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State v. Fineberg

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HARRIS L. FINEBERG, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-01-00012.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 25, 2010

Before Judges Rodríguez and Reisner.

Defendant Harris L. Fineberg appeals from his conviction, following a jury trial, of fourth degree knowingly engaging in the unauthorized practice of law and creating or reinforcing a false impression that he was licensed to engage in the practice of law, N.J.S.A. 2C:21-22. Defendant moved for Judgment NOV, or in the alternative, a new trial. Judge James Mulvihill imposed a five-year term of probation, with a special condition of a thirty-day suspended sentence to the Middlesex County Adult Correction Center. We affirm.

This is a summary of the evidence presented at trial. Defendant received a speeding ticket and was required to appear in the Woodbridge Municipal Court. Defendant sent a letter to the court on stationery indicating that it was from "H. LESLIE FEINBERG, ESQ., Attorney at Law." The address was 1 Edwards Court, Sicklerville, NJ 03031." The letter stated:

[p]lease be advised that my office represents Harris L. Fineberg in the case of the State v. Harris L. Fineberg, summons #SP3325591. Please grant us a continuance due to a conflict, I will be out of the area. Also please set the court date at the end of May beginning of June. I will be traveling abroad intermittently. Thank you for your consideration.

Woodbridge Municipal Judge Emory Z. Toth testified that on the adjourned trial date, defendant was disruptive by walking in and out of the courtroom and talking. According to Judge Toth, defendant appeared "disheveled" and did not appear as if he were an attorney.

Judge Toth then told defendant to go meet with the prosecutor. Defendant's behavior made Judge Toth suspicious. The judge examined the letter again. He found it unusual that the letter stated both "Esq." and "Attorney at Law" following the name listed on the letterhead. Judge Toth asked defendant where "Sicklerville" was located. Defendant became nervous and agitated. Moreover, the stationery appeared to come "off a computer... like a fake thing off the computer." Judge Toth asked Defendant for a business card. Defendant immediately replied with a non-sequitur, saying that he "does a lot of favors for people, specifically transporting body parts and blood all over the State." Judge Toth adjourned because of his suspicions that defendant was not an attorney. The judge provided the stationery to a Woodbridge Detective Richard Yanak for investigation.

Yanak contacted the State Board of Examiners, which confirmed that defendant was not an attorney and sent a certification verifying that neither defendant nor "H. Leslie Fineberg" was an attorney admitted to practice in New Jersey. Yanak interviewed defendant at the Woodbridge police station. Prior to the interview, Yanak instructed defendant to bring anything that would prove that he was an attorney.

After receiving Miranda*fn1 warnings, defendant admitted that he falsely represented himself as an attorney in court. Defendant explained that he provided the letter to the municipal court to obtain a continuance. Defendant disclosed that he goes by the names "Leslie, Les [and] Harris." Yanak reported his findings to Judge Toth. Defendant was subsequently arrested and indicted.

After the verdict, defendant moved for Judgment NOV. Judge Mulvihil denied the motion, finding that defendant received a "fair trial" and the evidence against him was "overwhelming."

On appeal, defendant contends:

THE CURRENT STATUTE IS UNCONSTITUTIONALLY VAGUE AS APPLIED.

A. Misrepresenting Oneself As An Attorney Is Not 'The Practice Of Law.'

B. Representing Oneself Pro Se Is Not 'Unauthorized.'

AS A MATTER OF LAW, APPELLANT DID NOT ENGAGE IN THE UNAUTHORIZED PRACTICE OF LAW.

A. The Word 'Unauthorized' Is Ambiguous And Cannot Apply To Pro Se Conduct.

B. Appellant's Motion For A Judgment Of Acquittal Should Have Been Granted.

C. Appellant's Motion For JNOV Should Have Been Granted.

IN THE ALTERNATIVE, APPELLANT MUST BE GRANTED A NEW TRIAL BECAUSE HE WAS DEPRIVED OF A FAIR TRIAL BELOW.

A. The Jury Charge Was Impermissibly Narrow.

B. The Jury Was Exposed To Excluded And Highly Prejudicial Evidence.

C. Non-responsive Testimony Inclusive Of Opinion And Legal Conclusions Was Improperly Admitted.

We disagree with all of these contentions.

Defendant contends that N.J.S.A. 2C:21-22 is unconstitutionally vague as applied to his conduct and, alternatively, the term "unauthorized" is ambiguous. He argues that there is no precedent establishing that it is illegal for a pro se to misrepresent himself as an attorney, and therefore, defendant's actions do not constitute the unauthorized "practice of law." Not so.

