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In re Frank

Decided: September 28, 1994.

IN RE REQUEST OF EVELYN BERMAN FRANK FOR PUBLIC DEFENDER REPRESENTATION.


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

Before Judges Michels, Stern and Keefe.

Michels

[276 NJSuper Page 271] The opinion of the court was delivered by

MICHELS, P.J.A.D.

Defendant Evelyn Berman Frank appeals from (1) an order of the Law Division that denied her application for Public Defender representation in connection with her appeal from a judgment of conviction and order for commitment of the Law Division which revoked her probation and committed her to the custody of the Commissioner of the Department of Corrections (Commissioner) for three years in a matter entitled State v. Evelyn Berman Frank, A4921-93T1, and (2) from an order denying her motion for reconsideration.

By way of background, on May 30, 1989, a state grand jury returned a twenty-five count indictment against defendant and others, including General Marine Transport Corporation, a closely-held corporation controlled by the Frank family. The first count of the indictment charged defendant and others with conspiracy to unlawfully release, discharge and abandon hazardous waste and other toxic substances into various waters in and around the waters surrounding New York and New Jersey and to unlawfully tamper with corporate records. The remaining counts of the indictment charged defendant and others with substantive crimes including record tampering.

On July 27, 1990, following plea negotiations, defendant pleaded guilty to the fourteenth count of the indictment which charged her with purposely and knowingly causing the unlawful release and abandonment of sewage sludge containing toxic Pollutants and hazardous waste, namely biologically infectious and pathogenic bacteria, viruses and other organisms which pose a present and potential threat to human health, living organisms and the environment, into the waters of Newark Bay at or near the Passaic Valley Sewerage Commission sewage treatment facility, a crime of the second degree, in violation of N.J.S.A. 2C:17-2a(2), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:2-7. As part of the plea agreement, the State recommended that this second degree crime be treated as a third degree crime for sentencing purposes. The State agreed that it would not dispute defendant's medical condition, particularly

in view of her age; that it would not appeal any ruling by the trial court that the presumption of incarceration under N.J.S.A. 2C:44-1(d) was overcome; that it would dismiss the remaining twenty-four counts of the indictment; and that in lieu of fines and restitutions, General Marine Transport Corporation would pay $1,000,000, plus interest over an agreed period of time. The plea agreement also provided that defendant would be permanently barred from any direct or indirect business participation by herself or through any other companies involved in the waste disposal industry.

On November 26, 1990, the trial court, in accordance with the plea agreement, sentenced defendant to a five-year probationary term. The following conditions of probation were imposed:

The defendant cannot leave New York City except to report to the Probation Office in New Jersey; she cannot leave the State of New York without permission of the Probation Officer and the Court; she cannot have any contact, directly or indirectly with any existing businesses, corporations, entities, now or in the future; she must never again work for or keep in contact with any Frank family-owned operations in Bayonne, Staten Island or elsewhere; she is to have no relations, directly or indirectly with barges, tugboats or other vessels associated with her former businesses; there is to be no access to telephones, shortwave radios, or other types of communications with barges, tugboats or vessels and she is to perform 500 hours of community service per year as directed by the Probation Department. In essence defendant is forcefully retired.

In addition, the trial court assessed a $30 Violent Crimes Compensation Board penalty against defendant, and then dismissed the remaining counts of the indictment.

Defendant appealed, challenging two of the conditions imposed upon her probationary term: (1) the travel limitation prohibiting her from leaving New York State without permission of the Probation Officer and the trial court, except for reporting to the probation office in New Jersey, and (2) the restriction preventing her from working in any kind of business involving waste disposal and in all Frank family-owned businesses of any kind whatsoever.

On December 22, 1992, in an unpublished opinion in State v. Frank, A-2461-90T5, we affirmed the judgment of the conviction and order of commitment, holding, in part, that the challenged

conditions were reasonably related to defendant's rehabilitation and enforcement of the plea bargain and that they were not unduly restrictive of her liberty.

On or about April 22, 1994, the State charged defendant with violating the conditions of her probation in that she left the State of New York without the court's Permission and was in the State of Florida on several dates in 1993 and 1994 and failed to divest herself of her stock interest in the Frank family corporations. Defendant was represented at the probation violation hearing by the Public Defender, without objection from the State. On May 6, 1994, at the Conclusion of the hearing, defendant was found guilty of violating the terms of her probation. The trial court revoked defendant's probation and committed her to the custody of the Commissioner for three years.

Defendant appealed and requested the services of the Public Defender to represent her. Although the record is not entirely clear as to what transpired with respect to defendant's request for Public Defender representation, the Deputy Public Defender moved on behalf of defendant in the trial court for a stay of the sentence pending appeal. The trial court denied the motion, but stayed execution of the sentence for a short period to enable defendant to get her affairs in ...


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