Prosecutorial Patent and Gross Abuse of Discretion

Introduction

On June 18, 2015, the Supreme Court of New Jersey published the final chapter of the Pretrial Intervention (PTI) travails of the Bergen County Prosecutor's Office in its case against Carlstadt Mayor William Roseman and Lori Lewin, his ex-wife. I blogged about this ordeal previously after the trial court compelled Roseman's and Lewin's admission into PTI in 2012. Unhappy with this result, however, the State appealed, and the issue went to the New Jersey Supreme Court. This week the Supreme Court decided the Bergen County Prosecutor Office's denial of the PTI application by Roseman and Lewin was a patent and gross abuse of discretion.

Narrative

The co-defendants were married between 1992 and 2000, and during this time Roseman was elected Mayor of Carlstadt. Lewin received dental, medical, and prescription benefits under the Carlstadt insurance plan. After the divorce, Lewin was supposed to be removed from the plan. But this detail was overlooked because of an administrative error by a payroll clerk.

Between 2000 and 2007, approximately 100 Explanations of Benefits (EOBs) addressed to Roseman were sent to the marital residence where Lewin resided after their divorce. Thirteen EOBs were for services provided to Lewin because her health care providers had kept the information about her coverage under the Carlstadt plan.

In 2007, Carlstadt changed its insurance plan. Lewin's coverage came to light, and Roseman took immediate steps to disclose this and remove her from the plan. Lewin resubmitted the claims, and personally paid for any time-barred claims.

Law and Politics

A former councilmember snitched, inviting an investigation by the Bergen County Prosecutor's Office. The government indicted the divorced couple in July 2009 on one count each of third-degree conspiracy, N.J.S.A. 2C:5-2; third-degree theft by deception, N.J.S.A. 2C:20-4; and second-degree official misconduct, N.J.S.A. 2C:30-2a.

The sentencing exposure for second-degree official misconduct is between 5 years and 10 years New Jersey State Prison. Additionally, the charge entails a presumption of incarceration, even for a first-time offender. And the sentencing exposure for third-degree theft by deception and third-degree conspiracy is between 3 years and 5 years New Jersey State Prison. These terms are in addition to other fines and penalties. Additionally, a first-time offender charged with a second degree crime is not necessarily eligible for PTI.

New Jersey Law defines theft by deception as purposely obtaining property of another by deception. The material element "deception" is defined as:
  • Purposely creating or reinforcing a false impression, including false impressions as to law, value, intention or other state of mind, and including, but not limited to, a false impression about soliciting or collecting funds for a charitable purpose; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
  • Purposely preventing another from acquiring information that would affect his judgment of a transaction; or
  • Purposely failing to correct a false impression the deceiver previously created or reinforced, or the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
N.J.S.A. 2C:20-4. In defining the material element of purposefulness, New Jersey law provides,
A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.
N.J.S.A. 2c:2-2 (emphasis added). New Jersey law defines official misconduct as,
A public servant purposely obtaining a benefit for himself or another or injuring or depriving another of a benefit by committing an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.
N.J.S.A. 2C:30-2a. In defining the material element of knowledge, New Jersey law provides,
A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result.
N.J.S.A. 2c:2-2 (emphasis added).

The Bergen County Prosecutor's Office obtained the consent of the Attorney General to allow Roseman into PTI, but only if Roseman would agree to resign and be subject to a lifetime disqualification from office. To sweeten the deal, the prosecutor would also have dismissed the indictment against Lewin if Roseman was admitted into PTI under those conditions. Roseman and Lewin ultimately rejected this deal.

Confirmation Bias

Confirmation bias is the tendency to search for, interpret, or recall information in a way that confirms one's beliefs or hypotheses. It also manifests itself when people interpret ambiguous evidence as supporting their existing position.

