Submitted April 5, 2017
appeal from the Superior Court of New Jersey, Law Division,
Monmouth County, Indictment No. 13-01-0208.
E. Krakora, Public Defender, attorney for appellant (Richard
Sparaco, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County Prosecutor,
attorney for respondent (Paul H. Heinzel, Assistant
Prosecutor, of counsel and on the brief; Lisa Sarnoff
Gochman, Legal Assistant, on the brief).
Judges Fuentes, Simonelli and Gooden Brown.
appeal illustrates how a trial judge denied a defendant his
right to counsel by failing to enforce the procedural
mechanism established by the Legislature and the Supreme
Court to determine if a defendant qualifies for
representation by the Office of the Public Defender. The
judge compounded his error by misapplying State v.
King, 210 N.J. 2 (2012), to find defendant was capable
of representing himself in this criminal jury trial. Under
these circumstances, our only recourse is to reverse
defendant's conviction and remand this matter for a new
PUBLIC DEFENDER APPLICATION
January 28, 2013, a Monmouth County grand jury indicted
defendant John C. Van Ness on three counts of third degree
theft by deception, N.J.S.A. 2C:20-4 (counts one, five, and
nine); three counts of fourth degree passing a check knowing
it will not be honored, N.J.S.A. 2C:21-5 (counts two, six,
and ten); three counts of third degree forgery, N.J.S.A.
2C:21-1a(2) (counts three, seven, and eleven); and three
counts of third degree uttering a forged instrument, N.J.S.A.
2C:21-1a(3) (counts four, eight, and twelve).
following day, defendant filed a Uniform Defendant Intake
Report (commonly referred to as a
"5A") in the vicinage's Criminal Division
Manager's Office to support his request to be represented
by the Office of the Public Defender. See R. 3:8-3. In the
section of the 5A labeled "VIII. Financial Status[,
]" defendant averred that he had a $1200 monthly income
and owned real estate valued at $1.1 million. The document
did not require the applicant to disclose his method of
valuation. On the liability side, defendant revealed he had a
$1000 per month child support obligation and owed $12, 000 in
fines to other courts.
face, the financial information defendant provided in the 5A
was insufficient to make an informed determination about his
eligibility to be represented by the Public Defender.
Defendant did not reveal the source of his alleged $1200
monthly income, did not submit his most recent income tax
returns, and did not provide recent proof of employment, such
as a W2 or a letter from an employer. With respect to his
house, defendant neither indicated his mother's ownership
interest nor provided a municipal property tax assessment
statement or other documentation to support the $1.1 million
valuation. See N.J.S.A. 2A:158A-14.
these omissions, the vicinage's Criminal Division
Manager's Office found defendant ineligible for
representation by the Public Defender. Although not reflected
in his first 5A, defendant alleges he informed the Criminal
Division Manager's Office that he had a fifty percent
ownership interest in the house in which he resided with his
mother. He also claims the house was heavily leveraged; he
had defaulted on his mortgage loan and the property was in
the final stages of foreclosure.
was fifty-two years old at the time he applied to be
represented by the Public Defender. He graduated high school
in 1979 and attended college for two years, but did not
receive a degree. His employment history mainly consists of
working at a family-owned motel. He began working at the
motel as a teenager and continued until it closed in 2008 due
to eminent domain. Defendant then worked sporadically as a
driver for a recycling business owned by one of his three
older siblings. At the time he submitted his second 5A, his
employment status was dubious. Defendant alleged he supported
himself doing "odd jobs, " but had substantial
personal debts outstanding. For example, he is legally
obligated to support two of his children and was delinquent
in paying his child support obligations, accruing
approximately $20, 000 in arrears.
TO PLEA CUT OFF
February 19, 2013, defendant appeared before the trial court
for arraignment. Rule 3:4-2 describes in detail the
procedural steps the trial court must take to protect a
defendant's constitutional rights at this critical stage
of the criminal process. Despite these safeguards, the record
shows the trial judge arraigned defendant, even though he was
not represented by counsel. The magnitude of this
constitutional deprivation is best revealed by quoting
verbatim the most significant parts of the arraignment
THE COURT: This is Mr. John Vanness. Mr. Vanness is a
codefendant on the previous matter. He's here on two
matters, Indictment 13-01-50 and Indictment 13-01-208 [i.e.,
this case]. The 208 matter involves theft by deception, bad
check[s], forgery, uttering [a] forged instrument, -- it
looks like a series of events that occurred during November
2012 in Ocean Township. That was on actually for
pre-arraignment, but we are going to arraign him on that
In addition, he has a pending violation of probation out of
Atlantic County. Apparently he's on probation at this
time. I don't know if it overlaps these incidents.
