STATE OF NEW JERSEY VS. JOHN C. VAN NESS (13-01-0208, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2728-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. June 2, 2017

APPELLATE DIVISION

JOHN C. VAN NESS,1

Defendant-Appellant.

_________________________

Submitted April 5, 2017 – Decided June 2, 2017

Before Judges Fuentes, Simonelli and Gooden

Brown.

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).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

1

Defendant is also referred to in the record as John C. Vanness.

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.

I

FIRST PUBLIC DEFENDER APPLICATION

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).

2 A-2728-14T1

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

2

The copy of the 5A in the appellate record was provided to us

as part of the State's appendix. The document is redacted to

exclude defendant's personal information.

3 A-2728-14T1

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

4 A-2728-14T1

and was delinquent in paying his child support obligations,

accruing approximately $20,000 in arrears.

ARRAIGNMENT TO PLEA CUT OFF

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.

3

An arraignment is a critical stage of the criminal process that

triggers a defendant's right to counsel under both the Sixth

Amendment and Article I, Paragraph 10 of the New Jersey

Constitution. State ex rel. P.M.P., 200 N.J. 166, 174 (2009).

5 A-2728-14T1

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.

DEFENDANT: No.

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.

4

Although the judge did not name the case, we infer he referred

to State v. King, supra, 210 N.J. 2. As we will explain in

Section V of this opinion, we do not agree with the judge's

characterization of the Supreme Court’s holding in King.

6 A-2728-14T1

THE COURT: And you're familiar with the

criminal justice system --

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.

DEFENDANT: Yes.

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.

DEFENDANT: Okay.

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.

[(Emphasis added).]

7 A-2728-14T1

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 COURT: Okay.

8 A-2728-14T1

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

5

Under Rule 3:9-3(g) a "plea cut off" conference is held

"[a]fter the pretrial conference has been conducted and a trial

date set[.]" Thereafter, "the court shall not accept negotiated

pleas absent the approval of the Criminal Presiding Judge based

on a material change of circumstance, or the need to avoid a

protracted trial or a manifest injustice."

9 A-2728-14T1

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.

10 A-2728-14T1

THE COURT: You're going to be governed by

the rules of court.

DEFENDANT: Yes.

THE COURT: You're going to have to, when you

cross-examine witnesses, ask questions [and]

not make statements.

DEFENDANT: Correct.

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 I ask you by

way of a narrative[.]

DEFENDANT: Mm-hmm.

THE COURT: And you also -- do you have a

prior criminal record?

DEFENDANT: I have one felony.

THE COURT: That could be used against you

in that situation where you take the witness

stand.

. . . .

DEFENDANT: That's if I testify.

THE COURT: If you testify.

DEFENDANT: Yeah.

THE COURT: I will sanitize it, so that the

only thing the jury will know is . . .

either the indictment or accusation number,

the date of the sentence, the sentence

itself, . . . and the degree of the crime.

I'm not going to get into the specifics with

the jury of whatever crime you were

convicted. But that will come up, because

there was a charge that I can read to the

11 A-2728-14T1

jury about how that affects your

credibility.

DEFENDANT: Sure.

THE COURT: Are you familiar with all of

that?

DEFENDANT: Yes, I am.

THE COURT: Okay. And are you familiar with

the rules of court? Have you done that

research?

DEFENDANT: Not yet.

THE COURT: Have you -- are you familiar

with the elements of the crimes [with] which

you've been charged . . . ?

DEFENDANT: Yes, very familiar.

THE COURT: Okay. So, you're prepared on

that?

DEFENDANT: Very. Very prepared.

THE COURT: And you still want to represent

yourself?

DEFENDANT: Absolutely.

As the above excerpt demonstrates, the judge did not review

the elements of the offenses on the record with defendant.

Although the judge noted that he would "sanitize" under

Sands6/Brunson7 the information the jury would hear about his

prior conviction if he elected to testify, the judge did not

6

State v. Sands, 76 N.J. 127 (1978).

7

State v. Brunson, 132 N.J. 377 (1993).

12 A-2728-14T1

mention or discuss the State’s intention to use this same

evidence in its case-in-chief under N.J.R.E. 404(b).

As the conference continued, defendant asked the judge if

he was permitted to speak with the State's witnesses and ask

them questions before trial. The judge told defendant he had

the right to investigate the charges against him, including

speaking directly with potential witnesses. The judge warned

defendant to be "very careful with what you say to them, because

you don't want to in any way leave in their mind that you might

be threatening them[.]" The judge failed to inform defendant

that any self-incriminating statements he made to these

witnesses could be used against him at trial under N.J.R.E.

803(b)(1).

