This matter cannot be decided without the development of an appropriate trial-like record. Plaintiffs’ motion for an order in aid of litigant’s rights, Rule 1:10-3, is therefore denied without prejudice to plaintiffs filing an action in Superior Court and seeking to create a record there. We reach no conclusion on the merits of plaintiffs’ allegations regarding the constitutionality of the Civil Union Act, N.J.S.A. 37:1-28 to -36.

[Lewis v. Harris, Order, SUPREME COURT OF NEW JERSEY, M-949 September Term 2009, 058389]

For more information, see my prior Blog Post: Although a fundamental right to same-sex marriage does not exist in N.J., the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under N.J.’s State Constitution.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

The pretrial intervention program (PTI), governed by N.J.S.A. 2C:43-12 to -22 and Rule 3:28, is a diversionary program that permits those charged with criminal conduct “to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior.” State v. Nwobu, 139 N.J. 236, 240 (1995). It is designed “to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system. Eligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change such that society can have confidence that they will not engage in future criminality.” State v. Watkins, 193 N.J. 507, 513 (2008).

Diversion into a PTI program is a “quintessentially prosecutorial function,” and the prosecutor has broad discretion to decide whether a defendant should be admitted into PTI. State v. Wallace, 146 N.J. 576, 582 (1996). However, that discretion, while broad, is not unlimited. The exercise of that discretion must be guided by the purposes of the program and the criteria set forth in the governing statute and court rule for admission into PTI. N.J.S.A. 2C:43-12(e); R. 3:28; Pressler, Current N.J. Court Rules, Guidelines to R. 3:28 (2010).

The statute requires that the prosecutors and program directors consider the following criteria when determining whether a particular defendant should be allowed to participate in the PTI program:

(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may be related to the applicant’s crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant’s crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
(7) The needs and interests of the victim and society;
(8) The extent to which the applicant’s crime constitutes part of a continuing pattern of anti-social behavior;
(9) The applicant’s record of criminal and penal violations and the extent to which he may present a substantial danger to others;
(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant’s criminal act;
(12) The history of the use of physical violence toward others;
(13) Any involvement of the applicant with organized crime;
(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;
(15) Whether or not the applicant’s involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;
(16) Whether or not the applicant’s participation in pretrial intervention will adversely affect the prosecution of codefendants; and
(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.

[N.J.S.A. 2C:43-12(e).]

The court will overturn a prosecutor’s decision denying PTI where it finds a “‘patent and gross abuse of discretion.’” State v. Watkins, supra, 193 N.J. at 520 (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007)). The defendant bears the burden of showing by clear and convincing evidence that this standard has been met. Ibid. For a prosecutor’s decision denying PTI to represent a “patent and gross abuse of discretion,” the decision must have “‘gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.’” Ibid. (quoting State v. Wallace, supra, 146 N.J. at 582-83). That standard is met where the decision “‘(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment.’” State v. Negran, 178 N.J. 73, 83 (2003) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

The Prosecutor’s Office may not attempted to condition defendant’s participation in PTI upon her pleading guilty. Guideline 4 governing the program provides that:

Enrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilt. Enrollment of defendants who maintain their innocence should be permitted unless the defendant’s attitude would render pretrial intervention ineffective.

[Pressler, supra, Guideline 4 at 1067.]

The official comment to Guideline 4 explains that “[n]either admission of guilt nor acknowledgment of responsibility is required. Steps to bar participation solely on such grounds would be an unwarranted discrimination.” Id. at 1068.

Nonetheless, the official comment to Guideline 4 also recognizes that defendants must assume some responsibility for their conduct in order for the program to be effective, explaining:

[M]any guilty defendants blame their behavior on society, family, friends or circumstance, and avoid recognition of the extent of their own role and responsibility. While such an attitude continues, it is unlikely that behavioral change can occur as a result of short-term rehabilitative work. An understanding and acceptance of responsibility for behavior achieved through counseling, can and often does, result in the beginnings of the defendant’s ability to control his/her acts and is an indication that rehabilitation may, in large measure, have been achieved.

[Ibid.]

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A complaint brought under the New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and a criminal proceeding brought for the same conduct “are separate and distinct matters.” State v. Brown, 394 N.J. Super. 492, 504 (App. Div. 2007). There, the court observed that “[t]he legislative history demonstrates that the Act ‘anticipates and provides for simultaneous or subsequent criminal proceedings’ unimpacted by the other, except for a contempt proceeding.” Id. at 505 (quoting Cannel, New Jersey Criminal Code Annotated (Gann 2007), comment on N.J.S.A. 2C:25-29 (2007); N.J.S.A. 2C:25-29).

The court stated in Brown:

As the Prevention of Domestic Violence Act demonstrates, the purpose of an action in the Family Part, designed to protect an individual victim, is quite different than a criminal case in which the State prosecutes a defendant on behalf of the public interest. The Act was enacted “to assure the victims of domestic violence the maximum protection from abuse the law can provide.” N.J.S.A. 2C:25-18. The Legislature found that “it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and longterm civil and criminal remedies and sanctions[.]” Ibid. The Act further states that “[a] victim shall not be prohibited from applying for, and a court shall not be prohibited from issuing, temporary restraints pursuant to this act because the victim has charged any person with commission of a criminal act.” N.J.S.A. 2C:25-26(f).

