State of New Jersey v. Western World, Inc.

111 A.3d 1113, 440 N.J. Super. 175

• Court: New Jersey Superior Court Appellate Division
• Decided: March 30, 2015
• Docket: A-3007-12 M-0474-13
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3007-12T2 MOTION NO. M-0474-13

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, March 30, 2015

APPELLATE DIVISION v.

WESTERN WORLD, INC.,

Defendant-Appellant. _______________________________________________

Motion Argued March 4, 2014 - Decided March 30, 2015

Before Judges Messano, Hayden and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 08-06-00186.

Susan Brody, Deputy Public Defender, II, argued the cause for Party-In-Interest Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Ms. Brody, on the brief).

Jeffrey S. Mandel argued the cause for appellant Western World, Inc. (Cutolo Mandel, LLC, attorneys; Mr. Mandel, on the brief).

Gregory Robert Mueller, Assistant Prosecutor, argued the cause for respondent State of New Jersey (David J. Weaver, Sussex County Prosecutor, attorney; Mr. Mueller, on the brief). The opinion of the court was delivered by

MESSANO, P.J.A.D.

This motion presents an issue of first impression in this

State, specifically, whether the Office of the Public Defender

(OPD) must represent on appeal a corporation convicted of an

indictable offense and subsequently declared "indigent" by the

trial court.

The facts and procedural history are undisputed. The

Sussex County grand jury returned Indictment No. 08-06-00186,

charging defendant Western World, Inc., and others with crimes

that arose from a July 7, 2006 shooting during the reenactment

of a gunfight at Wild West City, a business operated by

defendant.1 On April 11, 2012, represented by private counsel

1 We previously described the circumstances in our unpublished opinion, Stabile v. Benson, No. A-4009-09 (App. Div. Sept. 29, 2011):

[A]n actor [employed] by [defendant] . . . was participating in the reenactment of a gunfight at Wild West City. A fellow employee actor used a gun that did not contain blanks but rather live ammunition that had been brought to work by another employee sometime prior to the gunfight skit. [The actor] was shot in the head during the skit, suffered a catastrophic brain injury, and was severely and permanently disabled as a result.

[Id. (slip op. at 4).]

(continued)

2 A-3007-12T2 and pursuant to a plea agreement, defendant pled guilty as an

accomplice to count fifteen of the indictment as amended to

charge third-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b), and 2C:2-6(b)(1). The State agreed to dismiss the

balance of the indictment and recommend a one-year period of

probation, subject to specific terms and conditions.

We have not been provided with a transcript of the plea

proceedings as part of this motion record. However, the plea

form and addendum, apparently prepared by the prosecutor,

indicated that the State would also dismiss the indictment as to

co-defendants Michael Stabile, at the time defendant's

president, Nathan McPeak, one of its employees, and Cheyenne

Corporation, an entity that owned the land upon which Wild West

City operated. The addendum also indicated that the State would

not seek a fine, and it set forth the State's recommendations

regarding conditions of probation. Lastly, the addendum

provided:

(continued) Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits citation "to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law . . . ." See Badiali v. New Jersey Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd ___ N.J. ___, ___ (2015) (slip op. at 3).

3 A-3007-12T2 It is acknowledged that the amendment to Count [Fifteen] is legally proper and sufficient and will not be challenged on appeal. [Defendant] reserves the right to appeal the limited question of whether a carry permit was required by the actors under the facts of this case. [Defendant] waives any other appellate issues and agrees to withdraw the previously filed interlocutory appeal.

Stabile executed the plea form on behalf of defendant. The

judgment of conviction entered on October 23, 2012, reflects

that the judge placed defendant on probation for one year,

imposed a $7500 fine to be paid over a period of three years,

and imposed other mandatory financial penalties.

On November 8, 2012, defense counsel wrote to the regional

office of OPD, indicating that defendant wished to appeal the

issue reserved at the time of its guilty plea, as well as the

imposition of the fine, and that his firm, which had not been

compensated, would not represent defendant. He further noted

the judge told Stabile at sentencing that "the corporation would

be entitled to a Public Defender if it could not afford an

attorney . . . ." Counsel stated that defendant, however, was

"turned away by the Public Defender's Office." Citing our

decision in In re CLM Construction Co., 277 N.J. Super. 329

(App. Div. 1994), defense counsel contended that defendant was

entitled to representation by OPD on appeal.

4 A-3007-12T2 Based on a December 19, 2012 letter from an investigator

assigned to the vicinage Criminal Division Manager's Office, we

gather that Stabile applied on behalf of defendant for the

services of OPD on November 30. Stabile indicated that

defendant had sold its interest in Wild West City in 2007. The

corporation's only asset was "a 58 acre tract of land containing

a large area of wetlands." Review of defendant's financial

records revealed that it had "available bank funds of

$1,874.56," and it was in debt "due to past loans and attorney

fees." There was also a pending civil suit against defendant

based upon the July 7, 2006 incident. As a result, the

investigator approved defendant's application for OPD's services

"upon the acceptance of . . . [OPD]."2

On February 26, 2013, OPD filed a notice of appeal on

behalf of defendant, and, on September 11, OPD filed this motion

2 The record does not contain any order from the trial judge appointing OPD to represent defendant on appeal. See R. 2:7-1 ("[A] person, who by reason of poverty, seeks relief from the payment of appellate filing fees . . . may without fee file with the trial court a verified petition setting forth the facts relied upon, and the court, if satisfied of the facts of indigency, shall enter an order waiving such payment and deposit.") (emphasis added); see also R. 2:7-2 ("All persons convicted of an indictable offense who are not represented by [OPD] and who desire to appeal, and who assert they are indigent, shall complete and file . . . with the court in which they were convicted, the appropriate form . . . . They shall thereupon be referred to [OPD], which shall represent them on such appeal . . . as would warrant the assignment of counsel . . . .") (emphasis added).