To indict these people under these statutes demonstrates a completely unrealistic understanding of marriage, divorce, and life in general by the Bergen County Prosecutor's Office. According to the Supreme Court opinion, it appears the insurance policy was not the most important priority for either Roseman or Lewin. Apathy, however, is not criminal.

Roseman had reported the divorce to the town clerk. Additionally, he alerted the town when the coverage came to light in 2007. Furthermore, Lewin was covered by her employer during the relevant times. She took care of having her employer's insurance pay for the treatment that Carlstadt's policy had covered, and she paid for any claims that her were not covered.

Question Authority

  • Does this sound like a case of theft?
  • Did these people act "deceptively" as defined by the statute?
  • Did they act "deceptively" from the perspective of common sense?
  • Does it sound like a case of "official misconduct?"
  • Is it what the lawmakers intended when this statute was enacted?

Criticize Authority

It is repulsive when government officials manipulate the criminal justice system for political ends. The only way to make sense of this prosecution, and the refusal to admit these individuals into PTI, is "confirmation bias." The Bergen County Prosecutor's Office viewed these individuals and the surrounding facts in the worst possible light. And it is all too common among those who have the duty to execute the law in the criminal justice system.

Silver Linings

The Supreme Court's decision brings an end to this ordeal for Roseman and Lewin. There is an additional silver lining. Justice Solomon, the author of the Supreme Court's opinion, previously served as a United States Attorney and was the Camden County Prosecutor during earlier chapters in his career. This "poetic justice," however, does not compensate for the years the Bergen County Prosecutor's Office held these charges over Roseman and Lewin.

Pusillanimity is the New Black

Recently I blogged about bullying. And today I saw this on Twitter:


When I first heard about anti-bullying, the literal term and the concept reeked of ambiguity. Additionally, it appeared to me that many people were jumping on yet another bandwagon.

I said previously, and it is worth repeating, I am not pro-bullying. Without intending to engage in the self-aggrandizing practice of quoting oneself--does that seem self-serving and insincere?--as a criminal and juvenile defense attorney, I'm the one who defends the one who won the fight.

Please read Elie Mystal's ATL op-ed on this. Are these unintended consequences? Perhaps, but they certainly were not unforeseeable.

Take Yer Anti-Bullying Campaign . . . And Shove It!

I could say I have had mixed feelings about anti-bullying. But honestly, it's been a mixture of about 98 parts anti-anti-bullying (similar to the anti-anti- spirit of the word antidisestablishmentarianism) and two parts pro-anti-bullying. That's not to say, of course, that I am pro-bullying. Bottom line, I'm a criminal and juvenile defense attorney. I'm the one who defends the one who won the fight--bully or erstwhile wuss. Wait, was that insensitive?


Impersonating a Police Officer, N.J.S.A. 2C:28-8(b)

Hi-Nella Police Department
Viewable at instagram.com
© Michael A. Smolensky, Esq.

Narrative

On October 10, 2013, Jackson police arrested and filed charges against a New Jersey motorist for Impersonating a Law Enforcement Officer, as reported by the Ocean Signal.

According to the press, the charge stems from an October 5, 2013, car stop involving the motorist.

The motorist, as reported by the Ocean Signal, identified himself as allegedly working for the NJ Attorney General’s Office.

The motorist also said he was allegedly working undercover on narcotics investigations with the Division of Criminal Justice, according to the news.

As reported by the news, a police investigation discovered evidence to contradict this.

Impersonating a Law Enforcement Officer,
N.J.S.A. 2C:28-8(b)

Under New Jersey law, a person commits a fourth degree crime if he:
  • falsely pretends to hold a position
  • of any organization or association of law enforcement officers
  • as an
    • officer or
    • member or
    • employee or
    • agent
  • with purpose to
    • induce another to submit to the pretended official authority or
    • otherwise to act in reliance upon that pretense.

