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State v. A.L.

Superior Court of New Jersey, Appellate Division

May 18, 2015

STATE OF NEW JERSEY, Plaintiff-Respondent,
A.L. [1], Defendant

Argued: April 28, 2015.

Approved for Publication May 18, 2015.

Page 366

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-12-0770.

Remi L. Spencer argued the cause for appellant M.B. ( Spencer & Associates, LLC, attorneys; Ms. Spencer, on the briefs).

Matthew Murphy, Assistant Prosecutor, argued the cause for respondent State of New Jersey ( Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Murphy, of counsel and on the briefs).

Jenny M. Hsu, Deputy Attorney General, argued the cause for amicus curiae Attorney General ( John J. Hoffman, Acting Attorney General, attorney; Ms. Hsu, of counsel and on the brief).

Matthew Astore, Deputy Public Defender, argued the cause for amicus curiae Public Defender ( Joseph E. Krakora, Public Defender, attorney; Mr. Astore, of counsel and on the brief).

Before Judges REISNER, HAAS and Currier. The opinion of the court was delivered by HAAS, J.A.D.


Page 367

[440 N.J.Super. 403] HAAS, J.A.D.

In this case of first impression, we determine the procedures that should be used to review the indigency status of a defendant who has been convicted of a crime and who requests the services of the Office of the Public Defender (OPD) to file an appeal on her behalf. During the pendency of defendant's appeal from her conviction, the State filed a motion with the trial court, rather than this court, seeking to prohibit the OPD from continuing to represent defendant in the appeal based upon its assertion that defendant was not indigent. We conclude that, pursuant to the clear language of Rule 2:9-1(a), this motion should have been filed with the Appellate Division in the first instance.


In order to place the factual issues raised in this matter in their proper context, we begin with a review of the law in this area.

The Sixth Amendment to the United States Constitution provides that " [i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his [or her] defen[s]e." " The Amendment guarantees the right of a criminal defendant to retain counsel of his [or her] choice, to the effective assistance of counsel, and if indigent and facing the potential loss of 'life or liberty,' to have counsel appointed at the government's expense." State v. Western World, Inc., __ N.J.Super. __, 440 N.J.Super. 175, 111 A.3d 1113, (App.Div. 2015) (slip op. at 11) (citations omitted).

As our Supreme Court recently explained in In re Custodian of Records, Criminal Division Manager, 214 N.J. 147, 158, 68 A.3d 308 (2013), New Jersey " has a long history of publicly funded representation of indigent defendants." (citations omitted). In 1967, the Legislature enacted the Public Defender Act, which created the OPD. N.J.S.A. 2A:158A-1 to -25. " The [OPD] represents all indigent defendants charged with an indictable offense. N.J.S.A. 2A:158A-5. The statute defines an indigent defendant as [440 N.J.Super. 404] one 'who does not have the present financial ability to secure competent legal representation.' N.J.S.A. 2A:158A-2." In re Custodian of Records, supra, 214 N.J. at 159, 68 A.3d 308.

The OPD provides legal services to indigent defendants both at trial and on appeal. Western World, supra, (slip op. at 11). At the trial level, judges are required to advise a defendant of his or her right to representation by the OPD at the time of the defendant's first appearance before the court. R. 3:4-2(b)(3). " [I]f the defendant asserts indigence," the judge must " assure that the defendant completes the appropriate application form for [OPD] services and files it with the [C]riminal [D]ivision [M]anager's office[.]" R. 3:4-2(b)(5).

" To determine whether a defendant qualifies for a public defender, a court staff member collects information about a defendant's financial status. That information is then collected on the third page of an intake form, known as the Uniform Defendant Intake Report (UDIR)." In re Custodian of Records, supra, 214 N.J. at 151, 68 A.3d 308. The third page of the UDIR is known as " the 5A Form." Id. at 160, 68 A.3d 308. On this form, " the defendant provides employment and financial information and indicates whether he or she requests representation by" the OPD.

Page 368

Ibid. The 5A Form does not require a defendant to provide any financial information concerning his or her spouse or any other immediate family members.

" The defendant must certify the accuracy of the financial data set forth on the form." Id. at 151, 68 A.3d 308. Prior to the Court's May 14, 2013 decision in In re Custodian of Records, supra, the information the defendant provided in a 5A Form was " prohibited from use in grand jury proceedings and at trial, even for the purposes of cross-examination[,]" but could " be used at sentencing unless the defendant object[ed]." Id. at 161, 68 A.3d 308.