At the end of this exchange, the judge made the following

findings:

THE COURT: He has chosen to go pro se. I am

making a finding today that I have advised

him against appearing pro se. I don't think

it's smart. They say the person who . . .

represents himself has a fool for an

attorney. But under [State v. King], I

can't force him to get an attorney. He is

allowed to represent himself under the

constitution . . . , and I'll permit that to

happen, but I'm satisfied he understands the

short-fallings of that and has decided to

appear by himself.

13 A-2728-14T1

Defendant then asked the judge whether he could have "a

legal assistant" to answer his questions during trial. The

judge gave the following response:

THE COURT: Just so you understand, --

DEFENDANT: Right.

THE COURT: -- they will not in any way take

part in the proceedings, other than you can

lean over and ask them certain questions.

DEFENDANT: Correct. Correct. That's what

I'm saying.

. . . .

THE COURT: But if you're going to represent

yourself, you're going to represent

yourself. If I get the sense that this is

actually your attorney just telling you

everything to say, then I'm going to stop

the proceedings and that person is going to

represent you.

. . . .

THE COURT: But I will not discourage you.

If somebody wants to come in pro bono and

sit with you, or take less of a fee to sit

with you, no, absolutely, you can do that.

. . . .

THE COURT: They just have to be a licensed

attorney in the state of New Jersey.

DEFENDANT: No, he is. He is.

. . . .

THE COURT: We are going to proceed [to

trial] . . . regardless of whether he

appears or not.

14 A-2728-14T1

The judge scheduled the trial to start on December 2, 2013.

Thereafter, the State filed the N.J.R.E. 404(b) motion seeking

to introduce statements defendant made at his plea hearing on

May 10, 2010. Defendant did not oppose the motion or appear for

oral argument. In a certification submitted in support of his

motion for a new trial, defendant averred he did not challenge

the State's motion "because [he] did not understand it and had

no legal counsel to help [him]." The court granted the motion

and rescheduled the trial for June 3, 2014.

SECOND PUBLIC DFENDER APPLICATION

For reasons not disclosed in the record, defendant appeared

before the trial judge on June 2, 2014, the day before the

scheduled trial date. The judge noted that the charges against

defendant had "been reduced to six counts because the prosecutor

voluntarily dismissed several of the counts." In fact, the

State dismissed fifty percent of the twelve charges originally

listed under Indictment 12-01-208. The prosecutor characterized

the State's decision to dismiss the charges as reflecting the

true issue at stake: "not whether the checks were forgeries but

whether the checks were bad[.]"

The judge addressed defendant one more time concerning his

decision to proceed without counsel:

15 A-2728-14T1

THE COURT: We had gone through Mr.

Vanness'[s] desire to represent himself. As

I recall, you do not qualify for the Office

of the Public Defender, correct?

DEFENDANT: I might now, yeah.

In response to defendant’s statement, the judge directed him to

complete another 5A form and submit it to the Criminal Division

Manager's Office.

A copy of the second 5A form is attached as an exhibit in

the State's appendix.8 Defendant self-appraised the value of his

real property at $800,000, a reduction of $300,000 from the $1.1

million value he listed in the first 5A. The second 5A also

showed the extent of defendant's liabilities. First, it

demonstrated defendant owed $125,000 in total unpaid debts.

Second, defendant averred his child support arrears had risen

from $20,000 to $23,000. Finally, defendant attached notices

from the Internal Revenue Service showing he owed $36,469.41 in

unpaid federal taxes. The record does not reveal whether the

Criminal Division Manager's Office questioned the authenticity

of these documents.

8

To document his ownership interest in the Neptune property,

defendant attached a deed recorded on February 13, 2003, listing

the name of a woman, purporting to be defendant's sister,

granting defendant an ownership interest in the property as a

joint tenant. Also attached is an Affidavit of Exemption from

the payment realty transfer fees under N.J.S.A. 46:15-10(a).

The affiants assert under oath that the transfer of ownership

interest was "from sister to brother."

16 A-2728-14T1

After the Criminal Division Manager reviewed defendant's

second 5A application, the trial judge stated: "We again ran the

criteria for qualifying for a public defender today. He still

does not qualify for the public defender, [which is] why I will

not assign a public defender as standby counsel." The record

does not reveal the Criminal Division Manager's reasons for

rejecting defendant's 5A. The trial judge did not make any

further inquiries on the matter and again failed to inform

defendant that "[a] determination to grant or deny the services

of the Public Defender shall be subject to final review by the

Assignment Judge or his [or her] designated judge." N.J.S.A.

2A:158A-15.1.

II

THE TRIAL

The trial began on June 3, 2014, and ended two days later.

The State presented evidence showing that on April 30, 2009,

Banco Popular Community Bank notified defendant in writing that

it had closed his checking account. At the time, defendant's

account at Banco Popular had a negative balance of $7,559.23.

