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Conley v. State

January 22, 2008

KEVIN CONLEY, INDIVIDUALLY AND AS A REPRESENTATIVE FOR HIS BIOLOGICAL MOTHER, JEAN CONLEY, AND HIS BIOLOGICAL FATHER, ROBERT CONLEY, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, JON CORZINE, GOVERNOR, STATE OF NEW JERSEY, ANNE MILGRAM, NEW JERSEY ATTORNEY GENERAL, COLONEL RICK FUENTES, SUPERINTENDENT, NEW JERSEY STATE POLICE, GEORGE W. HAYMAN, COMMISSIONER, NEW JERSEY DEPARTMENT OF CORRECTIONS, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3024-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 8, 2007

Before Judges Lisa and Simonelli.

Plaintiff appeals from the order of July 19, 2006, dismissing this matter for failure to state a claim, pursuant to Rule 4:6-2(e). We affirm.

I.

A jury convicted plaintiff of first degree murder, possession of a weapon for unlawful purpose, burglary, first degree aggravated sexual assault, and first degree felony murder. Plaintiff appealed his conviction and sentence. We remanded for reconsideration of plaintiff's sentence. State v. Conley, No. A-6120-96T4 (App. Div. March 9, 2000) (slip op. at 29), certif. denied, 165 N.J. 490 (2000). On March 28, 2000, the trial judge re-sentenced plaintiff to life imprisonment with a thirty-year period of parole ineligibility on the first degree murder conviction; a consecutive eighteen years imprisonment with an eight-year period of parole ineligibility on the first degree aggravated sexual assault conviction; and a concurrent eight years imprisonment on the burglary conviction. The trial judge merged the possession of a weapon and felony murder conviction for purposes of sentencing into the first degree murder conviction. Based upon his conviction for aggravated sexual assault, plaintiff provided a DNA sample pursuant to the DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17 to -20.28 (the DNA Act).

Plaintiff filed the complaint in this matter "individually and as a representative" for his biological mother and father. On behalf of his parents, plaintiff alleges, among other things, that because his DNA is an exact match to half of the DNA he shares in common with his father and half of the DNA he shares with his mother, and because his DNA profile has been placed into the DNA databank, his parents have lost the protection against a warrantless and unreasonable search and seizure; their rights to privacy and equal protection have been violated; and they have been deprived of just compensation for the taking of their private genetic property for public use. On his own behalf, plaintiff alleges the DNA Act violates his Fifth Amendment*fn1 and State constitutional rights by compelling him to provide his fingerprints on the DNA Databank Specimen Submission form, thereby forcing him to authenticate the chain of custody of the DNA profile and become a witness against himself.

The State moved to dismiss the complaint for failure to state a claim upon which relief can be granted. R. 4:6-2(e). Judge Paul Koenig granted the motion. This appeal followed.

II.

A motion to dismiss a complaint for failure to state a cause of action must be denied if, giving the plaintiff the benefit of all of his or her allegations and all favorable inferences, a cause of action has been made out. R. 4:6-2(e); Burg v. State, 147 N.J. Super. 316, 319-20 (App. Div.), certif. denied, 75 N.J. 11 (1977). The "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citing Rieder v. State, 221 N.J. Super. 547, 552 (App. Div. 1987)). The reviewing court must search the complaint "'in depth and with liberality'" to see whether the basis for a cause of action may be found even in an "'obscure statement of a claim,'" ibid. (quoting DiCristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957)), but it cannot "consider anything other than whether the complaint states a cognizable cause of action." Rieder, supra, 221 N.J. Super. at 552 (citing P&J Auto Body v. Miller, 72 N.J. Super. 207, 211 (App. Div. 1962)). A dismissal is mandated where the factual allegations are insufficient to support a claim for which relief can be granted. Camden County Energy Recovery Assocs. v. N.J. Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd, 170 N.J. 246 (2001). With these standards in mind, we address plaintiff's contention that Judge Koenig erred in granting the State's motion to dismiss for failure to state a claim.

The judge dismissed the complaint as to plaintiff's parents, finding plaintiff could not represent them. Rule 1:21-1(a) provides, in relevant part, that no person shall practice law in this State unless that person is an attorney holding a plenary license. . . .

A person not qualifying to practice pursuant to the first paragraph of this rule shall nonetheless be permitted to appear and prosecute or defend an action in any court of this State if the person (1) is a real party in interest to the action or the guardian of the party[.]

A person who is not an attorney cannot conduct legal proceedings in court on behalf of others. Kasharian v. Wilentz, 93 N.J. Super. 479, 482 (App. ...


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