Mr. Vanness filled out a form 5A and does not qualify for a
Mr. Vanness, who's going to represent you? DEFENDANT: At
this time, probably myself.
THE COURT: All right. That's fine. A new case came down
that said I can't stop somebody from representing
themselves even if it's a bad idea for
DEFENDANT: Well, at this time, you know . . .
THE COURT: I'm going to let you represent yourself.
We're not going to hold the case up because of that
THE COURT: You heard what I said about your brother's
case. If you can work out a plea offer or a package offer
with the State, they'll dismiss against him. They seem to
feel they have a pretty good case against you. I will enter
not guilty pleas on these two indictments.
THE COURT: [W]hen you come back on March 25, 2013, we're
going to go to the next step.
THE COURT: And you're familiar with the criminal justice
DEFENDANT: Yes, I am.
THE COURT: -- apparently, so you know what's going to
come. Their initial plea offer is four years flat. You can
negotiate with them on that. By the time we come back next
time we'll be ready to move forward in setting any dates
for motions, if there are any motions you want to file, so
you better start reading up on that.
THE COURT: If you're going to have an attorney here, have
him here for a status.
THE COURT: Because once we start off and get an attorney,
after that they are going to have to come in and be ready to
THE COURT: You will be given the discovery and the indictment
in this matter. It's downstairs. Because you showed up
today, I will issue an ROR bail which means all you have to
do is sign for it.
THE COURT: All right? You have the notice. You have to be
back here on March 25, 2013, at 9:00 a.m. If you fail to
appear, an order will issue for your arrest. Do you
understand what I have said to you?
DEFENDANT: Yes, I do.
colloquy shows, the judge did not apprise defendant of his
right to have the Assignment Judge or his or her designee
review his 5A application and make a final determination of
his eligibility to be represented by the Public
Defender's Office. N.J.S.A. 2A:158A-15.1. The judge also
did not: (1) inquire about defendant's ability or
intention to seek private counsel; (2) make any determination
about defendant's intention to waive the right to
counsel; or (3) assess his capability to represent himself.
next appeared before the trial judge on March 25, 2013 for
the scheduled status conference. Defendant was still not
represented by an attorney. Despite this, the judge proceeded
THE COURT: We are here for [a] status conference today.
The [S]tate's initial plea offers were for four years
flat, New Jersey State Prison. [Prosecutor, ] [h]as there
been any counteroffer at this time[?]
PROSECUTOR: There has not, Your Honor.
THE COURT: [Defendant], you are here without an attorney. Are
you going to represent yourself?
DEFENDANT: Yes, I am, sir.
THE COURT: Okay.
judge asked defendant if he had discussed the case with the
prosecutor. Defendant informed the court that he had provided
discovery to the State in the "Sears case, "
referring to Indictment 13-01-208. The judge then asked
defendant if he had "anything to give" the
prosecutor with respect to Indictment 13-01-50. When
defendant answered, "No, " the judge admonished
defendant that he had to provide the State with discovery
before his next court appearance. When defendant said he had
given the State all of the discovery he had concerning the
"Sears" case and was "ready to go" to
trial, the judge stated, "That's fine, but [the
prosecutor] gets to choose which case he wants to move
first." The judge concluded the hearing by scheduling a
plea cut off conference under Rule 3:9-3(g).
this exchange, the judge learned defendant was not aware that
if he wanted to read the evidence the State presented to the
grand jury, he had to order and pay for the transcript of the
grand jury minutes. The judge did not ask defendant any
questions about his financial status or whether he had made
any other attempts to qualify for representation by the
Public Defender's Office. In short, the judge proceeded
as if defendant's decision to waive his right to counsel
months later, defendant again appeared before the court
without counsel. The judge advised defendant of his maximum
sentencing exposure. The judge also explained the potential
sentencing consequences that could result if defendant
refused the State's plea offer of four years imprisonment
for both open indictments. Defendant informed the judge that
he wished to proceed to trial.
judge then asked defendant the following questions regarding
his decision to proceed without counsel:
THE COURT: Have you ever consulted with an attorney on any of
DEFENDANT: Not . . . on the Sears [matter;] I've done
basically all the research myself[.]
THE COURT: Have you ever represented yourself in court
THE COURT: Do you understand that I cannot prohibit you from
representing yourself pro se?
DEFENDANT: I understand that.
THE COURT: But I'm not going to help you in the case
DEFENDANT: I don't want you to.
THE COURT: You're going to be governed by the rules of
THE COURT: You're going to have to, when you
cross-examine witnesses, ask questions [and] not make
THE COURT: If you choose to take the witness stand in your
own defense, which you don't have to do, you can do that,
and you will respond to the questions that ...