The relevant statute provides:

a. A person is guilty of a disorderly persons offense if the person knowingly engages in the unauthorized practice of law.

b. A person is guilty of a crime of the fourth degree if the person knowingly engages in the unauthorized practice of law and:

(1) Creates or reinforces a false impression that the person is licensed to engage in the practice of law; (emphasis added) or

(2) Derives a benefit; or

(3) In fact causes injury to another.

c. For the purposes of this section, the phrase "in fact" indicates strict liability. [Ibid. (emphasis added).]

It is obvious to us that defendant's conduct is prohibited by the plain language of the statute.

The Supreme Court has recognized that the "practice of law does not lend itself 'to [a] precise and all-inclusive definition.'" New Jersey State Bar Ass'n v. N. New Jersey Mortgage Assoc., 32 N.J. 430, 437 (1960) (quoting Auerbacher v. Wood, 139 N.J. Eq.. 484, 485 (Ch. Div. 1948). The practice of law is not "limited to the conduct of cases in court but is engaged whenever and wherever legal knowledge, training, skill and ability are required." Stack v. P.G. Garage, Inc., 7 N.J. 118, 121 (1951). Importantly, defining the practice of law generally requires a case-by-case analysis because of the broad scope of the field of law. In re Opinion No. 24 of Comm. on the Unauthorized Practice of Law, 128 N.J. 114, 122 (1992).

The practice of law is a highly regulated area. In order to "practice law" in New Jersey as an attorney, a person must meet the "fitness" standard set forth in Rule 1:25. The Supreme Court established the fitness standard to not only protect prospective clients, but to also assure the "proper, orderly and efficient administration of justice." In re Jackson, 165 N.J. 580, 584 (2000). More to the point, in State v. Rodgers, 308 N.J. Super. 59, 68 (App. Div.), certif. denied, 156 N.J. 385 1998), we found that N.J.S.A. 2C:21-22 was not unconstitutionally vague "as applied."

Further, a presumption of validity attaches to a duly enacted statute. In re C.V.S. Pharmacy Wayne, 116 N.J. 490, 497 (1989), cert. denied, 493 U.S. 1045, 110 S.Ct. 841, 107 L.Ed. 2d 836 (1990). However, the Federal and State Constitutions make it clear that vague laws are unenforceable. U.S. Const. amend. V; N.J. Const. art. I, ¶ 1. The vagueness doctrine is grounded in fairness and "requires that a law be sufficiently clear to apprise an ordinary person of its reach." CVS Pharmacy, supra, 116 N.J. at 500. The doctrine is governed by the principle that "no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." State v. Lashinsky, 81 N.J. 1, 17 (1979).

Here, we reject defendant's argument that misrepresenting himself as an attorney and using false letterhead did not constitute the "practice of law" because case law reflects that the "practice of law" involves legal work done by the defendants for others, not legal work done by defendants for themselves. There is a difference between a non-lawyer appearing pro se and representing oneself as a licensed attorney. Defendant blurs the difference. He would not have been prosecuted for appearing pro se. He was prosecuted for pretending to be a licensed New Jersey attorney. The New Jersey Constitution invests in the Supreme Court the "jurisdiction over the admission to the practice of law and the discipline of persons admitted." N.J. Const. art 6, ¶ 2. This provision has been interpreted as providing courts with the power to "punish for contempt those engaged in the unauthorized practice of law." N.J. State Bar Ass'n v. N. N.J. Mortgage Assoc., 22 N.J. 184, 193 (1956). The Legislature provides courts with additional avenues to punish persons who engage in the unauthorized practice of law by creating a criminal penalty. N.J.S.A. 2C:21-22.

Moreover, the language in N.J.S.A. 2C:21-22 was not intended and has not been narrowly construed as only prohibiting non-lawyers from providing legal services and advice to other persons. As mentioned, the Supreme Court has recognized that regulating the legal field is necessary to assure the "proper, orderly and efficient administration of justice." Jackson, supra, 165 N.J. at 584. Permitting non-attorneys to represent themselves as attorneys is not only unauthorized in light of the Supreme Court's requirements, but it conflicts with the public interest and thwarts the administration of justice.

Rule 1:21-1(a) provides that a person not otherwise qualified to practice law "shall nonetheless be permitted to appear and prosecute or defend an action in any court of this State if the person... is a real party in interest to the action or a guardian of the party." This right of pro se representation, however, does not extend to permitting a person to hold himself out as an attorney.

The standard of review for the legal issues raised on this appeal is de novo. See Manalapan Realty v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995). We owe no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts."