17 A-2728-14T1

In November 2012, Jean V. Sarno was employed as the loss

prevention manager at the Sears store in Ocean Township,

Monmouth County. She testified that at 3:30 p.m. on November

11, 2012, defendant purchased an air humidifier, a backup

generator, and a gift card from the store. Defendant paid for

these items with a check in the amount of $995.08, drawn on the

same defunct Banco Popular checking account that had closed more

than three years earlier.

Defendant returned to Sears twice on the following day and

purchased additional merchandise from the same cashier. At 2:45

p.m., defendant purchased high thread-count sheets and two

coffee makers for $957.55. At 3:39 p.m., defendant purchased

more sheets, a television mount, and a third coffee maker for

$930.80. Both times, defendant paid for the merchandise using

checks drawn on his defunct Banco Popular checking account.

Sarno testified that Sears requires its cashiers to follow

a particular procedure when a customer pays for merchandise with

a check. This procedure requires cashiers to insert personal

checks into a slot in the cash register, which verifies the

check's validity by electronically contacting the customer's

bank. When a customer pays for goods using a business check,

the cashiers confirm the check's validity by calling an 800

number. Sears cashiers must also contact one of their

18 A-2728-14T1

supervisors if a customer attempts to pay for goods with a check

in excess of $500.

Shequelle Harris was the Sears cashier who processed

defendant's purchases on November 11, 2012 and November 12,

2012. Sarno testified that Harris failed to follow the

established anti-theft procedures when defendant made purchases

on these two days. Specifically, she did not call the 800

number to verify the validity of defendant's business checks.

Instead, Harris improperly processed all three of defendant's

purchases as cash transactions and subsequently placed

defendant's checks in her cash register drawer.

According to Daniel Schroeder, the manager of Sears's Ocean

Township store at the time, defendant promptly returned all of

the merchandise to other Sears locations in exchange for cash.

A Sears office associate later discovered defendant's checks in

Harris's cash register drawer. The associate alerted Sarno, who

immediately reviewed the store's surveillance videos and

confirmed Harris failed to adhere to the procedures established

for processing check payments. Sarno testified that Banco

Popular refused to honor any of defendant's checks. At this

time, Sarno directed one of her "agents" to contact the Ocean

Township Police Department. Ocean Township Patrol Officer

19 A-2728-14T1

Michael DeSimone arrested defendant when he returned to the

store on November 20, 2012.

At trial, the State called Absecon Police Sergeant Robert

Ponzetti as a witness. Before Sergeant Ponzetti took the stand,

the trial judge gave the following instructions to the jury:

The State's next witness is going to

introduce evidence that the defendant has

previously given testimony under oath in a

prior proceeding regarding his knowledge of

the account at Banco Popular, . . . and his

knowledge of whether checks written against

that account would be honored.

This testimony was given in the form of a

statement under oath involving the writing

of bad checks . . . arising from the

defendant's writing and depositing of a

check drawn against that same account back

in September 2009.

Normally such evidence is not permitted

under our Rules of Evidence. Our rules

specifically exclude evidence that a

defendant has committed other crimes,

wrongs, or acts when it is offered only to

show that he has a disposition or tendency

to do wrong[,] and[] therefore, must be

guilty of the charged offenses that are

before you.

Before you can give any weight to this

evidence, you must be satisfied that the

defendant committed those other acts. If

you are not so satisfied, you may not

consider that evidence for any purpose.

However, our rules do permit evidence of

other crimes, wrongs, or acts when the

evidence is used for certain specific narrow

purposes.

20 A-2728-14T1

In this case[,] the State is offering this

evidence for the limited purpose of showing

the defendant's knowledge that at the time

of the writing of the prior check or checks

against that account back [on] September 30,

2009, . . . the defendant knew that [the]

checking account at Banco Popular[] . . .

was closed, and that those checks written

against that account at that time would not

be honored by the bank.

The bad check statute, under which the

defendant is charged, requires the State to

show that the defendant not only submitted a

bad check, but also that he did so, quote,

knowing that it would not be honored by the

drawee, closed quote.

This evidence is being presented to you for

the limited purpose of assisting you in your

determination as to whether the defendant

knew at the time he allegedly wrote and

presented the checks against this account on

November 11 and 12, 2012 at Sears that these

checks would not be honored by the bank they

were drawn upon.

Sergeant Ponzetti read to the jury a section of a

transcript of a plea hearing conducted on May 10, 2010, at which

defendant admitted that on September 30, 2009, he passed "a

check . . . made payable to Frank Vanness issued by John Vanness

in the amount of $8,000[,] knowing that the TD Bank wouldn't

honor that check." Defendant did not object.