5 A-3007-12T2 to be relieved as counsel. OPD argued that, pursuant to the

Public Defender Act (the PDA), N.J.S.A. 2A:158A-1 to -25, it

retained "some measure of discretion" regarding allocation of

its "limited resources." OPD also questioned the "value of

th[e] appeal," because defendant's probationary term was about

to end in October 2013, and the adverse decision defendant

sought to appeal involved the denial of its motion to dismiss

the original charge in the indictment, not the amended charge to

which it pled guilty. OPD also concluded that any appeal

regarding the imposition of a fine lacked merit.

On September 23, Stabile filed a letter brief in opposition

to the motion on behalf of defendant. Rule 1:21-1(c), however,

provides that subject to certain exceptions that do not apply

here, "an entity . . . other than a sole proprietorship shall

neither appear nor file any paper in any action in any court of

this State except through an attorney authorized to practice in

this State." We therefore appointed counsel to represent

defendant for purposes of this motion.3

In opposing OPD's motion, defendant argued that while OPD

has discretion to allocate its resources, it "lacks discretion

to deny representation to an indigent defendant," and, based

3 The Court wishes to extend its thanks to counsel for accepting the designation.

6 A-3007-12T2 upon the express language of the PDA, the motion must be denied.

Additionally, citing N.J.S.A. 2A:158A-15.1, defendant contended

that review of OPD's request lay with the vicinage Assignment

Judge, although, because of the public interests at stake,

defendant urged us to exercise our original jurisdiction

pursuant to Rule 2:10-5 and decide the motion.4

We also requested that the State file a response to

defendant's motion. Although agreeing that the appeal lacked

merit, the assistant prosecutor who handled the prosecution in

the Law Division took no position on OPD's request to be

relieved.

At oral argument before us, OPD expanded upon its requested

relief. OPD argued that because no "liberty" interest is at

stake, it has no obligation to represent a corporate defendant

under any circumstances. OPD argued that to the extent our

prior decision in CLM Construction implies a contrary result, we

should overrule that precedent.

4 N.J.S.A. 2A:158A-15.1 provides in pertinent part: "A determination to grant or deny the services of the Public Defender shall be subject to final review by the Assignment Judge or his designated judge." As noted, there was no order from the Law Division appointing OPD, and the record fails to disclose whether OPD sought such a review. In any event, the statute has no particular application to the issue at hand, because pursuant to Rule 2:7-3, a defendant's requests for relief regarding the waiver of fees or the appointment of counsel on appeal because of indigency, see R. 2:7-1 and -2, are reviewable by this court.

7 A-3007-12T2 I.

The only discussion in a published New Jersey decision as

to whether OPD is required to represent an indigent corporation

appears in a footnote in CLM Construction. There, the trial

judge appointed an OPD pool attorney, who had represented the

corporate president as an individual co-defendant, to also

represent the corporate defendant. CLM Const., supra, 277 N.J.

Super. at 330-32. Both defense counsel and the assistant

prosecutor advised the judge that OPD did not represent

corporations. Id. at 331. Nevertheless, the judge indicated he

would appoint counsel to represent the corporation. Id. at 332.

Although counsel provided personal justification for her

refusal, the judge would not reconsider his order of

appointment, ibid., and we granted counsel leave to appeal. Id.

at 330. We reversed the order, concluding that the judge failed

to comply with then-existing Rule 3:27-1,5 failed to make full

inquiry of the corporation or its president, and failed to

5 Rule 3:27-1 was subsequently deleted, and its text combined with Rule 3:4-2. Pressler & Verniero, Current N.J. Court Rules, comment on R. 3:27-1 (2015). Rule 3:4-2(b)(5) now provides that at a defendant's first appearance, "the judge shall . . . if the defendant asserts indigence, and does not affirmatively . . . waive the right to counsel, assure that the defendant completes the appropriate application form for public defender services and files it with the criminal division manager's office[.]"

8 A-3007-12T2 acknowledge the attorney's objections to the appointment; we

remanded the matter for further proceedings. Id. at 334.

In a footnote, we discussed the assertion by counsel and

the prosecutor that OPD did not represent corporate defendants.

Id. at 331 n.2. We noted that our research "fail[ed] to uncover

any New Jersey authority specifically considering this point."

Ibid. We further observed that both State v. Rush, 46 N.J. 399

(1966), and State v. Horton, 34 N.J. 518 (1961), "discuss the

indigent's right to appointed counsel[,]" but that neither case

"distinguish[ed] between indigent individuals and indigent

corporations," and we specifically cited N.J.S.A. 1:1-2 for the

proposition that "a corporation is a person." CLM Const.,

supra, 277 N.J. Super. at 331 n.2. We then considered the

"eight determining factors for eligibility for public defender

representation" contained in N.J.S.A. 2A:158A-14, and noted that

three factors "clearly only apply to people[,]" but the

remaining five factors "may be read as applicable to people or

corporations." Ibid.

We further observed that neither the federal Criminal

Justice Act, 18 U.S.C.A. § 3006A, nor Federal Rule of Criminal

Procedure 44(a), "mentions indigent corporations." Ibid.

Additionally, we took note of two New York decisions, People v.

BNB Realty Corp., 379 N.Y.S.2d 324 (N.Y. Crim. Ct. 1976), and

9 A-3007-12T2 People v. Select Tire, 374 N.Y.S.2d 274 (N.Y. Crim. Ct. 1975),

holding that "the right to counsel, which protects only

individual or property rights, does not exist for corporations

where corporations could neither be imprisoned nor fined, based

on indigency." CLM Const., supra, 277 N.J. Super. at 331 n.2.

II.

We address the issue our footnote in CLM Construction

succinctly framed, but left unresolved, by first considering the

nature and scope of the fundamental right to counsel embodied in

the United States and New Jersey Constitutions.

A.

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

defence." The Amendment guarantees the right of a criminal

defendant to retain counsel of his choice, United States v.

Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 2561, 165 L.

Ed. 2d 409, 417 (2006), 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.

Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d

383 (1979).

10 A-3007-12T2 The right to counsel on appeal from a State court criminal

conviction derives not from the text of the Sixth Amendment, but

rather from the Fourteenth Amendment's equal protection

provisions. As we have explained,

Although there is no constitutional right to an appeal, Griffin v. Illinois, 351 U.S. 12, 18, 76 S. Ct. 585, 590, 100 L. Ed. 891, 898 (1956), once a right to appeal is provided, that right must be protected in a non- discriminatory fashion. Accordingly, an indigent defendant has a right to counsel on direct appeal. Douglas v. California, 372 U.S. 353, 357, 83 S. Ct. 814, 816, 9 L. Ed. 2d 811, 814 (1963).

[State v. Coon, 314 N.J. Super. 426, 434 (App. Div.), certif. denied, 157 N.J. 543 (1998).]

The right to appointed counsel under the Sixth Amendment,

however, exists only when "the litigant may lose his physical

liberty if he loses the litigation." Lassiter v. Dep't of Soc.

Servs., 452 U.S. 18, 25, 101 S. Ct. 2153, 2158, 68 L. Ed. 2d

640, 648 (1981). "[A]s a litigant's interest in personal

liberty diminishes, so does his right to appointed counsel."

Id. at 26, 101 S. Ct. at 2159, 68 L. Ed. 2d at 649. "[I]t is

the defendant's interest in personal freedom, and not simply the

special Sixth and Fourteenth Amendments right to counsel in

criminal cases, which triggers the right to appointed counsel in

criminal cases. . . ." Id. at 25, 101 S. Ct. at 2158, 68 L. Ed.

2d at 648. Thus, "the line defining the [federal]

11 A-3007-12T2 constitutional right to appointment of counsel" is "actual

imprisonment," not fines or the threat of imprisonment. Scott,

supra, 440 U.S. at 373, 99 S. Ct. at 1162, 59 L. Ed. 2d at 389.

The federal circuits have held the Sixth Amendment applies

to corporations.

The sixth amendment describes the class of persons protected by its terms with the word "accused." This language does not suggest that the protection of sixth amendment rights is restricted to individual defendants.

Furthermore, an accused has no less of a need for effective assistance due to the fact that it is a corporation. The purpose of the guarantee is to ensure that the accused will not suffer an adverse judgment or lose the benefit of procedural protections because of ignorance of the law. A corporation would face these same dangers unless the agent representing it in court is a competent lawyer. Thus, the right to effective assistance of counsel is not so peculiarly applicable to individuals that corporations should not be entitled to it.

Nor can we see how this right is in any manner inconsistent with a corporation's status as a creature of state law. Consequently, we hold that the guarantee of effective assistance of counsel applies to corporate defendants.

[United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d 740, 743 (3d Cir. 1979) (internal citations omitted);

12 A-3007-12T2 accord United States v. Unimex, Inc., 991 F.2d 546, 549 (9th Cir. 1993).]6

Significantly, however, federal courts have uniformly held

that corporations, unlike defendants who are natural persons, do

not have a Sixth Amendment right to appointed counsel at public

expense. See United States v. Hartsell, 127 F.3d 343, 350 (4th

Cir. 1997); Unimex, Inc., supra, 991 F.2d at 550; United States

v. Rocky Mt. Corp., 746 F. Supp. 2d 790, 803 (W.D. Va. 2010);

United States v. Rivera, 912 F. Supp. 634, 638 (D.P.R. 1996);

Mid-Central/Sysco Food Servs., Inc. v. Reg'l Food Servs., Inc.,

755 F. Supp. 367 (D. Kan. 1991). The court in Rocky Mt. Corp.,

supra, 746 F. Supp. 2d at 800, explained:

[T]he corporation's right to counsel does not precisely mirror the individual's right to counsel. It follows that when we speak of the corporation's Sixth Amendment right to counsel, we in no way imply that it can have counsel it cannot afford. Rather, what the corporation has is the right to retain the counsel of its choice to represent its interests without undo governmental intrusion. Thus, a corporation's Sixth Amendment right in a criminal trial is its right to retain counsel while an individual's Sixth Amendment right includes the right to appointed counsel. Unlike an individual, a corporation cannot have what it cannot afford.

6 Our Supreme Court has also explicitly recognized that the Sixth Amendment's right to counsel applies to corporations. Matter of 668 Advisory Comm. on Prof'l Ethics, 134 N.J. 294, 302 (1993).

13 A-3007-12T2 [(Emphasis added) (internal citation omitted).]

See also Peter J. Henning, The Conundrum of Corporate Criminal

Liability: Seeking a Consistent Approach to the Constitutional

Rights of Corporations in Criminal Prosecutions, 63 Tenn. L.

Rev. 793, 885 (1996) (explaining that under the United States

Constitution, "a corporation cannot claim the same measure or

degree of protection that the individual defendant may claim").

The Sixth Amendment right to counsel is so limited because

corporations cannot be imprisoned or face a loss of liberty.

Unimex, Inc., supra, 991 F.2d at 550; Rivera, supra, 912 F.

Supp. at 638.

B.

In part, Article I, Paragraph 10 of the New Jersey

Constitution provides, "In all criminal prosecutions the accused

shall have . . . the assistance of counsel in his defense." 7 The

Court long ago noted, that "[f]rom very early days New Jersey

has considered the matter of counsel for an indigent criminal

defendant as one of absolute right under state law." Horton,

7 Our prior constitutions also included a right to counsel. N.J. Const. of 1776, art. XVI ("all criminals shall be admitted to the same privileges of witnesses and counsel, as their prosecutors are or shall be entitled to"); N.J. Const. of 1844, art. I, ¶ 8 (in all criminal prosecutions the accused shall have the right to "the assistance of counsel in his defense"). See Rush, supra, 46 N.J. at 403.

