is sought]
should not be financially responsible." Id. at 186 n.6.
Here, defendant was convicted following her trial, and M.B.
had advised the judge that he was not willing to pay her legal
expenses on appeal. Nevertheless, the judge ruled that she
could "consider [M.B.'s] assets and income in reviewing the
6 On this same date, the Office of the Attorney General advised the Clerk of the Appellate Division that it had "superseded the [County] Prosecutor's Office and is now representing the State on both the appeal and defendant's cross-appeal . . . ." Although, at our request, the Attorney General participated in this appeal as an amicus, it did not take part in any of the proceedings before the trial court.
23 A-4429-13T2 [d]efendant's claim for indigency." The judge found it
significant that
[d]efendant retained private counsel for all aspects of the trial at the trial court level, and also that [M.B.] is currently represented by private counsel. It seems to the [c]ourt, subsequent to a review of the briefs and exhibits filed by both parties, as if the [d]efendant filed for public defender representation almost entirely out of spite, having posted on a reputable New Jersey news website on several occasions taunting New Jersey taxpayers.[7] It also appears to the [c]ourt that the [d]efendant and her family live an upper middle to upper class lifestyle. Certainly, this is not the type of "needy" or "indigent" [d]efendant that requires the assistance of the [OPD].
The judge then stated that she would conduct an in camera
plenary hearing8 "to determine the [d]efendant's indigency." The
judge ordered defendant to provide the following financial
information in advance of that hearing:
All Federal and State Tax Records filed by [defendant, M.B.,] or filed jointly by both parties for the years 2010-2014, [and]
7 Contrary to the judge's finding, there is no evidence that defendant ever posted any comments to the website. The State asserts the comments were posted by M.B. 8 The judge stated that "[d]ue to the potentially sensitive and private nature of the evidence that will likely be submitted at the plenary hearing, this hearing will be conducted in camera, away from the eyes and ears of the public." As previously noted, however, M.B.'s financial information had already been disclosed in the State's motion brief and these details were again discussed in open court at oral argument on the State's motion.
24 A-4429-13T2 Financial records relating to stocks, bonds, mutual fund accounts, IRA accounts, trust accounts, and life insurance held by or on behalf of [d]efendant or naming [d]efendant as beneficiary of the same.
The judge concluded her opinion by stating:
After an assessment of the [d]efendant's full financial information, provided the [c]ourt determines that the [d]efendant is not in fact indigent, the [c]ourt will further issue an order 1) terminating the [OPD] from further representation of the [d]efendant, 2) directing the [d]efendant to retain private counsel, and 3) directing the [d]efendant or her husband to reimburse the [OPD] for the costs of litigation to date.
On May 7, 2014, the judge stayed the April 10, 2014 order
at M.B.'s request so he could file a motion for leave to appeal
to this court. The State did not file any opposition to M.B.'s
motion, and we granted leave to appeal on June 2, 2014.
III.
Although the State did not oppose M.B.'s motion for leave
to appeal, it now asserts that leave to appeal was
"improvidently granted." The State argues that M.B. lacks
standing to appeal the judge's order requiring defendant to
produce his financial information. We disagree.
It is well established that "a party aggrieved by a
judgment may appeal therefrom. It is the general rule that to
be aggrieved a party must have a personal or pecuniary interest
25 A-4429-13T2 or property right adversely affected by the judgment in
question." Howard Sav. Inst. v. Peep, 34 N.J. 494, 499 (1961)
(citations omitted); see also Borough of Seaside Park v. Comm'r
of N.J. Dep't of Educ., 432 N.J. Super. 167, 199 (App. Div.
2013).
This definition squarely fits M.B. In this case, the State
divulged his personal financial information in its unsealed
brief and again in an open court proceeding. The judge ordered
defendant to turn over all of M.B.'s tax returns for a four-year
period. The judge also stated that, if she concluded that
defendant was not indigent, she would issue an order "directing
[M.B.] to reimburse the [OPD] for the costs of litigation to
date." Under these circumstances, M.B. was clearly a "party
aggrieved by a judgment" and, therefore, he had standing to file
his motion for leave to appeal.
IV.
On appeal, M.B. argues the judge erred by requiring
defendant to provide his personal financial information. He
asserts the judge's order violates his right to privacy
concerning this information, and also argues that his financial
records are protected from disclosure by his "spousal
testimonial privilege"; "marital communication privilege"; and
Fifth Amendment privilege against self-incrimination.
26 A-4429-13T2 However, we need not address M.B.'s claims on these points
because we are constrained to vacate the judge's order for a
more fundamental reason: the trial court did not have
jurisdiction to consider the State's motion to terminate the
OPD's representation of defendant in her pending appeal.