Sentencing Exposure

  • Fines: Up to $10,000.00
  • State Prison: Up to 18 months
  • Victims of Crime Compensation Assessment (VCCA): $50.00 (or $100)
  • Safe Neighborhood Services Fund Assessment: $75
  • Law Enforcement Officer Training & Equipment Fund: $30
  • Probation: 1 to 5 years, conditioned on county jail up to 364 days
  • Suspended Sentence: Up to 5 years
  • Additional Penalties:
    • Community service
    • Court Costs

NJ Criminal Attorney Michael A. Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding crimes involving impersonation. Call Now—(856) 812-0321.

Mental Illness and Criminal Justice

Cape May Lighthouse
Cape May Point, New Jersey
© Michael A. Smolensky, Esq.
The October 2013 ABA Journal reports 61% of premeditated murderers have a history of mood or psychotic disorders. Based on research by Robert Hanlon, 34% of impulsive murderers have this history. Thus, premeditated murderers are about twice as likely as impulsive murderers to have a history of mood or psychotic disorders.

Hanlon's research appears to indicate 59% of impulsive murderers are developmentally disabled, and have cognitive and intellectual impairments. By comparison, 36% of premeditated murderers have this history. Therefore, impulsive murderers are about twice as likely as premeditated murderers to have a history of cognitive and intellectual impairments.

Substance abuse and intoxication also play a role. According to the ABA Journal, the research shows 93% of impulsive murderers have a history of alcohol or drug abuse, were intoxicated, or both, at the time of their crime. By comparison, 76% of premeditated murderers met these criteria. Therefore, impulsive murderers are more likely than premeditated murderers to have a history of substance abuse, or were actually under the influence of a substance, at the time of their crime.

This research does not reflect the percentage of all people with these histories. It reflects the percentage of people who have committed these crimes with these histories. It follows, of course, that a percentage of those who committed homicide did not have these histories. Therefore, these histories are neither sufficient nor necessary to predict who will commit homicide.

For additional Gavel Report coverage of mental illness, please click here (Elyn Saks: A Tale of Mental Illness—From The Inside), and here (Ruby Wax: What's So Funny About Mental Illness?).

New Jersey Criminal Defense Attorney Michael A. Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding crimes. Call Now—(856) 812-0321.

“You better have my bread.” 
Possession of Defaced Firearm, N.J.S.A. 2C:39-3d

Narrative

Jersey City police charged David King with, among other things, Possession of Defaced Firearm, according to nj.com.

The 35-year-old Bayonne man allegedly went into a woman's home on May 19, 2013, as reported on the news site.

Stating, “You better have my bread,” he indicated he had an alleged weapon in his waistband, according to the media report.

While fleeing the scene, the news indicates he pointed an alleged 9mm loaded handgun at a police officer.

Possession of Defaced Firearm, N.J.S.A. 2c:39-3d

New Jersey law prohibits the possession of a defaced firearm. Providing the elements of this offense, the NJ Code of Criminal Justice states in pertinent part:
Defaced Firearms
Any person who
knowingly
has in his possession
any firearm which has been defaced,
except an antique firearm or an antique handgun,
is guilty of a crime of the fourth degree.

Sentencing Exposure

  • Fines: Up to $10,000.00
  • State Prison: Up to 18 months
  • Victims of Crime Compensation Assessment (VCCA): $50.00 (or $100)
  • Safe Neighborhood Services Fund Assessment: $75
  • Law Enforcement Officer Training & Equipment Fund: $30
  • Probation: 1 to 5 years, conditioned on county jail up to 364 days
  • Suspended Sentence: Up to 5 years
  • Additional Penalties:
    • Community service
    • Court Costs
New Jersey Weapons Attorney Michael A. Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding weapon crimes. Call Now—(856) 812-0321.

Distracted Driving: Nationally and in New Jersey

New Jersey Ave.
Woodbury, NJ
© 2013 Michael A. Smolensky, Esq.

What is “distracted driving?”

“Distracted driving” may be defined as multi-tasking while operating a moving motor vehicle. These other tasks divert a driver's attention from the road.