14 A-3007-12T2 supra, 34 N.J. at 522. Since 1795, New Jersey has legislated

the right of an indigent defendant to assigned counsel.

Patterson, Laws of the State of N.J., 162 (1800).8 See also

Robert J. Martin and Walter Kowalski, New Jersey Development: "A

Matter of Simple Justice": Enactment of New Jersey's Municipal

Public Defender Act, 51 Rutgers L. Rev. 637, 645 (1999) (noting

that New Jersey was the first state in the nation to enact

legislation providing assigned counsel to represent indigent

defendants in its courts).

In addition, "the right to appointed counsel for indigent

litigants has received more expansive protection under our state

law than federal law." Pasqua v. Council, 186 N.J. 127, 147 n.5

(2006). In many cases, the Court found support for such

expansion in Article I, Paragraph 1 of the New Jersey

Constitution, our State's equivalent of the due process

provisions of the Fifth and Fourteenth Amendments of the Federal

Constitution. Ibid.

For example, State constitutional due process rights

require the appointment of counsel for indigents in a variety of

8 The 1795 Act provided that "the court, before whom any person shall be tried upon indictment, is hereby authorized and required to assign to such person, if not of ability to procure counsel, such counsel, not exceeding two, as he or she shall desire, to whom such counsel shall have free access at all seasonable hours." Paterson, Laws of New Jersey 162 (1800).

15 A-3007-12T2 situations where the loss of liberty is not at stake. See,

e.g., N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301,

306-07 (2007) (termination of parental rights); Doe v. Poritz,

142 N.J. 1, 31 (1995) (Meagan's law tier classification); In re

S.L., 94 N.J. 128, 142 (1983) (involuntary civil commitment).

State constitutional due process rights also require the

appointment of counsel in circumstances involving the potential

loss of liberty, albeit not as a result of a "criminal

prosecution[]." See Pasqua, supra, 186 N.J. at 149 (holding due

process requires the appointment of counsel for indigent parents

at risk of incarceration resulting from child support

enforcement hearings). Additionally, without referencing our

State Constitution, in Rodriguez v. Rosenblatt, 58 N.J. 281

(1971), the Court extended the right to appointed counsel to

indigent defendants in quasi-criminal municipal court

prosecutions. Concluding that result was compelled "as a matter

of simple justice," the Court held that "no indigent defendant

should be subjected to a conviction entailing imprisonment in

fact or other consequence of magnitude without first having had

due and fair opportunity to have counsel assigned without cost."

Id. at 295. Relying on the principle of "simple justice," in

State v. Hermanns, 278 N.J. Super. 19, 30 (App. Div. 1994), we

16 A-3007-12T2 subsequently held that imposition of significant fines

constituted a consequence of magnitude.9

Nonetheless, despite New Jersey's long history of assigning

counsel to represent indigent defendants, and the expanded

protections afforded under our constitution to other indigent

litigants, our research has revealed no case in which a court

has appointed counsel at public expense to represent an

"indigent" corporation.

III.

The arguments made by defendant and OPD require us to

construe the PDA, and in doing so, we apply some well-recognized

tenets. "In statutory interpretation, a court's role 'is to

determine and effectuate the Legislature's intent.'" State ex

rel. K.O., 217 N.J. 83, 91 (2014) (quoting Allen v. V & A Bros.,

208 N.J. 114, 127 (2011)). "In construing any statute, we must

give words 'their ordinary meaning and significance,'

9 In an appendix to Part Seven of the court rules governing practice in the municipal courts, and applicable to "persons convicted of non-indictable offenses" seeking representation, the term "consequence of magnitude" is defined as: 1) any sentence of imprisonment; 2) any period of driver's license suspension, suspension of non-resident reciprocity privileges or driver's license ineligibility; or (3) any monetary sanction of $800 or greater in the aggregate. Guidelines for Determination of Consequence of Magnitude, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII (2015).

17 A-3007-12T2 recognizing that generally the statutory language is 'the best

indicator of [the Legislature's] intent.'" Tumpson v. Farina,

218 N.J. 450, 467 (2014) (alteration in original) (quoting

DiProspero v. Penn, 183 N.J. 477, 492 (2005)).

"However, not every statute is a model of clarity. When

the statutory language is sufficiently ambiguous that it may be

susceptible to more than one plausible interpretation, we may

turn to such extrinsic guides as legislative history, including

sponsor statements and committee reports." Wilson ex rel.

Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012) (citing

Burns v. Belafsky, 166 N.J. 466, 473 (2001)). "We may also turn

to extrinsic guides if a literal reading of the statute would

yield an absurd result, particularly one at odds with the

overall statutory scheme." Ibid. (citations omitted). A court

"should also 'be guided by the legislative objectives sought to

be achieved by enacting the statute.'" Town of Kearny v.

Brandt, 214 N.J. 76, 98 (2013) (quoting Wilson, supra, 209 N.J.

at 572). "Accordingly, when a literal interpretation of

individual statutory terms or provisions would lead to results

inconsistent with the overall purpose of the statute, that

interpretation should be rejected." Perrelli v. Pastorelle, 206

N.J. 193, 201 (2011).

18 A-3007-12T2 The PDA provides in pertinent part that "[i]t shall be the

duty of [OPD] to provide for the legal representation of any

indigent defendant who is formally charged with the commission

of an indictable offense[,]" such representation "shall include

any direct appeal from conviction . . . ." N.J.S.A. 2C:158A-5

(emphasis added). Under the PDA, "'indigent defendant' means 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, as determined

by the factors in [N.J.S.A. 2A:158A-14], and to provide all

other necessary expenses of representation." N.J.S.A. 2A:158A-2

(emphasis added).

Although "person" is not defined by the PDA, defendant

argues that, "[u]nless . . . otherwise expressly provided or

there is something in the subject or context repugnant to such

construction[,]" N.J.S.A. 1:1-2 supplies the meaning of certain

statutory "words and phrases." "The word 'person' includes

corporations . . . unless restricted by the context to an

individual as distinguished from a corporate entity . . . ."