As previously noted, Rule 2:9-1(a) clearly provides that
"the supervision and control of the proceedings on appeal . . .
shall be in the appellate court from the time the appeal is
taken . . . ." Here, the State and defendant filed their
notices of appeal in February 2013 and, at that time,
"supervision and control of the proceedings" were transferred
from the trial court to the Appellate Division.
Thus, when the State filed its motion to terminate the
OPD's services over a year later, the trial court lacked the
jurisdiction necessary to consider that motion. The facts of
this case highlight the propriety of the result compelled by
Rule 2:9-1(a). At the time the State filed its motion, the OPD
had been representing defendant for thirteen months and was
about to file its lengthy appellate brief on her behalf. Under
these circumstances, the judge's order clearly had the capacity
to interfere with the progress of the pending appeal by
diverting the OPD from the task of completing the brief in order
to address the State's motion, and by possibly requiring
27 A-4429-13T2 defendant to start her appeal all over again with a new
attorney. Simply stated, a proceeding aimed at disqualifying an
attorney from representing a party in an appeal, should be
commenced in this court not in the trial court.
As we have indicated, the State was not without a remedy to
address its claim that defendant had sufficient funds to retain
private counsel. Because "control and supervision" of the
entire matter was before the Appellate Division, the prosecutor
should have filed a motion with this court asking that the
matter be temporarily remanded to the Assignment Judge to make a
determination of defendant's indigency. That is the procedure
clearly required by Rule 2:9-1(a).
We have considered, but rejected, issuing a sua sponte
order remanding the matter to the Assignment Judge to consider
defendant's indigency while defendant's appeal is pending.
While individuals who are not truly indigent should not be
represented by the OPD, challenges to OPD representation must be
presented at the earliest possible time in order to avoid
disrupting the pending proceeding. In re Custodian of Records,
supra, 214 N.J. at 171.
Here, the State simply waited too long to challenge
defendant's indigency and to seek to remove the OPD as
defendant's attorney. The State concedes it has known that the
28 A-4429-13T2 OPD was representing defendant on appeal since March 2013. It
also asserts that it "had always known the defendant was not
indigent[.]" Yet, it waited until just before the OPD was about
to file defendant's brief in March 2014 to move to disqualify
that agency from representing defendant. By that time, the OPD
had already incurred most, if not all, of the costs necessary to
represent defendant in the appeal. With the matter now fully
briefed, and awaiting submission to this court for resolution,
we will not further disrupt the appeal.
Instead, we vacate the Assignment Judge's April 10, 2014
order requiring defendant to turn over her and M.B.'s financial
records for review. We remand this matter to the Assignment
Judge to conduct an investigation of defendant's indigency after
defendant's and the State's appeals have been fully resolved. 9
In this fashion, defendant's constitutional right to counsel on
appeal will not be infringed and the OPD's representation of her
in the long-standing appeal will not be disrupted.
At the same time, however, the public's interest in
ensuring that only truly indigent individuals receive OPD
representation will be served. As the OPD confirmed in its
amicus brief and at oral argument, it has invoked its statutory
9 The Assignment Judge may designate a different judge to handle the proceedings on remand pursuant to N.J.S.A. 2A:158A-15.1. We leave that determination to the sound discretion of the judge.
29 A-4429-13T2 authority under N.J.S.A. 2A:158A-17a to place "a lien on any and
all property to which the defendant shall have or acquire an
interest." Thus, should the judge determine after the pending
appeal is concluded that defendant was not indigent, she will be
required to reimburse the OPD for the costs it incurred in
representing her.
We provide the following further directions for the conduct
of the proceedings on remand. First, the Supreme Court's
decision in In re Custodian of Records clearly contemplates that
the judge will conduct a confidential investigation rather than
proceedings in open court as occurred here. Supra, 214 N.J. at
164. Thus, the judge should analyze defendant's 5A Form and any
other financial documents obtained under N.J.S.A. 2A:158A-15.1
in camera. Ibid. Should the judge determine that he or she
needs to question defendant under oath concerning the
information set forth in her 5A Form, the judge should also
conduct that proceeding in camera, with defendant having the
opportunity to have her attorney present during the questioning.
Second, in no event should the assistant prosecutor who
represented the State in defendant's trial participate in the
remand proceedings. As the Court made clear, "a separate team
of prosecutors and investigators[,] who [were] not involved with
the pending case[,]" should have been assigned to handle the
30 A-4429-13T2 State's investigation of defendant for theft or fraud in
connection with her request for OPD services and to request that
the OPD no longer be permitted to represent defendant on the
appeal of her conviction and sentence. In re Custodian of
Records, supra, 214 N.J. at 168-69. The Court specifically
found that this procedure was necessary "to guard against
improper accusations of abuse[.]" Id. at 168. Thus, while we
anticipate that the State will have no further involvement in
this case because this is not an "adversarial matter," we
reiterate that the trial prosecutor should not participate in
the proceedings on remand.