The Criminal Division Manager's office is charged with the responsibility of reviewing a defendant's 5A Form and assessing the defendant's claim of indigency. R. 3:8-3. In making the [440 N.J.Super. 405] indigency determination, the Manager considers the factors set forth in N.J.S.A. 2A:158A-14. In pertinent part, this statute states:

Eligibility for the services of the Office of the Public Defender shall be determined on the basis of the need of the defendant. Need shall be measured according to:
a. The financial ability of the defendant to engage and compensate competent private counsel;
b. The current employment, salary and income of the defendant including prospects for continued employment if admitted to bail;
c. The liquid assets of the defendant, including all real and personal property and bank accounts;
d. The ability of the defendant to make bail and the source of bail posted;
e. Where appropriate the willingness and ability of the defendant's immediate family, friends or employer to assist the defendant in meeting defense costs;
f. Where appropriate an assessment of the probable and reasonable costs of providing a private defense, based upon the status of the defendant, the nature and extent of the charges and the likely issues;
g. Where appropriate, the ability of the defendant to demonstrate convincingly that he has consulted at least three private attorneys, none of whom would accept the case for a fee within his ability to pay; and
h. The ability of the defendant to provide all other necessary expenses of representation.
[ N.J.S.A. 2A:158A-14.]

If the Manager " determines that a defendant seeking the services of [the OPD] is indigent, he or she is referred to the [OPD] no later than the pre-arraignment conference. R. 3:8-3, 3:9-1(a)." In re Custodian of Records, supra, 214 N.J. at 160 n.2, 68 A.3d 308.

If the criminal proceeding results in a conviction, either following a trial or a plea, the defendant completes a new 5A Form that becomes part of the presentence report that is relied upon by the judge, the prosecutor, and the public defender at the sentencing hearing. Id. at 157, 68 A.3d 308. At sentencing, the judge must " advise the defendant of the right to appeal and, if the defendant is indigent, of the right to appeal as an indigent." R. 3:21-4(h). The 5A Form provided with the presentence report then becomes the defendant's application for OPD services on appeal. The Criminal Division Manager reviews the 5A Form and advises the OPD whether the defendant is indigent. If so, the OPD undertakes [440 N.J.Super. 406] the defendant's representation and files a notice of appeal to the Appellate Division, or provides representation in the event of an appeal filed by the State.

Page 369

" A determination to grant or deny the services of the [OPD] shall be subject to final review by the Assignment Judge or his [or her] designated judge." N.J.S.A. 2A:158A-15.1. In cases where the Criminal Division Manager determines that the defendant is not indigent, review by the Assignment Judge will usually occur before the OPD becomes involved in the case. However, if " a determination of eligibility cannot be made before the time when the first services are to be rendered, or if an initial determination is found to be erroneous," the OPD shall represent the defendant on a provisional basis. N.J.S.A. 2A:158A-14. If the defendant is subsequently determined to be ineligible, " the defendant shall . . . be obliged to engage his [or her] own counsel and to reimburse the [OPD] for the cost of the services rendered to that time." Ibid.

In addition, " [t]he reasonable value of the services rendered to a defendant" by the OPD " may in all cases be a lien on any and all property to which the defendant shall have or acquire an interest." N.J.S.A. 2A:158A-17(a). The OPD must " effectuate such lien whenever the reasonable value of the services rendered to a defendant appears to exceed $150 . . . ." Ibid. In its amicus brief, the OPD represented that liens are filed in every case where it provides legal services to an indigent client.

In In re Custodian of Records, the Court dealt with the situation where the State believed a defendant who had been found eligible for OPD services prior to his arraignment was not truly indigent. Supra, 214 N.J. at 153-54, 68 A.3d 308. The defendant had been indicted on a number of offenses, including first-degree money laundering, N.J.S.A. 2C:21-25; first-degree racketeering, N.J.S.A. 2C:41-2; and third-degree promoting gambling, N.J.S.A. 2C:37-2. Id. at 153, 68 A.3d 308. During its investigation of these offenses, the State " had obtained documents . . . that suggested [the] defendant owned substantial assets." Id. at 154, 68 A.3d 308.

[440 N.J.Super. 407] The State issued a trial subpoena seeking to obtain a copy of the 5A Form used to determine defendant's indigency for the trial proceedings. Ibid. " [T]he State proffered that it sought the documents to investigate whether [the] defendant fraudulently represented his assets to obtain public defender representation" and, if so, " to prosecute him for fraud[.]" Id. at 155, 157, 68 A.3d 308. The State represented that it would not use the information in defendant's 5A Form " as evidence in his current criminal matter[.]" Id. at 157, 68 A.3d 308. In addition, the State asserted that it needed the form ...

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