Ibid.; see also N.J.S.A. 2C:1-14(g) (providing that under the

Criminal Code, "'[p]erson[]' . . . include[s] any natural person

and, where relevant, a corporation . . . ."). Defendant's

argument is straightforward. Since defendant is a person,

19 A-3007-12T2 charged with . . . an indictable offense and lacking the present

financial ability to secure competent representation on appeal,

it is an indigent defendant for purposes of the PDA, and,

therefore, OPD shall provide for its representation on appeal.

The two statutory provisions cited by defendant that

ostensibly supply the definition of "person" omitted from the

PDA by the Legislature, however, are limited by their very

terms. The definitions contained in N.J.S.A. 2C:1-14 are

expressly limited to the Criminal Code. The meanings of

statutory terms supplied by N.J.S.A. 1:1-2 must be rejected if

"there is something in the subject or context [of a statute that

is] repugnant to such construction." Specifically construing a

statute's use of "person" interchangeably with "corporation[]"

should be rejected if the word "person" is "restricted by the

context to an individual as distinguished from a corporate

entity . . . ." Ibid.

Decisions that have utilized the default meanings contained

in N.J.S.A. 1:1-2 as aids in interpreting specific statutory

language are too numerous to cite. See, e.g., Shelton v.

Restaurant.com, Inc., 214 N.J. 419, 430-31 (2013) (applying the

default meanings to terms left undefined by the Truth-in-

Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A.

20 A-3007-12T2 56:12-14 to -18). There are far fewer examples of decisions in

which the default meaning was explicitly rejected.

In In re Electrical Inspection Authorities, 127 N.J. Super.

295, 300 (App. Div. 1974), we considered, among other things,

whether N.J.S.A. 45:5A-17, which by its terms applied only to

municipalities, should be interpreted to also include counties.

We recognized that, pursuant to N.J.S.A. 1:1-2, the default

statutory meaning of "[m]unicipality" did not include counties.

Id. at 301. Nevertheless, we held:

The question is one of legislative intent. In our view, the subject and context of the quoted section indicates that . . . the legislative intent was that the provisions of N.J.S.A. 45:5A-17 should apply to all governmental units, i.e., cities and counties which, with statutory authorization, provide for electrical inspections . . . and that therefore the word "municipality" should be construed to include a county.

[Ibid. (emphasis added).]

In a different context, in Housing Authority of Atlantic

City v. Coppock, 136 N.J. Super. 432, 434 (App. Div. 1975), we

considered the default meaning of "month," as supplied by

N.J.S.A. 1:1-2 ("[t]he word 'month' means a calendar month").

We concluded in that case that the notice of termination served

upon the tenant thirty-one days prior to the filing of the

complaint complied with N.J.S.A. 2A:18-61.1(b) (requiring "one

21 A-3007-12T2 month's" prior notice). Ibid. We specifically rejected the

argument that the Anti-Eviction Act required "the termination be

directed to the end of the month."10 Ibid. We held that given

the express language of the lease that required thirty days'

notice, "the definition of 'month' in N.J.S.A. 1:1-2 as a

calendar month is inapplicable under these circumstances."

Ibid.

Whether the default meanings supplied by N.J.S.A. 1:1-2

support or defeat a particular construction returns us to the

lodestar of statutory interpretation — the intent of the

Legislature. See Shelton, supra, 214 N.J. at 431-36 (examining

"the background of the TCCWNA" to determine whether its "scope"

or the "context in which the [undefined] term . . . [was] used

[in the statute was] repugnant" to adopting the default

meaning); see also In re Electrical Inspection, supra, 127 N.J.

Super. at 300 (rejecting the default meaning when contrary to

intent of the Legislature).

In Hardwicke v. American Boychoir School, 188 N.J. 69, 87

(2006), the Court had to consider "whether an institution . . .

c[ould] be a 'person' under the [Child Sexual Abuse Act (CSAA),

N.J.S.A. 2A:61B-1]." Finding the meaning of the term

10 Although not explained in the decision, we infer that the notice terminated the tenancy prior to the end of a calendar month.

22 A-3007-12T2 "ambiguous," the Court "look[ed] beyond the language of the

statute and consider[ed] extrinsic evidence [and] . . .

statutory context[,]" id. at 88, as well as N.J.S.A. 1:1-2's

definition of "person." Id. at 89. Ultimately, the Court

concluded,

[i]n light of the language of the statute as supplemented by the definition of person in Title I, the extrinsic evidence of legislative intent, and the State's strong policy to hold both active and passive child abusers accountable, we find that the [defendant] is a person under the passive abuse provision of the CSAA.

[Id. at 91.]

In short, if the default meaning of "person" supplied by

N.J.S.A. 1:1-2 leads to a result contrary to the Legislature's

intent when it enacted the PDA, that meaning must be rejected.

We are required, therefore, to examine the legislative history

of the PDA.

As already noted, New Jersey's history of providing counsel

to indigent criminal defendants predates passage of the PDA by

nearly two centuries. From 1948 to 1967, counsel were assigned

to indigent defendants under various Rules of Court. For

example, Rule 1:12-9(a) (repealed 1967) provided that "[w]here a

person charged with a crime appears in a trial court without

counsel, the court shall advise him of his right to counsel

23 A-3007-12T2 . . . and if indigent, assign counsel to represent him. . . ."

The application for the assignment of counsel (Form 5A), set

forth in the Appendix to the 1967 Court Rule, contained

questions specifically geared toward an individual, not a

corporation, including whether the defendant was married, had 11 children, earned a salary, or was employed.

