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State v. Schubert

Decided: July 17, 1989.


On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Deighan and Baime. The opinion of the court was delivered by Baime, J.A.D.


This appeal presents novel questions concerning the parameters of the attorney-client privilege. At issue is whether an attorney may disclose information received from his client to law enforcement authorities where he reasonably believes such disclosure will serve his client's interests.

Following a jury trial, defendant David Paul Schubert was found guilty of aggravated arson (N.J.S.A. 2C:17-1a) and was sentenced to a custodial term of seven years. In addition, defendant was assessed a penalty of $30 payable to the Violent Crimes Compensation Board.

On appeal, defendant asserts that (1) his attorney-client privilege was violated resulting in the discovery of incriminating evidence which was presented by the State at trial, (2) the court committed plain error by admitting evidence of other crimes, (3) the police unlawfully searched the trunk of his automobile and (4) he was denied the effective assistance of counsel. In a pro se supplemental brief filed without leave of court on the date this appeal was submitted to us, defendant raises the following additional arguments: (1) he was denied the right of confrontation, (2) the evidence was insufficient to establish his guilt, (3) the prosecutor's prejudicial comments denied him a fair trial,

and (4) his attorney failed to present witnesses whose testimony would have tended to exculpate him. We are entirely satisfied from our thorough review of the record that defendant was fairly convicted. We affirm.


The salient facts can be summarized briefly. In September 1984, Robert and Rita Victor purchased a two-family house at 1225 Inwood Terrace in Fort Lee. At the time title was conveyed to the Victors, defendant and his wife were tenants occupying the second-floor apartment. Since the lease the Schuberts had with the prior landlord was about to expire, the Victors offered them a new term but at a substantially higher rent. Apparently, this development enraged defendant who some three weeks later assaulted Mr. Victor in the latter's apartment. During the course of this altercation, defendant allegedly threatened to kill the Victors. Although the police were summoned, defendant left the scene prior to their arrival. The Victors did not consider the threats as serious and they took no further action.

Several days later, the Victors gave defendant a notice requesting permission to inspect his apartment so that it could be rented to other tenants. Defendant refused to accept the notice and threatened to kill any prospective tenant who came upon the premises. Again, the Victors ignored defendant's threats.

Shortly after this second incident, Mr. Victor discovered that his basement was totally flooded. When questioned about the damage, defendant exclaimed that he had forced "a new plastic sheet down the toilet." Mr. Victor thereafter called a plumber who found a plastic sheet "the size of a picnic tablecloth" in the pipe. The plumber also discovered a blockage further down which had been caused by deposits of kitty litter. Immediately after this incident, the Victors discovered that the air had been let out of all four of their automobile tires.

In August, the Victors commenced a summary dispossess action against the Schuberts. This litigation culminated in a settlement in which the Schuberts were given time to move from the premises in return for their promise to pay rent in the interim. The agreement also provided that defendant and his wife were to give 15 days notice before moving.

Despite these requirements, the Schuberts left the premises in September without advising the Victors of their intention to move and without paying the agreed upon rent. When the Victors attempted to follow the moving van in order to obtain the rent owed to them, defendant's wife forced them off the road. She then scratched the Victor's car with her keys and threatened that they would "never get new tenants" to occupy the apartment.

On July 12, 1986, the Victors' home was seriously damaged by fire. Their neighbors reported the fire shortly after 9:00 p.m. immediately following what appeared to them to be a massive explosion. Arson Investigator James Walker of the Hackensack Fire Department responded to the scene and noted that the fire had begun in the front of the house and that a great deal of carbon had run from the top steps to the roof area. The presence of this amount of carbon indicated to the witness that an "accelerant" had been used. Investigator Walker also noticed an odor of gasoline in the area which emanated from a melted plastic container standing at the top of the stairs. The container was later tested positive for the ...

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