Defendant called Shequelle Harris as a witness. Harris

testified that when defendant paid for his Sears merchandise on

November 11, 2012, he showed her his driver's license and asked

her "four or five times" to hold the check and not deposit it.

21 A-2728-14T1

Harris stated the check looked valid because the address listed

on the check matched the address on defendant's driver's

license. When defendant asked her when she would be working

again, she told him she would be working the same cash register

the next day.

Harris testified that defendant returned to Sears on

November 12, 2012, and again purchased items at her cash

register. Defendant gave her a business check to pay for his

merchandise. Harris testified defendant again told her to

refrain from depositing the check. According to Harris,

defendant was "very persistent" about this request. She also

stated that defendant did not ask for any type of receipt to

document his purchases.

On cross-examination, Harris conceded she would not have

accepted defendant's checks if she knew they were invalid. She

admitted she did not follow Sears's procedures when she failed

to process the checks electronically or call Banco Popular to

verify their validity. Harris also admitted she was not

authorized to accept and hold checks based on a customer's

promise of future payment. On redirect, Harris claimed Sarno

told her not to mention in her Sears incident report that

defendant provided his driver's license or that he asked her to

hold on to the checks. Harris alleged Sarno threatened that

22 A-2728-14T1

she would be charged as defendant's accomplice and serve time in

jail if she stated otherwise.

Defendant testified in his own defense. As soon as

defendant took the witness stand, the trial judge addressed him,

in the jury's presence, as follows:

THE COURT: Mr. Vanness, have a seat. I am

not going to act as your attorney and ask

you questions. We know what the focus of

this case is[;] . . . it's on the events of

November 11 and November 12, 2012. I will

permit you to give a narrative of your

version of what occurred, and then the

prosecutor will be allowed to cross-examine

you. So you can proceed.

DEFENDANT: How we doing --

THE COURT: Don't talk to them[;] just give

your version of what happened. You'll be

able to talk to them in your summation.

DEFENDANT: I guess I should start off by

saying about probably 12 days I think after

Sandy and it was my mom -- just one second.

THE COURT: Why don't you just tell me what

happened on November --

DEFENDANT: I'm trying to --

THE COURT: I don't need the backdrop of why

--

DEFENDANT: I want to explain the reason why

I went to Sears.

THE COURT: You went to Sears to purchase

merchandise; is that correct?

DEFENDANT: That's correct.

23 A-2728-14T1

[(Emphasis added).]

This brief excerpt illustrates the approach the trial judge

adopted during defendant's direct testimony. Despite the

judge's initial promise that he would permit defendant to

testify in "a narrative" format, the judge repeatedly

interrupted and admonished defendant that he was not focusing on

what happened on the day he went to Sears. The record shows the

judge quickly abandoned his plan to allow defendant to tell the

jury his "version" of events in a narrative fashion. Unable to

keep defendant's "focus" on the material facts in the case, the

judge assumed the role of de facto examiner. The following

exchange illustrates this point:

DEFENDANT: I decided at that time, I went in

to Sears, I saw the generators, a small

generator, picked that up and -- not so

small, I think like 1500 watts it was or 25

-- I don't remember. And then there was a

big air filter, and I said that would be

good to use. And I went to check out, and

that's when I -- Mrs. Harris was at the

register.

And knowing that I knew my checks were bad,

I knew that I didn't want them deposited at

all, and I didn't want them -- because I

knew they would bounce[;] that's the reason

why I asked her, please, hold on to the

checks[;] do not deposit them.

Being that I have a check charge in my life,

I started to read up on it, and I knew

exactly, thinking to myself, okay, I can't

allow her to deposit these checks at all,

and I have to make sure that she . . .

24 A-2728-14T1

hold[s] them. I have to ask her to hold

them. I knew that already.

So [I] rang up the items, and I was talking

to her about Sandy and, you know, the things

that happened to us, and, you know, my house

was all messed up and my whole basement

[was] flooded. I mean, everybody was a

mess. I live in Shark River Hills right --

THE COURT: Again, you're not focusing on

what happened that day.

DEFENDANT: Okay. Sorry.

At that point there when I talked to Miss

Harris, I explained several times to her,

please do not, do not, do not deposit my

checks[;] please hold them. I will be back.

That's basically -- besides all the in

between talking of what was going on in the

world, that's basically the transaction.

She promised me that she wouldn't. She said

that she would hold the checks. She would

not deposit the checks.

THE COURT: Did you tell her that the checks

were -- that there was no money in the

account?

DEFENDANT: I did not tell her that. I did

tell her that I would be back to pay for

everything. That I did tell her.

I don't know if she -- I really don't know

if she understood me or not but I did say

four or five times, if not more, [p]lease do

not deposit the checks[;] please hold them.