Third, consideration of defendant's indigency should be
limited in the first instance to the financial information
defendant provided in her 5A Form and whatever information the
judge may obtain concerning defendant's economic status from
public records as permitted by N.J.S.A. 2A:158A-15.1. Before
requiring defendant to provide M.B.'s financial records or
reviewing the records previously provided by the State, the
judge should give M.B. the opportunity to provide a written
submission outlining the privilege arguments he has raised on
appeal, including his contention that the State improperly
obtained his financial records through the use of grand jury
subpoenas, so that the judge may consider those issues in the
31 A-4429-13T2 investigation. Other than permitting such a written submission,
we do not anticipate the need for further "assistance of counsel
or experts" for the judge in the investigation, but nevertheless
leave such a determination to the judge's sound discretion. In
re Custodian of Records, supra, 214 N.J. at 164, 166.
Fourth, because the factual record is insufficient to
enable us to do so, we do not reach the issue of whether one
spouse may be compelled to pay for the other spouse's legal
expenses on appeal in a case where that spouse has been
convicted of a crime. However, in order to guide the remand, we
make the following observations.
Unlike the judge, we do not believe that the Legislature
intended, by enacting N.J.S.A. 2A:158A-14, to incorporate the
"common law doctrine of necessities" into the factors used to
consider whether a defendant who has been convicted of a crime
is indigent. As we specifically noted in the case primarily
relied upon by the judge, there may be a distinction "between
cases involving convictions and [those involving] acquittals
because convictions reflect intentional wrongdoing or
culpability for which the spouse should not be financially
responsible." DuBois, supra, 243 N.J. Super. at 186 n.6.
In this regard, N.J.S.A. 2A:158A-14e states that a
defendant's "[n]eed [in part] shall be measured according to
32 A-4429-13T2 . . . [w]here appropriate[,] the willingness and ability of the
defendant's immediate family, friends or employer to assist the
defendant in meeting defense costs." (Emphasis added). It is
significant that, contrary to the "common law doctrine of
necessities," which makes one spouse responsible for paying the
necessary expenses of the other, the Legislature stated that the
immediate family members' willingness and ability to assist the
defendant must be considered. Ibid.
Here, M.B. filed an affidavit that made clear he was not
willing to contribute to the expenses defendant would incur in
her appeal from her criminal conviction. Thus, should the judge
wish to consider M.B.'s financial status as part of the
investigation, the judge should first make the threshold
determination whether, based upon the clear language of N.J.S.A.
2A:158A-14e, an "unwilling spouse," perhaps concerned about the
serious nature of an offense committed by the defendant, may
nevertheless be compelled to pay the costs for the spouse's
appeal of his or her conviction for that offense.
In her written decision, the judge stated that "[i]t seems
to the [c]ourt . . . as if the [d]efendant filed for public
defender representation almost entirely out of spite, having
posted on a reputable New Jersey news website on several
occasions taunting New Jersey's taxpayers." However, as we
33 A-4429-13T2 observed above, there is nothing in the record to indicate that
defendant had anything to do with the anonymous postings.
Therefore, we do not discern any basis for the judge to consider
these postings on the remand.
The judge also stated that the "most striking" of the facts
indicating that defendant was not indigent "is that the
[d]efendant retained private counsel for all aspects of the
trial at the trial court level, and also that the [d]efendant's
husband is currently represented by private counsel." Again,
however, this fact has little, if any, relevance to the question
of whether defendant is currently indigent.
The OPD has represented that it frequently provides legal
services to individuals who, like defendant in this case, wish
to appeal a conviction following a trial in which they were
represented by private counsel. Indeed, the fact that a
defendant has exhausted his or her financial resources paying
for private representation at trial, is often a reason why the
same defendant will qualify as indigent for purposes of OPD
representation on appeal. Moreover, M.B.'s retention of an
attorney to represent him after he learned that his financial
information had been made available to the public is not a
factor to be addressed in determining defendant's indigency.
34 A-4429-13T2 In sum, we vacate the April 10, 2014 order and remand this
matter to the Assignment Judge or her designee for a
determination of defendant's indigency after the pending
criminal appeal has been fully resolved by the Appellate
Division.10 At that time, the judge shall conduct an in camera
investigation of the issue, and follow the directives set forth
in this opinion. If the judge concludes that defendant is not
indigent, the judge shall enter an appropriate order requiring
defendant to reimburse the OPD for the costs of her
representation in the appeal.
The April 10, 2014 order is vacated, and the matter
remanded for further proceedings consistent with this opinion.
We do not retain jurisdiction.
10 Should the case thereafter be pending in the Supreme Court, the judge should seek direction from the Court before proceeding.
35 A-4429-13T2