On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 01-06-1201-I.
Before Judges King, Axelrad and Holston, Jr.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 20, 2004
Defendant Michael Ray appeals from the denial of his motion to quash the grand jury subpoena served upon his counsel, Louis Barbone. The subpoena compels Barbone's testimony before a grand jury regarding communications between him and his client relative to bogus requests for the postponements of defendant's court appearances and sentencing on theft by deception charges. The State intends to seek indictments for bail jumping, criminal contempt, forgery, and filing false statements. The judge concluded that the three-part test established by In re Kozlov, 79 N.J. 232, 243-44 (1979), to pierce the attorney-client privilege, does not apply where there is a prima facie showing of the crime or fraud exception, N.J.S.A. 2A:84A-20(2)(a), and, alternatively, that even if the Kozlov test were applicable, the State could not secure the"same evidence" from any less intrusive source. We affirm substantially for the reasons set forth by Judge Garofolo in his cogent letter opinion of November 17, 2003.
Defendant was indicted for third-degree theft by deception, N.J.S.A. 2C:20-4, for depositing a $6,500.00 check he knew to be fraudulent at the Resorts Casino in Atlantic City. In August 2001, defendant retained Barbone to represent him on the charge. Defendant appeared with counsel for arraignment on September 18, 2001 and was ordered to reappear on October 16, 2001 for a status conference.
Defense counsel received and forwarded to the court, a"Doctor's Excuse/Notice" from the"Horry Neurological Group, P.A." in Myrtle Beach, South Carolina signed by"R.J. Mallek, M.D." stating that defendant could not travel until November 7, 2001 due to injuries he sustained in a car accident. Barbone also forwarded a South Carolina Department of Public Safety Accident Report dated October 5. The court rescheduled defendant's status conference to November 13.
On November 9, defense counsel received and forwarded to the court another doctor's excuse from Dr. Mallek stating defendant could not travel until November 23. On December 10, counsel faxed another excuse/notice from Dr. Mallek stating that as defendant could not travel in a car with his leg bent for extended amounts of time, he would be unable to drive from South Carolina, there were no airline seats available and, thus, defendant would not be present for his scheduled court appearance on December 11. Furthermore, the earliest he would be able to drive would be January 15, 2002. The court adjourned the matter to January 22, 2002.
Defendant appeared on January 22, 2002 and pled guilty to fourth-degree theft by deception in exchange for a recommended sentence of 365-days imprisonment, a $500.000 fine, and restitution of $6,500.00. Sentencing was scheduled for February 22.
Around February 12, defense counsel received and forwarded to the court an unsigned"Doctors Chart Note" from Dr. Mallek, stating that defendant had undergone surgery, required additional surgery due to complications, and would be unable to appear in court. Sentencing was rescheduled for April 19. Defense counsel thereafter submitted to the court two more"Doctor's Chart Notes" from Dr. Mallek dated April 12, 2002 and April 29, 2002, stating that defendant could not undergo long-distance travel until June 21, due to an infection that had not healed properly after the surgery. The court again rescheduled sentencing to June 21.
On June 17, a report indicating defendant would not be able to appear for his sentencing hearing due to his medical condition was faxed directly to Judge Garofolo's chambers, purportedly from Dr. Mallek. The"Doctor's Chart Notes" stated that it was"very difficult" to put a"date specific time period" for defendant's recovery so"that he can be released from care." The note stated the follow-up care would require an additional forty-five to sixty days before defendant could travel, and Dr. Mallek would"be more than happy to report back... at the 45 day mark to give an update."
Over the next six months, as a result of receiving various medical documents from Dr. Mallek, the court rescheduled the defendant's sentencing from each of the following dates: August 16, 2002; October 10; November 22; and January 10, 2003. When defendant did not appear for sentencing on January 10, 2003, Judge Garofolo issued a bench warrant for his arrest. Defense counsel subsequently learned that defendant had been arrested by federal authorities in Miami, Florida on March 21, 2003 on federal fraud charges, and informed the court.
At the judge's direction, the State submitted a detailed certification as to steps it took to independently verify that Dr. Mallek was not a licensed South Carolina physician. There was no record, past or present, of either"Dr. Mallek" or the"Horry Neurological Group" with the South Carolina Medical Examiner's Office, the Horry County Business Licensing Association, the Myrtle Beach Chamber of Commerce, or the Horry Tax Office. The address used was that of a Subway Restaurant and attached gas station. The fax machine used was from a business in Myrtle Beach partly owned by defendant. An investigation of the October 5, 2001 accident report indicated that defendant, although alleging serious injuries from an automobile accident, had never filed a claim for personal injury or property damage against the driver who rear-ended him.
In order to support the charges against defendant for bail jumping, contempt, forgery and filing false documents, the State sought evidence that would prove defendant was responsible for preparing and filing the fraudulent medical documents used to secure continuances. The State certified that the one potential witness, defendant's business ...