[Brown, supra, 394 N.J. Super. at 504.]

It is inappropriate, when restraints are civilly required, for a Family Part judge to rely on restraints issued in a parallel criminal proceeding. This is particularly the case because the need to protect the victim-spouse may outlive the termination of the criminal action.

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N.J.S.A. 2C:14-2c provides that “[a]n actor is guilty of sexual assault if he commits an act of sexual penetration with another person” under several circumstances, including when “[t]he actor uses physical force or coercion, but the victim does not sustain severe personal injury.” N.J.S.A. 2C:14-2c(1).

To establish physical force for the purposes of N.J.S.A. 2C:14-2, the plaintiff does not have to prove force in addition to “that necessary for penetration so long as the penetration was accomplished ‘in the absence of what a reasonable person would believe to be affirmative and freely-given permission.’” State v. Velasquez, 391 N.J. Super. 291, 319 (App. Div. 2007) (quoting State in the Interest of M.T.S., 129 N.J. 422, 444 (1992)).

N.J.S.A. 2C:14-3b provides that “[a]n actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2c.”

“Sexual contact” is defined as “an intentional touching by the . . . actor, either directly or through clothing, of the victim’s . . . intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.” N.J.S.A. 2C:14-1.

Neither the sexual assault statute nor the criminal sexual contact statute specifies the mental state that must be demonstrated in order to establish the defendant’s criminal intent.

N.J.S.A. 2C:2-2c(3) establishes the principle that criminal statutes that do not designate a specific culpability requirement should be construed as requiring knowing conduct.

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 . . . .

[N.J.S.A. 2C:2-2b(2).]

A defendant’s conduct in engaging in nonconsensual sexual intercourse was knowing, regardless of his view that his religion permitted him to act as he did.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

A party has standing when it has a “sufficient stake and real adverseness with respect to the subject matter of the litigation, and a substantial likelihood that some harm will fall upon it in the event of an unfavorable decision.” In re N.J. Bd. of Pub. Utils., 200 N.J. Super. 544, 556 (App. Div. 1985) (citing N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Comm’n, 82 N.J. 57, 67 (1980)). Possessing a financial interest in the outcome of the litigation is ordinarily sufficient to confer standing. Strulowitz v. Provident Life & Cas. Ins. Co., 357 N.J. Super. 454, 459 (App. Div.), certif. denied, 177 N.J. 220 (2003).

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Rule 5:3-5(b) provides in pertinent part:

During the period of the representation, an attorney shall not take or hold a security interest, mortgage, or other lien on the client’s property interests to assure payment of the fee. This Rule shall not, however, prohibit an attorney from taking a security interest in the property of a former client after the conclusion of the matter for which the attorney was retained, provided the requirements of R.P.C. 1.8(a) shall have been satisfied.

[R. 5:3-5(b).]

The comments to Rule 5:3-5(b) explain, “It is of course clear that not only must the representation have first terminated but also that the matter for which the attorney was retained must also have been concluded.” Pressler, Current N.J. Court Rules, comment 3 on R. 5:3-5(b) (2010).

Rule 5:3-5(b) “prohibits the attorney from taking a security interest in the client’s property interests, including, of course, marital assets, to secure payment of the fee . . . .” Pressler, Current N.J. Court Rules, comment 3 on R. 5:3-5(b) (2010). A violation of the rule occurs if an attorney takes a security interest, mortgage, or other lien on a client’s property to assure payment of a fee during the period of representation. R. 5:3-5(b). An attorney’s representation of a client “shall terminate upon the expiration of the time for appeal from the final judgment or order entered therein.” R. 1:11-3. The timely filing of a motion for reconsideration of an order tolls the time for filing an appeal. R. 2:4-3(e); Easthampton Ctr., LLC v. Planning Bd. of Easthampton, 354 N.J. Super. 171, 186-87 (App. Div. 2002).

In addition to the prohibition of Rule 5:3-5(b) on the taking of a mortgage from a client in a Family Part action during the period of representation, R.P.C. 1.8(a) provides:

A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms in which the lawyer acquires the interests are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel of the client’s choice concerning the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

[R.P.C. 1.8(a).]

Subsection (i) more specifically addresses acquisition of a lien:

A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may
(1) acquire a lien granted by law to secure the lawyer’s fee or expenses, [and]
(2) contract with a client for a reasonable contingent fee in a civil case.

[R.P.C. 1.8(i).]

Neither Rule 5:3-5(b) nor R.P.C. 1.8(a) require disqualification of an attorney where a violation occurs.

Regarding disqualification as a remedy, New Jersey courts have consistently held that disqualification is a “harsh discretionary remedy which must be used sparingly.” Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 572 (App. Div. 2000).