And that was the truth.

THE COURT: So you left Sears with the items

you purchased that day?

DEFENDANT: Correct. I did[.] . . . I did

ask her when she was working again. I

didn't know if my mother was going to be

25 A-2728-14T1

able to get out and get the money so I

decided, okay, go home, you know, hook up

the generator, everything like that. We got

an electric heater going, air filters, and

we're good.

THE COURT: Did you go directly home?

DEFENDANT: Yes.

THE COURT: Then you hooked up the items?

DEFENDANT: Yes. Yes.

THE COURT: When is the next time you entered

a Sears?

The judge continued to question defendant in this fashion

until the end of his direct testimony. The jury found defendant

guilty on all three counts of third degree theft by deception,

N.J.S.A. 2C:20-4, and all three counts of fourth degree bad

checks, N.J.S.A. 2C:21-5.

III

MOTION FOR A NEW TRIAL

On June 30, 2014, defendant appeared before the trial judge

for arraignment in connection with unrelated charges under

Monmouth County Indictment No. 13-01-50. At this time, the

court had not yet sentenced defendant with regard to Indictment

13-01-208. Defendant again requested to be represented by the

Office of the Public Defender. This time, Assistant Criminal

Division Manager Kristi Smith reviewed and approved defendant's

5A application.

26 A-2728-14T1

Defendant filed a motion for a new trial and requested to

stay the imposition of sentence pending appeal. In a

certification dated July 7, 2014, defendant averred the trial

judge and Criminal Division Manager twice failed to appreciate

his impecunious state and wrongly denied him his right to be

represented by the Office of the Public Defender. Defendant

also averred that the private law firm his mother hired to

represent him on his motion for a new trial had agreed to accept

"a substantially-reduced fee that my mother has promised to pay

(I remain unable to pay any legal fees myself)."

Although not clearly stated, we presume the trial judge

expected to hear argument on this motion at the day of

sentencing. However, defendant failed to appear at the

sentencing hearing. The judge stayed the hearing and issued a

bench warrant for defendant's arrest. The case returned to the

trial court on November 13, 2014, after defendant was

apprehended on the bench warrant. By that time, defendant was

represented by a "pool attorney"9 assigned by the Monmouth County

Public Defender's Office.

9

The Office of the Public Defender is authorized to maintain and

compensate "trial pools of lawyers" on a case-by-case basis.

N.J.S.A. 2A:158A-7(c)–(d). Pool attorneys may be engaged

"whenever needed to meet case load demands, or to provide

independent counsel to multiple defendants whose interests may

be in conflict." N.J.S.A. 2A:158A-9; see also N.J. Div. of Child

(continued)

27 A-2728-14T1

Defense counsel argued defendant was entitled to a new

trial under Rule 3:20-1 because the court had violated his Sixth

Amendment right to counsel. In support of his argument, defense

counsel described defendant's two unsuccessful attempts to

qualify for representation by the Public Defender's Office.

Counsel emphasized that defendant succeeded on his third

attempt, despite the absence of any new information in his third

5A application. Counsel argued the Criminal Division Manager

erred the first two times by misunderstanding that defendant

owned his real property as a joint tenant with the right of

survivorship.

Counsel noted that defendant's property was heavily

leveraged and did not have any equity left to extract. Counsel

also indicated that defendant produced proofs of personal debts

and financial obligations to his minor children. Counsel argued

this oversight was the product of an improper investigation by

the staff responsible for determining when a person is indigent

under N.J.S.A. 2A:158A-2. Counsel also argued the trial judge

did not ensure that the vicinage's Assignment Judge, "or his [or

her] designated judge," reviewed defendant's rejected 5A

application, as provided in N.J.S.A. 2A:158A-15.1. Counsel

(continued)

Prot. & Permanency v. G.S., 447 N.J. Super. 539, 558 (App. Div.

2016).

28 A-2728-14T1

stated the record shows that defendant did not knowingly waive

his right to counsel. In fact, defendant doggedly sought an

attorney to represent him from the date of arraignment through

the start of trial. Defendant only represented himself when the

judicial system, as represented by the trial judge and the

Criminal Division Manager, left him with no other alternatives.

Independent of this error, defense counsel argued the trial

judge failed to follow the standards that the Supreme Court

established in King, supra, 210 N.J. 2, and improperly concluded

defendant was capable of representing himself in this criminal

jury trial. Although the judge acknowledged this court's

decision in State v. Slattery, 239 N.J. Super. 534 (App. Div.

1990), he failed to follow the three "guidelines" a trial judge

should consider when confronted with a defendant who does not

qualify for the Public Defender, but has not retained private

counsel. As part of these guidelines, we suggested: "If [the

defendant] has not retained an attorney, stand-by counsel may be

appointed with adequate provision for compensation." Id. at

550. The trial judge noted that he considered appointing stand-

by counsel, but ultimately decided against it because defendant

"was telling me he couldn't compensate anybody anything."