"In Rush, supra, 46 N.J. at 412, the Court decided that the

time had come to relieve the New Jersey bar of the task of

defending without compensation indigents accused of indictable

crimes." In re Cannady, 126 N.J. 486, 489 (1991). The

immediate solution arrived at by the Rush Court was to impose

the costs of providing counsel upon the counties. Ibid. The

11 The Court recently noted that the current forms similarly collect

general personal data, such as name, address, social security number, date of birth, and marital status . . . . background information on the defendant's family, military service, and education . . . [and] potentially sensitive information about a defendant's past and present physical condition, mental health, and drug and alcohol use and treatment.

[In re Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 159-160 (2013).]

We attach a sample of the current form as an appendix to this opinion. As is apparent, the form implicitly seeks information unique to a natural person.

24 A-3007-12T2 Court delayed the effective date of its decision, however, to

permit the Legislature to decide how best to provide for the

indigent representation of criminal defendants indicted for

crimes. Id. at 489-90. The Legislature responded by enacting

the PDA in 1967, L. 1967, c. 43, replacing the assigned counsel

system with a statewide program for the defense of indigents at

public expense.

To some degree, the PDA was intended to address the

expected increased costs to individual counties as a result of

the Rush decision. This is clear from sponsors' statements in

support of earlier versions of the bill, see e.g., Sponsor's

Statement to A. 752, at 2 (1967) (noting that increased costs to

counties would result in "an undue burden"), and the Governor's

Statement to S. 287, (1967) (noting that appropriations to fund

the public defender system were the "result of a determined

effort by the State government to . . . be of assistance to our

counties").

Foremost and primarily, however, the PDA was intended to

meet the state's obligation under the Sixth Amendment to provide

court-appointed counsel to indigent defendants, as was then very

recently applied to the states through the Fourteenth

Amendment's Due Process Clause in Gideon v. Wainwright, 372 U.S.

335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). See Public Hearings

25 A-3007-12T2 before Special (Senate) Committee to Determine the Advisability

of providing for the Establishment of a Public Defender System

in the Several Counties, at 2, 27, 31, 40, 59, 11A (Sept. 8,

1965) (noting that Gideon imposed a "tremendous responsibility"

on the State to insure an indigent defendant's right to

appointed counsel).

The PDA as enacted implemented recommendations contained in

the December 22, 1966 report of the "Commission on the Defense

of Indigent Persons Accused of Crime" ("Report").12 See Cannady,

supra, 126 N.J. at 490; Sponsor's Statement to S. 287, at 7

(1967); Governor's Statement to S. 287, supra. In considering

who was entitled to appointed counsel at public expense, the

Commission implicitly spoke in terms of natural persons:

Perhaps the most difficult problem is the matter of defining who is "indigent." Several decades ago the term meant an actual pauper who was entirely without means.[13] The term no longer has this narrow significance. In general, it is now widely understood as referring to a person who is unable to afford the cost of engaging counsel to represent him.

[Report, supra, at 5 (emphasis added).]

12 The Report can be found at 90 N.J.L.J. 17 (Jan. 12, 1967). 13 A "pauper" is defined as "[a] very poor person, esp[ecially] one who receives aid from charity or public funds." Black's Law Dictionary 1243 (9th ed. 2009).

26 A-3007-12T2 Similarly, earlier public hearings on the proposed PDA, where

pre-eminent lawyers of the day engaged in all aspects of the

legal profession testified, contain repeated references to the

need to provide publicly-financed counsel to "individuals,"

"paupers" and "poor men," without any reference to corporations.

Public Hearings, supra, at 2, 41, 60.

The Court has said that the Legislature created OPD to

"ensure that the State fulfilled its constitutional obligation

to provide legal services for indigent defendants." In re

Custodian of Records, supra, 214 N.J. at 158. The PDA expressly

provides, "It is hereby declared to be the policy of this State

to provide for the realization of the constitutional guarantees

of counsel in criminal cases for indigent defendants . . . ."

N.J.S.A. 2A:158A-1 (emphasis added). Tellingly, however, the

PDA does not track exactly the language of the Sixth Amendment

or the right to counsel provided by our Constitution, both of

which accord the right to "the accused" in criminal

prosecutions.

C.

As initially adopted, the PDA did not provide for the

representation of indigent defendants charged with non-

indictable offenses or juveniles. See In re State in Interest

of Antini, 53 N.J. 488, 492 (1969). With regard to non-

27 A-3007-12T2 indictable offenses, in 1974, in response to the Court's

decision in Rodriguez, supra, 58 N.J. at 281, the Legislature

amended the PDA, L. 1974, c. 33, to expand representation to

"include persons charged as juvenile delinquents or juveniles in

need of supervision, persons charged with parole violation, and

indigent disorderly persons." Sponsor's Statement to A. 1298 at

2 (1974). See In re Contempt of Spann, 183 N.J. Super. 62, 67

(App. Div. 1982). N.J.S.A. 2A:158-5.2 provides:

The Public Defender shall . . . provide for the legal representation of any person charged with a disorderly persons offense or with the violation of any law, ordinance or regulation of a penal nature where there is a likelihood that the persons so charged, if convicted, will be subject to imprisonment or, in the opinion of the court, any other consequence of magnitude.

[(emphasis added).]

The Legislature clearly intended to expand the universe of

offenses triggering the right to counsel at public expense for

indigent defendants. The amendment did not, however, expand the

definition of "indigent defendants" to include indigent

corporations.14

14 The amendment also did not define the term "consequence of magnitude." The current guidelines include two criteria, a sentence of imprisonment and suspension of a driver's license, that can only apply to natural persons. Pressler & Verniero, supra, Appendix to Part VII (2015). One criterion, "any (continued)

28 A-3007-12T2 In any event, the Legislature failed to appropriate the

funds necessary to expand OPD to the municipal court level. As

a result, OPD was never required to assume its statutory

obligation under N.J.S.A. 2A:158-5.2. Madden v. Delran, 126

N.J. 591, 612 (1992); Spann, supra, 183 N.J. Super. at 67.15

As originally enacted, the PDA also did not provide for the

representation of indigent juveniles. However, just thirteen

days after the PDA was enacted, on May 15, 1967, the United

States Supreme Court held that an indigent juvenile had the

right to be furnished with counsel during "proceedings to

determine delinquency which may result in commitment to an

institution in which the juvenile's freedom is

curtailed. . . ." In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428,

1451, 18 L. Ed. 2d 527, 554 (1967).