What are examples of distracted driving?

Common examples of distractions that take a driver's attention away from the road may include but are not limited to:
  • dialing, answering, talking or listening to another person, retrieving or leaving voicemail, or otherwise using a telephone,
  • composing, sending, reading, retrieving, looking at or listening to, or otherwise engaging with electronic messages, email, and apps either manually or with speech-to-text devices,
  • listening to music or audiobooks, and
  • operating a GPS unit.
This is a non-exhaustive list.

Is distracted driving serious?

According to the National Highway Traffic Safety Administration (NHTSA), distraction-related crashes result in more than 3,000 people killed in the U.S.A. each year. Additionally, these crashes resulted in nearly half a million people injured during the same time span. Rich Bradley, “Texting & Driving,” SJFirst 5 (May/June 2013). Therefore, based on these statistics distracted driving poses a serious danger.

How seriously do Americans take distracted driving?

Among respondents in a 2012 survey by AAA Foundation for Traffic Safety (AAAFTS), 88.5% said drivers talking on cell phones somewhat or very seriously threaten their safety. Despite the apparent widespread awareness of these dangers, however, results of the the same survey indicated:
  • 68.9% of licensed drivers talked on a cell phone while driving at least once within the previous 30 days
  • 31.9% said they had done so fairly often or regularly during the same 30 day time span
Ibid.

What is New Jersey doing about distracted driving?

According to a NJ State Police report, “driver inattention” in 2011 contributed to 178 traffic fatalities in New Jersey. Ibid.

In addition to increasing the penalties for distracted driving, “Nikki's Law” is pending in the State House. This legislation is named in memory of Nikki Kellenyi, an 18-year old National Honor Society for Business student and champion equestrian from Washington Township, New Jersey. N.J. Senate Transportation Committee Statement to Senate Bill 2406 (May 20, 2013).

“Nikki's Law” will require the Commissioner of Transportation to erect signs notifying motorists that the operator of a moving motor vehicle is prohibited from text messaging and sending electronic messages via wireless telephone or electronic communication device. “Texting While Driving: Signage bill clears state committee,” SJFirst 7 (July/August 2013).

New Jersey Municipal Court Attorney Michael A. Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding driving while distracted. Call Now—(856) 812-0321.

New Jersey Distracted Driving Penalty Hike

Finns Point National Cemetery
Pennsville, Salem County, NJ
©2013 Michael A. Smolensky, Esq.

Do increased fines yield greater safety?

On Thursday, June 27, 2013, New Jersey Gov. Chris Christie signed legislation hiking penalties for texting and phoning without a hands-free device while driving. This amends N.J.S.A. 39:4-97.3.

When will the new Distracted Driving penalties go into effect?

The new law should go into effect in 13 months, on July 1, 2014.

To whom does the Distracted Driving law apply? Is anyone excluded?

This applies to the use of wireless telephones and electronic communication devices while driving. But the law excludes amateur radio (“ham radio”) equipment, and citizen's band (“C.B.”) radios used by commercial operators or authorized emergency vehicles. Depending on the circumstances other exclusions may apply.
What are the penalties under the amended NJ Distracted Driving law?
First Offense: minimum $200, up to $400 fine
Second Offense: minimum $400, up to $600 fine
Subsequent Offenses: minimum $600, up to $800 fine, up to 90 day license suspension, and three motor vehicle penalty points

How will the Distracted Driving proceeds be distributed in New Jersey?

The county and municipality will receive 50% of the fine collected, divided equally. The State Treasurer will allocate the remaining 50% to MVC for a public education program about distracted driving.

NJ Traffic Ticket Attorney Michael A. Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding distracted driving. Call Now—(856) 812-0321.

Ruby Wax On Mental Illness

What's So Funny About Mental Illness?




Thought Provocation

Tasso In The Madhouse
Eugène Delacroix
[Public domain],
via Wikimedia Commons
  • What ratio of people suffer from some form of Mental Illness?

