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State v. Ness

Superior Court of New Jersey, Appellate Division

June 2, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
JOHN C. VAN NESS, [1] Defendant-Appellant.

          Submitted April 5, 2017

         On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-01-0208.

          Joseph 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).

          Before Judges Fuentes, Simonelli and Gooden Brown.


          FUENTES, P.J.A.D.

         This 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 trial.



         On 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).

         The following day, defendant filed a Uniform Defendant Intake Report (commonly referred to as a "5A")[2] 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.

         On its 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.

         Despite 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.

         Defendant 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.


         On 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.[3] 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 proceeding:

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 today.
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 public defender.
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 them.[4]
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 representation.
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.
DEFENDANT: Absolutely.
THE COURT: And you're familiar with the criminal justice system --
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.
DEFENDANT: Absolutely.
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 go.
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?
[(Emphasis added).]

         As this 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.

         Defendant 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 without hesitation:

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 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).[5]

         Through 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 was settled.

         Three 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.

         The 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 these things?
DEFENDANT: Not . . . on the Sears [matter;] I've done basically all the research myself[.]
THE COURT: Have you ever represented yourself in court before?
DEFENDANT: Municipal.
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 either.
DEFENDANT: I don't want you to.
THE COURT: You're going to be governed by the rules of court.
THE COURT: You're going to have to, when you cross-examine witnesses, ask questions [and] not make statements.
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 ...

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