As a result, our Supreme Court amended former Rule 6:3-4(c)

and (d) (1968 (now repealed)), to provide for the assignment of

(continued) monetary sanction of $800 or greater in the aggregate," could apply to natural persons and corporations. 15 In 1997, the Legislature enacted the Municipal Public Defender Act, which created a separate system of municipal public defenders, N.J.S.A. 2B:24-1 to -17. The legislation does not shed light on the issue presented, since it similarly requires representation of an "indigent person," N.J.S.A. 2B:24-2, who likely, "if convicted, . . . will be subject to imprisonment or other consequence of magnitude." N.J.S.A. 2B:24-7(a).

29 A-3007-12T2 counsel for indigent juveniles, albeit, not by the OPD, but

under the old alphabetical rotation system as set forth in Rule

1:12-9(c) (1968 (now repealed)). The Court in Antini, supra, 53

N.J. at 494-95, directed, as it had in Rush, supra, 46 N.J. at

415, that "lawyers who provided services since the decision in

Gault was handed down should be reimbursed for any out-of-pocket

expenditures, and the juvenile court judges are authorized to

enter orders, after appropriate application, directing payment

thereof by the particular county."

The Legislature's response was again swift. It amended the

PDA, L. 1968, c. 371, to provide for representation of juveniles

by the OPD:

[T]he Public Defender shall . . . provide for the legal representation of any person who is charged as a juvenile delinquent or as a juvenile in need of supervision and where in the opinion of the juvenile judge the prosecution of the complaint may result in the institutional commitment of such person.

[N.J.S.A. 2A:158A-24.]

D.

These two examples demonstrate the Legislature's clear

ability to amend the PDA in order to address the rapidly

changing legal landscape whenever the rights of indigent

defendants are implicated. In both situations, the impetus

behind the amendments to the PDA were the vital personal liberty

30 A-3007-12T2 interests at stake. On other occasions, the Legislature has not

hesitated to enact legislation, separate from the PDA, to ensure

that the rights of indigent natural persons are protected by

representation through OPD.

For example, the Legislature enacted legislation that

requires the Office of Parental Representation in OPD to

represent parents and guardians charged in abuse and neglect

cases, or those facing the loss of parental rights, in accord

with their constitutional rights. See, e.g., B.R., supra, 192

N.J. at 306-07; N.J.S.A. 9:6-8.21; N.J.S.A. 9:6-8.30; N.J.S.A.

9:6-8.43(a); N.J.S.A. 30:4C-15.4(a).

Similarly, the Division of Mental Health Advocacy in OPD

provides representation at civil commitment hearings, as

constitutionally guaranteed, see S.L., supra, 94 N.J. at 142,

and statutorily required, not under the PDA, but pursuant to the

civil commitment statutes and court rules. See, e.g., N.J.S.A.

30:4-27.11(c); N.J.S.A. 30:4-27-12(d); R. 4:74-7(c)(2); R. 4:86-

10. OPD counsel is also provided by statute when an indigent

defendant faces commitment under the Sexually Violent Predator

Act, N.J.S.A. 30:4-27.24 to -27.38, as constitutionally

guaranteed, In re Commitment of D.L., 351 N.J. Super. 77, 89

(App. Div. 2002), certif. denied, 179 N.J. 373 (2004), and as

31 A-3007-12T2 statutorily required by Title 30. N.J.S.A. 30:4-27.29(c);

N.J.S.A. 30:4-27.31.

E.

We distill from this discussion the following. The PDA was

born from a legislative desire to practically and publicly fund

the criminal defense of indigents, as required by evolving

federal constitutional doctrine and the long history of New

Jersey's constitutional and statutory right to counsel. The

legislative history of the PDA demonstrates that, at its

inception, the focus of the proposed legislation was on the

protection of the rights of "indigent people" who were natural

persons, not corporations or other business entities. Although

the Legislature could have specifically included corporations or

other business entities within the PDA's definition of "indigent

defendants," it declined to do so. See, e.g., Zabilowicz v.

Kelsey, 200 N.J. 507, 517 (2009) ("The Legislature knows how to

draft a statute to achieve that result when it wishes to do

so."). Yet, whenever necessary, the Legislature has either

amended the PDA or enacted other laws to specifically provide

for the representation by OPD of natural persons whose personal

liberty rights may be adversely affected, or who face other

consequences of magnitude.

32 A-3007-12T2 We conclude, therefore, that it "is repugnant" "to the

subject [and] context" of the PDA, N.J.S.A. 1:1-2, to construe

the word "person" as used in the PDA to include a corporation.

Such a construction is contrary to the Legislature's intent when

it first enacted the PDA, an intention since restated by various

amendments to the PDA and other legislation.

F.

Our conclusion is supported by an examination of federal

decisions that have interpreted language in the CJA and the

Dictionary Act, 1 U.S.C.A. § 1 to § 8, that is similar to that

The court in Unimex, supra, 991 F.2d at 549-50, explained

that the CJA

provides for appointment of counsel for an indigent "person," but does not say whether a corporation is a "person" for purposes of appointment of counsel. 18 U.S.C. § 3006A(a). The word "person" in a federal statute includes corporations "unless the context indicates otherwise." 1 U.S.C. § 1. In the statute providing for appointment of counsel, the context does indeed "indicate otherwise." . . . . The statutory context includes a list of classes of persons eligible, with catch-all clauses for a financially eligible person who "is entitled to appointment of counsel under the sixth amendment to the constitution" or "faces loss of liberty." 18 U.S.C. § 3006A(a)(1)(H),(I). If the purpose of the statute is to assure that criminal defendants' constitutional right to appointed counsel is protected, then no

33 A-3007-12T2 appointments are needed for corporations . . . . Although authority is scarce, we conclude from context that the CJA does not so provide either.

