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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, notwithstanding the fact that you had the file, I'm going to approximate for a year, is that a fair approximation?

[Appellant]: Approximately, I believe, yes.

THE COURT: All right. You didn't . . . advise me that the first day, that the matter was called for trial. . . . [W]e brought 100 jurors in here to try that case. The county paid them five bucks a day. They were undoubtedly [put] to a great deal of inconvenience, and then you advise me that you have a conflict of interest, and cannot proceed with the case. . . . I find that to be as a result of either your having noticed it and not disclosed the conflict at an earlier time, or that you were derelict in not noticing it because you had the pretrial discovery from whenever you got the file. . . . And, that caused a substantial amount of inconvenience to the court . . . .

. . . It's not meant to be punishment. It's meant to be a prophylactic measure to insure that whatever little mistakes, as you wish to characterize, or whatever it may be, don't slip through the cracks again. . . . I require you to focus, and to disclose to the court if there is any conflict of interest, or potential conflict of interest, so it can be dealt with.

. . . [M]y whole goal was to . . . give me confidence, frankly, for myself, and for my colleagues in Cumberland County . . . criminal bench, that this will not happen again . . . .

. . . I've already indicated to you that there [were] some 100 jurors . . . assembled for the jur[ies] last week. There were probably eight, I think, that went to Judge Fisher. They . . . came in on Tuesday for this trial, specifically, most of those jurors, eight of them got assigned to another case, eventually. . . . I mean people missed work because of that. If we'd have known on Monday, Mr. Zerella, they wouldn't have had to come in. . . .

The prosecutor's list was . . . delivered to you . . . on April 12th. I sent, frankly, to you, a request for a trial memo, I didn't get one, disclosing issues. You didn't comply with that.

. . . I do find that you inadequately reviewed the pretrial discovery so as to disclose a conflict of interest or otherwise fail to disclose that conflict of interest; that you had a written list, at least as of April 12th, either did not review it, which I suspect to be the case, perhaps through either sloppiness, or just confidence that you'd be able to resolve the matter with a plea and it wouldn't be necessary.

. . . [I]f you had told us on Thursday, the following day, which was a Friday, actually, if you'd told us on Monday, when the case was here, you were sitting here with your client and the prosecutor when the case was actually scheduled for trial, but as we all know in this county, we appear on Monday, we set the scheduling for picking the jury. The juries are told to come in on Tuesday. We could have stopped that inconvenience to thos[e] jurors.

. . . [B]ecause you didn't bring it to the court's attention, and as a result of that, 100 people came here. A hundred people missed being with their families, with their jobs, whatever. So, . . . I've made my finding, that you didn't pay sufficient attention to this file, for whatever reason.

Appellant filed a motion for reconsideration, which was heard on September 7, 2007, at which time he was represented by counsel. After argument, the court declined to change its decision. The court explained that the sanction was imposed pursuant to Rule 1:2-4(a), emphasizing that the sanction was not intended to punish appellant and the court did not find appellant in contempt. The court then reduced its decision to the September 28, 2007 order that is the subject of this appeal.

Rule 1:2-4(a) provides, in part, as follows:

If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party on the call of a calendar, on the return of a motion, at a pretrial conference, settlement conference, or any other proceeding scheduled by the court, or on the day of trial, or if an application is made for an adjournment, the court may order any one or more of the following: (a) the payment by the delinquent attorney . . . in such amount as the court shall fix, to the Clerk of the Court . . . or (d) such other action as it deems appropriate. [emphasis added.]

This court rule permits the payment of costs when the inconvenience that results from the adjournment is caused by the carelessness of a party, without the necessity of a showing of bad faith or other malicious design. State v. Audette, 201 N.J. Super. 410, 414 (App. Div. 1985); see also Rabboh v. Lamattina, 312 N.J. Super. 487, 493 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999); Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 387-88 (App. Div. 1990).

Here, the court's decision to impose sanctions pursuant to Rule 1:2-4 was not an abuse of discretion. As the court observed, even if appellant did not notice Sergeant McMahon's name on the evidence receipt when he first reviewed the discovery in 2006, appellant should have taken note of the witness list when he received it the Thursday before the Monday trial date. Had he done so, and notified the court, even as late as the Monday trial date, it would not have been necessary for the parties, their witnesses, and the jurors to appear for trial the next day. Appellant substantially admitted his carelessness, and under these circumstances, sanctions under the rule are permitted.

We also conclude that the $500 monetary sanction was reasonable, given the inconvenience, not only to the jurors, but to appellant's client, the State and the court. Further, the requirement that appellant submit a list of his potential conflicts as a result of his representation of Sergeant McMahon was also within the court's discretion pursuant to subsection (d) of Rule 1:2-4(a).

Appellant argues that the court should not have imposed sanctions because the adjournment was not only necessitated by his conflict, but also because (1) at the time the court determined to postpone the case, there was still a question as to whether Holland's co-defendant would testify, and (2) the assistant prosecutor had personal problems that could have prevented the case from going forward. These arguments are misplaced. The only reason the court postponed the case was appellant's conflict. Appellant agreed that he could select a jury, but he preferred to determine whether the co-defendant would testify before he made his opening. From the record, it appears that contact with the co-defendant's attorney was imminent, and that issue could have been promptly resolved. As to the assistant prosecutor's family problems, the record indicates that she was prepared to proceed, regardless of those problems.



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