Defense counsel also argued the trial judge failed to

timely and comprehensively examine defendant's background and

29 A-2728-14T1

circumstances to ensure defendant both understood the perils of

self-representation and knowingly and voluntarily waived his

right to counsel. Defense counsel noted that in Slattery, we

cautioned trial judges to conduct a "'searching and painstaking'

inquiry . . . sufficiently in advance of the peremptory date set

for the trial so as to enable the defendant to secure an

attorney or decide to represent himself." Slattery, supra, 239

N.J. Super. at 550.

At the conclusion of oral argument, the trial judge denied

defendant's motion for a new trial and sentenced defendant to

serve a term of five years and pay the mandatory fines and

penalties.

IV

Against this record, defendant raises the following

arguments on appeal:

POINT I: THE DEFENDANT'S MOTION FOR NEW

TRIAL SHOULD HAVE BEEN GRANTED: THE

DEFENDANT SHOULD HAVE BEEN GRANTED THE

SERVICES OF THE PUBLIC DEFENDER.

POINT II: DEFENDANT'S MOTION FOR NEW TRIAL

SHOULD HAVE BEEN GRANTED: DEFENDANT DID NOT

MAKE A KNOWING AND INTELLIGENT DECISION TO

SELF-REPRESENT.

POINT III: DEFENDANT'S MOTION FOR NEW TRIAL

SHOULD HAVE BEEN GRANTED: THE COURT SHOULD

HAVE GRANTED DEFENDANT'S REQUEST FOR THE

ASSISTANCE OF STANDBY COUNSEL.

30 A-2728-14T1

We are satisfied defendant was denied his right to counsel

under the Sixth Amendment to the United States Constitution and

Article I, paragraph 10 of the New Jersey Constitution. Under

these circumstances, our only recourse is to reverse defendant's

conviction and remand for a new trial. Although there are a

number of factors that contributed to this outcome, the

constitutional violation begins with the Criminal Division

Manager's denial of defendant's application seeking

representation by the Public Defender's Office. We will thus

briefly summarize how this process should function.

The Legislature enacted the Public Defender Act (PDA),

N.J.S.A. 2A:158A-1 to -25, "to provide for the realization of

the constitutional guarantees of counsel in criminal cases for

indigent defendants[.]" N.J.S.A. 2A:158A-1. As a matter of

public policy, the Legislature declared that the "system and

program established and authorized by this act [are dedicated]

to the end that no innocent person shall be convicted, and that

the guilty, when convicted, shall be convicted only after a fair

trial according to the due process of the law." Ibid.

Although the Public Defender's Office is funded by the

legislative branch and staffed by the executive branch, the

judiciary is entrusted to "determine whether a defendant

qualifies for a public defender[.]" In re Custodian of Records,

31 A-2728-14T1

Criminal Div. Manager, 214 N.J. 147, 151 (2013). The then-

existing Rule 3:4-2(b)(3) and the current Rule 3:4-2(c)(3)

require the trial judge to inform a criminal defendant of his or

her right to request a public defender at the first hearing

before the court. In re Criminal Div. Manager, supra, 214 N.J.

at 159; see also State v. A.L., 440 N.J. Super. 400, 404 (App.

Div. 2015). If the defendant asserts indigence, the trial judge

must instruct the defendant to complete a 5A application for a

public defender. In re Criminal Div. Manager, supra, 214 N.J.

at 159 (citing R. 3:4-2(b)(5)). As part of the application, the

defendant provides employment and financial information on page

three of the 5A form. Id. at 160. The defendant must certify

the accuracy of the financial data he provides, and he must

affirm his awareness that "willfully false" statements will

subject him to punishment. Id. at 151, 160.10

Rule 3:8-3 charges each vicinage's Criminal Division

Manager's Office with assessing public defender applications for

indigency. If a defendant is found indigent, the Criminal

Division Manager refers the defendant to the Office of the

Public Defender no later than the date of his pre-arraignment

10

Pursuant to Rule 1:4-4(b), a certification of this kind

substitutes for an oath, and a person who submits a willfully

false statement under a signed certification is subject to

prosecution for false swearing. See State v. Feaster, 184 N.J.

235, 258 n.9 (2005) (citations omitted).

32 A-2728-14T1

conference. In re Criminal Div. Manager, supra, 214 N.J. at 160

n.2 (citing R. 3:8-3; R. 3:9-1(a)).