In determining whether to disqualify counsel, the court must balance “‘the need to maintain the highest standards of the profession’ against ‘a client’s right to freely choose his counsel.’” Ibid. (quoting Dewey, supra, 109 N.J. at 218). The Supreme Court has emphasized that “only in extraordinary cases should a client’s right to counsel of his or her choice outweigh the need to maintain the highest standards of the profession.” Dewey, supra, 109 N.J. at 220.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Where a party, represented by counsel, insisted on addressing the court, and then made voluntary disclosures, these facts do not implicate a violation of the privilege against selfincrimination. Attor v. Attor, 384 N.J. Super. 154, 165 (App. Div. 2006); see also State v. Kobrin Sec., Inc., 213 N.J. Super. 161, 169 (App. Div. 1986) (stating “[t]he privilege against self-incrimination may be waived by a party in a civil action who voluntarily testifies in the action upon the merits”), rev’d on other grounds, 111 N.J. 307 (1988).

Moreover, a trial court does not have an obligation to warn a witness that his or her testimony may be self-incriminating: that obligation rests with defendant’s counsel. All Modes Transp., Inc. v. Hecksteden, 389 N.J. Super. 462, 470 (App. Div. 2006).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

To admit expert testimony under N.J.R.E. 702, the matter must concern a subject that is beyond the understanding of an average juror, and the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

N.J.R.E. 404(b) provides:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. [However,] [s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[Ibid.]

In State v. Cofield, 127 N.J. 328, 338 (1992), the Court adopted a four-part test to determine the admissibility of such evidence.

The Cofield test requires that:

1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Williams, 190 N.J. 114, 122 (2007).]

Additionally,

even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: “relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.”

[State v. Lykes, 192 N.J. 519, 534-35 (2007) (quoting N.J.R.E. 403).]

In order to minimize the “inherent prejudice in the admission of other-crimes evidence,” the judge must “sanitize the evidence when appropriate” before it is presented to the jury. Barden, supra, 195 N.J. at 390. After the admission of such evidence, the judge should clearly instruct the jury on the prohibited and permitted uses for which it may consider the evidence, and repeat the instructions at the conclusion of the case. State v. Blakney, 189 N.J. 88, 93 (2006).

The analytic paradigm detailed above has also been applied in instances where the other bad conduct evidence did not amount to a crime, or, to use the language of the Rule’s predecessor, a “civil wrong.” ^[1] See State v. Covell, 157 N.J. 554, 564-71 (1999) (applying the analysis to defendant’s statement that he liked “‘young girls’” in a prosecution for luring); State v. Nance, 148 N.J. 376, 388-89 (1997) (applying the analysis to a series of non-criminal “bad conduct” events between defendant and his girlfriend); State v. Koskovich, 168 N.J. 448, 483 (2001) (subjecting the defendant’s writings, “[a]lthough not overtly criminal in nature,” to the Cofield analysis”).

The evil the Rule seeks to avoid is that “[i]f other crime evidence were to be admitted, the jury might think of a defendant as a bad person in general and convict . . . .” Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404 (2010) (citations omitted); see also Model Jury Charges (Criminal), “Proof of Uncharged Crimes, Wrongs, or Acts,” (June 2007) (advising jury “not [to] use th[e] evidence to decide that the defendant has a tendency to commit crimes or that (he/she) is a bad person”).

However, res gestae evidence of “[t]he defendant’s actions ‘serves to paint a complete picture of the relevant criminal transaction’ and therefore [is] admissible.” State v. Long, 173 N.J. 138, 156 (2002) (quoting State v. Martini, 131 N.J. 176, 242 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995)).

[T]o be relevant, the other-crimes evidence must bear on a subject that is at issue at the trial, for example, an element of the offense or some other factor such as motive, opportunity, intent, or plan. In determining whether 404(b) evidence bears on a material issue, the Court should consider whether the matter was projected by the defense as arguable before trial, raised by the defense at trial, or was one that the defense refused to concede. Further, the other-crimes evidence must be necessary for the proof of the disputed element. Indeed, in assessing the fourth prong, courts should consider whether the matter can be proved adequately by other evidence.

[State v. P.S., ___ N.J. ___ (2010) (slip op. at 26-27).]

“‘The likelihood of prejudice is acute when the proffered evidence is proof of a defendant’s uncharged misconduct.’” Barden, supra, 195 N.J. at 394 (quoting State v. Stevens, 115 N.J. 289, 302 (1989)).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

1. See Evid. R. 55 (“[E]vidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, . . . such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.”).

When the grant of summary judgment is under review, the Appellate Divison must apply the same standard as the trial court to the same motion record. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995).

Rule 4:46-2(c) provides that a court should grant summary judgment when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” Therefore, the court must first decide whether there is a genuine issue of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

“An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences there from favoring the non-moving party, would require submission of the issue to the trier of fact.” R. 4:46-2(c); Brill, supra, 142 N.J. at 540. Second, if there is no genuine issue of fact, we must decide whether the party seeking summary judgment is entitled to it as a matter of law. Boylan, supra, 307 N.J. Super. at 169-70.

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