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In the Matter of Subpoena Duces Tecum On Custodian of

May 31, 2011

IN THE MATTER OF SUBPOENA DUCES TECUM ON CUSTODIAN OF RECORDS, CRIMINAL DIVISION MANAGER, MORRIS COUNTY.


On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 10-05-00057-S.

The opinion of the court was delivered by: Skillman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 22, 2011

Before Judges Parrillo, Yannotti and Skillman.

The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).

The issue presented by this appeal is whether a defendant's application for representation by the Public Defender and the factual materials submitted in support of that application are protected by the attorney-client privilege. We conclude that under the circumstances of this case, where defendant's application for representation by the Public Defender and supporting materials may contain information the State could use against him in the prosecution of the charges for which he sought such representation, defendant may invoke the attorney-client privilege.

I.

A State grand jury indicted defendant and thirty-three other persons for racketeering, in violation of N.J.S.A. 2C:41-2(c) and (d); falsifying records, in violation of N.J.S.A. 2C:21-4; failure to file tax returns, in violation of N.J.S.A. 54:52-8; failure to pay gross income taxes, in violation of N.J.S.A. 54:52-9; money laundering, in violation of N.J.S.A. 2C:21-25, involving property valued in excess of $500,000; and numerous other offenses.

Defendant applied for representation by the Public Defender and was interviewed in connection with that application by an employee of the Superior Court, Criminal Division Manager's Office, Morris County. Defendant's application was subsequently approved by that Office as provided by N.J.S.A. 2A:158A-15.1 and Rule 3:8-3. See State v. Blacknall, 335 N.J. Super. 52, 57 (Law Div. 2000).

Thereafter, the Attorney General's Office served a trial subpoena upon the custodian of records in the Criminal Division Manager's Office for the production of:

All applications [including but not limited to 5A forms], writings, financial investigation reports and/or notes, mortgage records, financial documents reflecting assets or indebtedness, promissory notes or written obligations/guarantees for the provision of services of the Public Defender, as well as any other document, writing or item compiled pursuant to the inquiry made under the authority of N.J.S.A. 2A:158A-15.1, as well as the consideration of the requirements in N.J.S.A. 2A:158A-14, attributable to defendant Thomas [sic]

Cataldo, in connection with State Grand Jury Indictment 10-05-00057-S.

The trial court issued an order quashing this subpoena. In its statement of reasons supporting ...


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