The PDA defines an "indigent defendant" as "a person who is

formally charged with the commission of an indictable offense,

and who does not have the present financial ability to secure

competent legal representation . . . and to provide all other

necessary expenses of representation." N.J.S.A. 2A:158A-2. In

determining whether a defendant qualifies as "indigent," the 5A

Office considers the factors set forth in N.J.S.A. 2A:158A-14:

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

33 A-2728-14T1

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.]

As the branch of government entrusted to determine who is

eligible to be represented by the Office of the Public Defender:

The judiciary has an independent

responsibility to [e]nsure that funds set

aside for qualifying criminal defendants are

not misappropriated by those who do not

qualify but provide false information to

obtain a public defender. See N.J.S.A.

2A:158A-15.1. For that reason, we refer the

question of defendant's qualification for

indigency status to the Assignment Judge for

review. The Assignment Judge can rely on

any relevant, competent evidence provided by

any person or entity to determine whether

defendant qualifies for a public defender.

[In re Criminal Div. Manager, supra, 214

N.J. at 152 (emphasis added).]

The Legislature also provided that if the court cannot

accurately determine a defendant's eligibility for public

defender services, or if an initial determination is found to be

erroneous, the public defender must represent the defendant "on

a provisional basis." A.L., supra, 440 N.J. Super. at 406

(citing N.J.S.A. 2A:158A-14). If the court subsequently

determines the defendant was not eligible, the defendant is

34 A-2728-14T1

required to reimburse the Office of the Public Defender "for the

cost of the services rendered [up] to that time" and retain

private counsel for his or her remaining needs. N.J.S.A.

2A:158A-14.

Here, the record shows defendant appeared at his

arraignment without counsel. When defendant informed the judge

that the Criminal Division Manager had denied his 5A

application, the judge did not investigate the matter further.11

The record shows the judge believed himself bound by the

Criminal Division Manager's decision. This threshold error set

the stage for how the judge proceeded from this point forward.

Although Rule 3:8-3 requires the Criminal Division Manager

to review a defendant's 5A form to determine indigency under

N.J.S.A. 2A:158A-14, the vicinage's Assignment Judge makes the

ultimate determination of a defendant's indigent status.

N.J.S.A. 2A:158A-15.1; In re Criminal Div. Manager, supra, 214

N.J. at 152. Here, the trial judge acknowledged he neither

reviewed defendant's 5A form at any time, nor suggested that the

vicinage's Assignment Judge evaluate defendant's indigency

status.

11

Rule 3:4-2(b) now authorizes the trial judge "to assign the

Office of the Public Defender to represent the defendant for

purposes of the first appearance."

35 A-2728-14T1

The record strongly suggests defendant's financial status

was not properly documented in the first 5A. This error could

have been discovered, either at the arraignment or shortly

thereafter, had the judge assigned counsel to represent

defendant as Rule 3:4-2(b) now provides. Defendant's second 5A

was supported by substantial documentary evidence. However,

this application was also rejected without explanation. The

Criminal Division Manager inexplicably approved defendant's

third attempt to be represented by the Public Defender's Office,

based on the same information he submitted with the second 5A

form. By that time, a jury had convicted defendant on all of

the six remaining charges in the indictment.

Pursuant to Rule 3:20-1, a defendant is entitled to a new

trial when such is "required in the interest of justice." The

decision of whether to grant or deny a motion for a new trial is

left to the trial judge's sound discretion, and this court

should interfere with the exercise of that discretion only when

"a clear abuse has been shown." State v. Brooks, 366 N.J.

Super. 447, 454 (App. Div. 2004) (quoting State v. Russo, 333

N.J. Super. 119, 137 (2000)). Appellate review is limited to a

determination of whether the trial court could reasonably have

reached the findings it made based on "sufficient credible

evidence . . . in the record." Ibid. (quoting Russo, supra, 333

36 A-2728-14T1

N.J. Super. at 137). Moreover, this court owes deference to the

trial judge's "feel for the case" because he or she had the

opportunity to "observe and hear the witnesses as they

testified." Ibid. (quoting Russo, supra, 333 N.J. Super. at

137).

At the hearing on defendant's motion for a new trial,

defense counsel emphasized the incongruity in the Criminal

Division Manager's decision. Although the trial judge believed

the decision to approve the 5A was based on supplemental

information, this proved to be incorrect. Ultimately, the judge

was unable to reconcile the Criminal Division Manager's position

with the uncontested, salient facts. Despite this, the judge

denied defendant's motion for a new trial, finding defendant had

not been prejudiced by the denial of counsel. On this record,

we are satisfied defendant is entitled to a new trial under Rule

3:20-1.