  • What can prevent a baby from distinguishing right from wrong?

  • Which brain lobe enables vision?

  • Which brain lobe enables hearing?

  • Does illness in every organ induce sympathy, except the brain?

  • How can you foster dendrite growth? Would you want to? Why?

Please view this post featuring Elyn Saks for her TEDTalk about mental illness.

How Do New Jersey Courts Decide Who To Summon For Jury Duty?

Cumberland County Courthouse
60 W. Broad St.
Bridgeton, NJ 08302

Photograph by Tim Kiser
(Self-photographed)
CC-BY-SA-2.5
via Wikimedia Commons

Who Is Responsible For Summoning Jurors?

The Assignment Judge of the vicinage bears the responsibility to summon jurors.

Superior Courts in New Jersey have jurisdiction over defined geographical areas.

These areas are called vicinages.

Eleven New Jersey vicinages coincide with the county where the courthouse stands. For example, the boundaries of Vicinage 4 coincide with the borders of Camden County.

Four vicinages, however, comprise more than one county. For example, Vicinage 15 includes Gloucester County, Cumberland County, and Salem County.

One judge in each vicinage bears the designation "Assignment Judge" ("A.J."). The A.J.'s authority extends throughout the vicinage.

The A.J. oversees the administration of summoning jurors.

How Does An Assignment Judge Decide Who To Summon For Jury Duty?

The Assignment Judge administers a process that is public and random.
Previously I described how New Jersey courts compile juror source lists. The A.J. administers the drawing of names from the juror source list before each Superior Court session.
The names drawn from the juror source list will be summoned either for grand jury or petit jury service.

The Assignment Judge must specify:
  • how many panels of grand and petit jurors should be drawn,
  • how many names should be drawn for each panel, and
  • how the lists of names should be prepared.

When circumstances require additional grand or petit jury panels, an A.J. must provide the additional panels from the juror source list.
Drawing names and assigning individuals to panels must be public and random.

What Information About Citizens Is Collected?

The Assignment Judge gathers information about each juror's identity.
The resulting list must consist of each person's:
  • name,
  • address, and
  • occupation, if available.

Are Tax Dollars Spent On An Efficient Summoning Process?

New Jersey courts embrace modern technology for efficient administration of randomly selecting jurors and assigning them to panels.
If modern technology is used for greater efficiency, the Assignment Judge must maintain the integrity of the courts.

To maintain the integrity of the judiciary the Assignment Judge must:
  1. specify with particularity the method of random selection in his instructions, and
  2. make available upon request for public inspection the specification of the method and any programs and procedures used to implement the method, including any computer programs.

New Jersey Trial Attorney, Michael Smolensky, Esquire, knows how to protect his clients. Based on trial experience, which includes selecting juries, Mr. Smolensky would like to help you.

Call Now—(856) 812-0321.

New Jersey Juror Summons, Questionnaire, and Penalties

Salem County Courthouse
92 Market Street
Salem, New Jersey 08079
Previously I blogged about the New Jersey Juror Questionnaire. That post, and a post about The Six Requirements for Jury Duty in New Jersey, describe:
  • the court's authority to summon jurors and mail a questionnaire,
  • examples of questions one may expect to be asked, and
  • the legal basis for the questions.

A prospective juror must not ignore either the summons or the questionnaire.

Failure to respond to the questionnaire, failure to appear for jury service, or refusal to serve, will subject a person to a fine of up to $500, or punishment for contempt of court.

The only defense for an incompliant citizen is to appear in court with a reasonable excuse. A judge will determine whether the excuse is objectively reasonable.

This means New Jersey citizens are expected to cooperate with the courts. An individual who believes he should be exempt is expected to communicate his reasons to the court. Cooperation allows the courts to hear the reasons for an exemption request, and to decide accordingly.

Criminal Defense Attorney Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the right to trial in New Jersey.

Call Now—(856) 812-0321.