Ibid.; State v. Harris, 181 N.J. 391, 415 (2004).

Applying that standard here, we conclude, after a careful review of the record, that the judge's legal rulings were sound and correct. We reject the vague as applied argument made by defendant.

We also reject defendant's alternative argument that pro se representation cannot be characterized as the "unauthorized" practice of law for purposes of N.J.S.A. 2C:21-22. Once again, that is not what happened here. Defendant was not arrested and indicted for representing himself pro se. Rather, he was charged with representing to the court that he was authorized to practice law in New Jersey and attempting to receive from the municipal court the treatment that is usually accorded to lawyers but not pro se defendants. Pro se representation does not provide lay persons with the right to represent themselves under the guise of an attorney while appearing in court. See R. 1:21-1(a).

Defendant also contends that Judge Mulvihill erred in failing to grant defendant's motion for acquittal because: defendant's conduct was neither "unauthorized" nor the "practice of law" and the record contains insufficient evidence that his conduct constituted "the practice of law" within the meaning and intent of N.J.S.A. 2C:21-22. As discussed above, we hold that defendant's conduct was unauthorized because it involved the practice of law.

Defendant also contends that Judge Mulvihill permitted the jury to interpret the law, a responsibility that is in the province of the court. We disagree.

In reviewing a motion for acquittal based on insufficiency of the evidence, we apply the same standard as the trial court. See State v. Bunch, 180 N.J. 534, 548-49 (2004). In addition, we give no consideration to any evidence produced by the defendant. State v. Reyes, 50 N.J. 454, 458-59 (1967).

Applying the standard here, we are satisfied that the testimony of Judge Toth and Yanak and the demonstrative evidence provided sufficient evidence to allow a reasonable jury to find defendant guilty of a fourth degree offense pursuant to N.J.S.A. 2C:21-22. Thus, there was ample support for the denial of defendant's motion for judgment NOV.

Defendant contends that the jury was tainted by the introduction of defendant's prior acts in the form of Judge Toth's testimony and when physical evidence of those acts (letter) was shown to the jury during the State's summation. Defendant argues that despite the prior similar acts being deemed inadmissible during the N.J.R.E. 404(b) hearing on prejudicial grounds, the jury was exposed to the inadmissible evidence resulting in undue prejudice to defendant. We disagree.

The Supreme Court has recognized that a trial cannot be completely controlled:

[t]he plain fact of the matter is that inadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence. Hence, it is axiomatic that "[n]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error...; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently." [State v. Winter, 96 N.J. 640, 646 (1984) (quoting Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed. 476, 484 (1968)).]

A defendant is entitled to a fair trial, but not a perfect one. State v. Feaster, 156 N.J. 1, 84 (1998), cert. denied sub nom., Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). On appeal, we must determine whether an error was so prejudicial that it clearly had the capacity to produce an unjust result denying the defendant the right to a fair trial. See State v. Vandeweaghe, 177 N.J. 229, 232 (2003).

When reviewing the effectiveness of curative instructions, we should provide deference to the trial court. Winter, supra, 96 N.J. at 647. The decision whether a limiting instruction may cure inadmissible evidence or requires the more severe response of mistrial is "one that is peculiarly within the competence of the trial judge, who has a feel for the case." Id. at 646-47.

Here, although the jury was shown the letter evidencing defendant's subsequent similar act, such inadmissible evidence cannot be characterized as so prejudicial as to deprive defendant of a fair trial. See Vandeweaghe, supra, 177 N.J. at 232. The prosecutor immediately realized her mistake. The judge immediately gave the jury a curative instruction to disregard the exhibit and reiterated that arguments made during summation cannot are not evidence.

Defendant contends that Judge Mulvihill should have stricken Judge Toth's testimony that defendant may have committed a similar offense in another municipal court as non-responsive and because Judge Toth offered his opinion that defendant was guilty. Defendant argues that non-responsive testimony is irrelevant, misleading and confuses issues; and because the jury may have considered Judge Toth as an expert in the law, his opinion of whether defendant was guilty had a greater prejudicial effect. We disagree.

When assessing whether the defendant received a fair trial, the reviewing court must consider the impact of the error on the defendant's ability to present his defense, and not just excuse the error based on the strength of the State's proofs. State v. Jenewicz, 193 N.J. 440, 473 (2008). However, the curability of error by cautionary instruction is uniquely within the competence of the trial judge. State v. Demon, 347 N.J. Super. 457, 464 (App. Div.), certif. denied, 174 N.J. 41 (2002). The trial court's handling of the issue was appropriate. Therefore, any error was harmless.

Affirmed.


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