We hold the trial court violated defendant's constitutional

right to counsel at every critical stage of the criminal

process. See State v. Scoles, 214 N.J. 236, 258 (2013)

(citation omitted) (quotation marks omitted). This

constitutional violation tainted the entirety of the

proceedings. On this basis alone, there is more than sufficient

37 A-2728-14T1

grounds to conclude the trial court erred in denying defendant's

motion for a new trial under Rule 3:20-1.

The judiciary's responsibilities to determine a criminal

defendant's eligibility for taxpayer-funded representation are

not merely ministerial. Criminal trial judges are uniquely

positioned to monitor how our commitment to the right to counsel

is honored on a daily basis. No system is perfect. When the

Criminal Division Manager denies a defendant's 5A application

based on an insufficient basis to establish indigency, the trial

judge should assign temporary counsel, as Rule 3:4-2(b) now

provides, and inform the defendant of his or her right to have

the application reviewed by the Assignment Judge or a judge

designated under N.J.S.A. 2A:158A-15.1. No denial of a 5A

application is final until the Assignment Judge or "his

designated judge" makes a final decision. Ibid.

Our State's commitment to preventing poverty from

undermining the right to counsel in criminal trials has deep

roots. See State ex rel. P.M.P., 200 N.J. 166, 174 (2009)

(citing State v. Sanchez, 129 N.J. 261, 274–75 (1992)) ("New

Jersey has provided counsel for indigent defendants since

1795."). Indeed, "[h]istorically, the guarantee of the right to

counsel in the New Jersey Constitution antedates the adoption of

the Sixth Amendment." Sanchez, supra, 129 N.J. at 274. This

38 A-2728-14T1

case marks a regrettable deviation from this honorable

tradition. This case illustrates how a series of systemic

failures circumvented the failsafe protocols established by the

Legislature and the Supreme Court to ensure that impecuniosity

will never deprive a person facing criminal prosecution of the

right to be represented by competent counsel at every critical

stage of the proceedings.

V

The record shows the trial judge believed the Supreme

Court's decision in King, supra, 210 N.J. 2, required him to

grant defendant's decision to represent himself. In the judge's

own words: "A new case came down that said I can't stop somebody

from representing themselves even if it's a bad idea for them."

We conclude the judge misunderstood the Court's holding in King.

A brief review of the facts in King is necessary to give this

discussion context. Defendant Marcus King was indicted on three

counts of first degree robbery, N.J.S.A. 2C:15-1. King, supra,

210 N.J. at 8. He was represented by an attorney up to the day

of trial. See id. at 10. On the day of trial, "shortly before

the trial was scheduled to begin[,]" King appeared with his

attorney who informed the trial judge that his client wanted to

represent himself. Ibid.

39 A-2728-14T1

Despite King's clear and lucid acknowledgment of the perils

of self-representation, and his unequivocal desire to proceed

without an attorney, the trial judge refused to honor his waiver

of the right to counsel. Id. at 14. As the Supreme Court

noted:

After listening to [the] defendant's

responses to the various questions posed to

him, the trial court proceeded to rule on

the application. The trial court stated

that it was not "satisfied" that defendant

"fully under[stood] the nature and

consequences of this decision." It pointed

to the fact that defendant was unable to

state what he had written down while doing

research in the law library a few days ago

and could not adequately answer the court's

questions about the court rules or the

evidence rules. The court found that

defendant's "inability to do that" precluded

an intelligent waiver of his right to

counsel.

[Ibid.]

Relying on long-established precedent from the United

States Supreme Court, our Supreme Court reaffirmed that "[t]he

right to defend is personal. The defendant, and not his lawyer

or the State, will bear the personal consequences of a

conviction. It is the defendant, therefore, who must be free

personally to decide whether in his particular case counsel is

to his advantage." Id. at 17 (quoting Faretta v. Cal., 422 U.S.

806, 834, 95 S. Ct. 2525, 2540–41, 45 L. Ed. 2d 562, 581

(1975)). It is clear to us that the key underlying principle at

40 A-2728-14T1

stake in King was the right of self-determination. In our view,

the Court in King admonished judges to guard against

paternalistic tendencies that usurp an adult defendant’s right

to choose his or her own path, and to honor a defendant's right

to make an informed and intelligent decision to waive a

constitutional right, even if that decision may be fraught with

latent perils and ultimately proven to be unwise. King, supra,

210 N.J. at 21.

Here, the record does not indicate defendant ever sought to

waive his constitutional right to counsel. Defendant's repeated

attempts to qualify for representation by the Public Defender's

Office were indisputable proof that he wanted legal

representation. This case represents the polar opposite of

King. Here, the judge was not overly protective. Here, the

judge failed to take the measures required under both the PDA

and the United States and New Jersey Constitutions to ensure

defendant's right to counsel was not denied by administrative

oversight.

Reversed and remanded for a new trial. We do not retain

jurisdiction.

41 A-2728-14T1