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In re Zerella

July 10, 2008


On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 06-04-338.

Per curiam.


Submitted June 24, 2008

Before Judges Skillman and Winkelstein.

Appellant, Henry Zerella, is an attorney at law in New Jersey. He appeals from a September 28, 2007 order requiring him to pay a sanction of $500 and, within thirty days from the date of the order, to notify the court of potential conflicts relating to his representation of criminal defendants in Cumberland County Superior Court involving the City of Vineland Police Department. We affirm.

In 2006, appellant was assigned as pool counsel by the Office of the Public Defender to represent defendant Jukawana Holland in the matter of State v. Holland, Indictment no. 06-04-338. Also in 2006, he was provided with the State's discovery, which included the name of Sergeant John McMahon, the evidence officer for the City of Vineland Police Department, on an evidence receipt for the transporting of the CDS related to the charges against Holland to the New Jersey State Police laboratory. Sergeant McMahon is one of appellant's clients.

Trial of the Holland case was scheduled for April 16, 2007. The week before the trial, the court sent both the prosecutor and appellant a letter asking for a trial memo. On Thursday, April 12, 2007, both the court and appellant received the prosecutor's trial memo. Attached to the trial memo was a witness list that included McMahon's name as a potential chain-of-custody witness. Appellant did not submit a memo, nor did he review the State's memo when he received it on Thursday. Apparently, he glanced through it the following Sunday, although he did not "scrutinize the witness list."

On the day of the trial call, Monday, April 16, 2007, the parties appeared in court to report if the case was ready to be tried. If it was, the trial would begin the following day. Appellant did not request a postponement at that time, nor did he inform the court of his potential conflict with Sergeant McMahon. The assistant prosecutor sought an adjournment for personal reasons, but that request was denied and the case was to begin the next day.

On Tuesday, approximately one hundred jurors were available for jury selection. Before jury selection, appellant informed the court that his client's co-defendant, whose case had been severed, may be available as a witness. Appellant sought additional time to determine if the co-defendant would testify. When the court indicated that it intended to proceed with the trial, appellant said that he could pick a jury, but he did not want to open before knowing whether the co-defendant would testify.

Appellant then told the court about his conflict involving Sergeant McMahon. He acknowledged receiving the evidence receipt and he conceded that he had not reviewed it. He also admitted that he had received the witness list the previous Thursday, but he did not "review it in detail," and he did not realize, apparently until Monday night, that McMahon would be a witness.

After appellant determined that his client would not waive cross-examination of McMahon, the court postponed the trial. The court further ordered appellant to prepare a certification listing each defendant he represented in Cumberland County where the offenses occurred in the City of Vineland, so that the court would be aware of any additional conflicts appellant had involving Sergeant McMahon. The court ordered appellant to provide the certification by the following Friday, and to show cause at that time why the court should not impose monetary sanctions against him for delaying the trial.

Appellant and the assistant prosecutor appeared in court on Friday, April 20, 2007. The judge imposed a $500 sanction against appellant, and modified the court order to give him thirty days to provide the list of potential conflicts. On several occasions during the April 20 proceeding, the court set forth the reasons for its actions. In part, the court stated the following:

I find that you were derelict in your responsibilities in connection with the Holland matter; that on the eve of trial, you tell me that there is a witness . . . with whom you have a conflict of interest. That . . . either two things happened, either you did not review your pretrial discovery in such a fashion as to disclose the involvement of one of your personal clients in that case, ...

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