As a result, the federal courts have uniformly denied indigent

corporations representation under the CJA. In re Grand Jury

Proceedings, 469 F.3d 24, 26 (1st Cir. 2006); Hartsell, supra,

127 F.3d at 350; Rivera, supra, 912 F. Supp. at 638; United

States v. Hoskins, 639 F. Supp. 512, 514 (W.D.N.Y. 1986), aff'd

o.b. 875 F.2d 308 (2d Cir. 1989).

IV.

We note that the legislatures of a number of our sister

states have implicitly limited the right to appointed counsel at

public expense to indigent criminal defendants who are natural

persons. Some have done so by conditioning the appointment to

situations where imprisonment is probable or possible. See

e.g., Ark. Code Ann. § 16-87-213(a)(1)(A), 213(a)(2)(A) (2014)

(setting forth procedure for "any person charged with an offense

punishable by imprisonment" to obtain public defender services);

Conn. Gen. Stat. § 51-289, 51-296 (2014) (appointing the public

defender unless the court states on the record that the sentence

will not involve incarceration); Ga. Code. Ann. § 17-12-23(a)(1)

(2014) (providing for representation in actions where "there is

a possibility that a sentence of imprisonment or probation or a

suspended sentence of imprisonment may be adjudged"); Ind. Code

34 A-3007-12T2 Ann. § 33-40-1-2 (a)(1) (2014) (defining person entitled to

representation by the public defender as one "confined in a

penal facility in Indiana or committed to the department of

correction due to a criminal conviction"); La. Rev. Stat. Ann. §

15:142(A) (2014) (citing the Louisiana constitution, which

requires indigence and charges for an offense punishable by

imprisonment); Mich. Comp. Laws Serv. § 780.983(d) (2014)

(requiring that a defendant both indigent and "prosecuted or

sentenced for a crime for which an individual may be imprisoned

upon conviction"); N.H. Rev. Stat. Ann. § 604-A:1 (making

representation at public expense a "precondition of

imprisonment"); N.Y. County Law § 722-a (2014) (public defenders

are appointed when "a term of imprisonment is authorized upon

conviction thereof"); Ohio Rev. Code Ann. §120.06(A)(1) (2014)

(limiting representation to those "who are charged with the

commission of an offense or act for which the penalty or any

possible adjudication includes the potential loss of liberty");

Utah Code Ann. § 77-32-302(1) (2014) (providing for defense "if

the indigent is under arrest for or charged with a crime in

which there is a substantial probability that the penalty to be

imposed is confinement in either jail or prison"); Va. Code Ann.

§ 19.2-159(A) (2014) (public defender available if defendant is

indigent and "the charge against him . . . may be punishable by

35 A-3007-12T2 death or confinement in the state correctional facility or

jail"); W. Va. Code Ann. § 29-21-2(2) (defining an "eligible

proceeding" for public defender services as one where "criminal

charges [] may result in incarceration") (2014); Wis. Stat. §

977.08(2) (2014) (authorizing the State Public Defender to

assign attorneys to represent indigents in "crime[s] against

life," other felonies, and misdemeanors that are "punishable by

imprisonment").

Other states have defined the class of indigent defendants

eligible for appointed counsel at public expense such that only

natural persons could qualify. See e.g., Alaska Stat. §

18.85.170(4) (2014) (defining indigent person as one who "does

not have sufficient assets, credit, or other means to provide

for payment of an attorney and all of the necessary expense of

representation without depriving the party or the party's

dependents of food, clothing, or shelter"); Or. Rev. Stat. §

135.050(1)(d) (2014) (eligible if "financially unable to retain

adequate representation without substantial hardship in

providing basic economic necessities to the defendant or the

defendant's dependent family"); R.I. Gen. Laws. § 12-15-8

(defining indigent defendants eligible for the public defender

as those who "after payment of necessary expenses for food,

36 A-3007-12T2 shelter and medical care, do[] not have sufficient income or

assets to enable him or her to retain counsel").

In Illinois, "[t]he constitutional right to appointed

counsel is limited to criminal proceedings which result in

actual imprisonment, and the statutory right to counsel is

similarly limited." Chicago v. Pudlo, 462 N.E.2d 494, 498 (Ill.

App. Ct. 1983), cert. denied, 471 U.S. 1066, 105 S. Ct. 2140, 85

L. Ed. 2d 497 (1985). Notably, however, Illinois law also

specifically provides that "[i]f the accused is a dissolved

corporation and is not represented by counsel, the court may, in

the interest of justice, appoint as counsel a licensed attorney

of th[e s]tate." 725 Ill. Comp. Stat. 5/113-3(a) (2014).

V.

We conclude the Legislature never intended that an indigent

corporation be provided with counsel at public expense pursuant

to the PDA. We therefore relieve OPD of any further

representation of defendant in the prosecution of this appeal.

We also reaffirm, however, that because corporations are

entitled to the assistance of counsel under both the United

States Constitution and New Jersey Constitution, because New

Jersey precedent requires the appointment of counsel whenever a

defendant is charged with a crime or likely faces a consequence

of magnitude, and because our Rules of Court specifically

37 A-3007-12T2 provide for the appointment of counsel in such circumstances on

appeal, the Clerk's Office shall work with the vicinage Criminal

Division Manager to designate counsel to represent defendant

hereafter.16

An appropriate order has been entered.

16 We reach this conclusion independently of our court rules which, absent certain limited exceptions, do not permit corporations to appear as self-represented litigants. R. 1:21- 1(c).

38 A-3007-12T2 39 A-3007-12T2 40 A-3007-12T2 41 A-3007-12T2 42 A-3007-12T2