a. A person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes he:
(1)Harbors or conceals the other;
(2)Provides or aids in providing a weapon, money, transportation, disguise or other means of avoiding discovery or apprehension or effecting escape;
(3)Suppresses, by way of concealment or destruction, any evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence, which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(4)Warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law;
(5)Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
(6)Aids such person to protect or expeditiously profit from an advantage derived from such crime; or
(7)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a crime of the second degree or greater, unless the actor is a spouse, parent or child of the person aided, in which case the offense is a crime of the fourth degree. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
b.A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes, he:
(1)Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(2)Prevents or obstructs by means of force or intimidation anyone from performing an act which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(3)Prevents or obstructs by means of force, intimidation or deception any witness or informant from providing testimony or information, regardless of its admissibility, which might aid in his discovery or apprehension or in the lodging of a charge against him; or
(4)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16).
The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.
L.1978, c.95; amended 1981, c.290, s.29; amended 1999, c.297.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court
Monday, October 6, 2008
2C:29-2b Eluding
b. Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L.1995, c.401 (C.12:7-71), on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. In addition to the penalty prescribed under this subsection or any other section of law, the court shall order the suspension of that person's driver's license, or privilege to operate a vessel, whichever is appropriate, for a period of not less than six months or more than two years.
In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a driver's or vessel operator's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving or vessel operating privileges, whichever is appropriate, in this State.
For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.
L.1978, c.95; amended 1979, c.178, s.57; 1981, c.290, s.28; 1989, c.84; 1991, c.341, s.3; 1993, c.219, s.5; 1995, c.401, s.54; 2000, c.18, s.2.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a driver's or vessel operator's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving or vessel operating privileges, whichever is appropriate, in this State.
For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.
L.1978, c.95; amended 1979, c.178, s.57; 1981, c.290, s.28; 1989, c.84; 1991, c.341, s.3; 1993, c.219, s.5; 1995, c.401, s.54; 2000, c.18, s.2.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
2C:29-2b Eluding
b. Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L.1995, c.401 (C.12:7-71), on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. In addition to the penalty prescribed under this subsection or any other section of law, the court shall order the suspension of that person's driver's license, or privilege to operate a vessel, whichever is appropriate, for a period of not less than six months or more than two years.
In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a driver's or vessel operator's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving or vessel operating privileges, whichever is appropriate, in this State.
For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.
L.1978, c.95; amended 1979, c.178, s.57; 1981, c.290, s.28; 1989, c.84; 1991, c.341, s.3; 1993, c.219, s.5; 1995, c.401, s.54; 2000, c.18, s.2.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a driver's or vessel operator's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving or vessel operating privileges, whichever is appropriate, in this State.
For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.
L.1978, c.95; amended 1979, c.178, s.57; 1981, c.290, s.28; 1989, c.84; 1991, c.341, s.3; 1993, c.219, s.5; 1995, c.401, s.54; 2000, c.18, s.2.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
Wednesday, September 24, 2008
Lawrence DeNike v. Michael Cupo (A-61-07)
SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Lawrence DeNike v. Michael Cupo (A-61-07)
Argued May 6, 2008 -- Decided September 24, 2008
RABNER, C.J., writing for a unanimous Court.
This appeal considers a sitting judge’s exploration of future employment opportunities with an attorneyappearing before the judge. In addition, the Court addresses generally the issue of post-retirement employment discussions by sitting judges.
Plaintiff Lawrence DeNike and defendant Michael Cupo were the sole members of Classic Mortgage, LLC (Classic). They operated the business for a number of years and eventually had a falling out. After they tried unsuccessfully to mediate their dispute, DeNike filed a lawsuit in July 2003 seeking to terminate and acquire Cupo’s interest in the company. Cupo counterclaimed. Both parties sought primarily the same relief: calculation of the fair value of Cupo’s interest so that DeNike could buy out Cupo’s interest.
The Honorable Gerald C. Escala, then Judge of the Superior Court and Presiding Judge of the Chancery Division, oversaw two-and-a-half years of hard-fought litigation in this matter. DeNike retained Thomas J. Herten of the law firm Herten Burstein to represent him. After a five-day bench trial in February and March 2005, the trial judge ruled that DeNike would acquire Cupo’s interest at fair market value. The court rejected each side’s valuation expert and appointed William Morrison to calculate the value of Cupo’s interest. The trial court then issued a supplemental decision directing DeNike to purchase Cupo’s interest in Classic for the net amount of $436,682.
As directed, DeNike submitted a proposed form of order on January 3, 2006; Cupo objected and submitted his own proposed order. On January 11, 2006, the court entered an order affirming that $436,682 was owed to Cupo. Both parties filed motions, and the court issued its second supplemental decision on January 20, 2006. In that ruling, the trial judge agreed with Cupo and noted that it erred regarding the expert’s calculations. As a result, Cupo was due $493,271. On January 24, 2006, one day after receiving a copy of the court’s latest decision, Herten, DeNike’s attorney, visited Judge Escala in chambers and asked about his retirement plans. Herten was aware of Judge Escala’s mandatory retirement date of February 24, 2006, and asked whether he would consider joining Herten’s law firm. The judge replied that he was open to considering the firm but wanted an independent “of counsel” type relationship. A day or two later, Herten, after speaking with his partners, advised the judge by telephone that it would probably take several days to analyze the projected overhead expenses and that he would get back to him.
Meanwhile on January 26, 2006, Cupo submitted a proposed from of order and promissory note as directed by Judge Escala’s January 20 second supplemental decision. Cupo raised other issues and again asked the court to address a $98,530 adjustment for taxes Cupo claimed he had already paid. Five days later, DeNike’s counsel objected and submitted an alternate proposed order and note. The dueling sets of forms had certain apparent differences. On February 1, 2006, Judge Escala adopted DeNike’s proposed form of order, modifying it in two respects, in effect denying Cupo’s motion to award the additional $98,530 adjustment for taxes.
Later the same day, after DeNike received a copy of the final judgment, Herten spoke with Judge Escala by telephone. Herten told the judge the firm had not completed its analysis but that whatever financial arrangement the firm proposed could be adjusted later to insure that it was satisfactory to both sides. Two days later, on February 3, 2006, Herten visited Judge Escala in his chambers, and the two agreed in principle to the judge joining the firm. They left the financial terms to be determined in the future. At a retirement dinner that night, Judge Escala announced his intention to join Herten Burstein upon retirement. He joined the firm on February 27, 2006.
After learning of Judge Escala’s announcement, Cupo moved to vacate the final judgment and sought a new trial. Cupo questioned the judge’s conduct in negotiating with the Herten firm and claimed the relationship could have influenced the outcome of the case. By this time, the case had been transferred from Bergen to Passaic County, where the Assignment Judge assigned the matter to himself. Before ruling on the motion to vacate, the Assignment Judge invited Cupo to seek reconsideration of any issue that might properly have been raised before Judge Escala. The Assignment Judge also granted Cupo the opportunity to cross-examine Herten and, if necessary, to question Judge Escala. Cupo declined both offers, and neither party sought reconsideration of the final judgment. The Assignment Judge denied Cupo’s motion to vacate the judgment, concluding, in part that although Judge Escala should have handled matters differently, all the court had left to do was the “ministerial act of formalizing in a written Order that which was decided” earlier. That is, at that point no substantive matters remained.
Cupo appealed and the Appellate Division affirmed the Assignment Judge’s denial of the motion to vacate judgment. The panel agreed with the Assignment Judge that Judge Escala should have handled matters differently, but concluded that “there was no actual appearance of impropriety” and that “[n]o person could reasonably believe that the judge had been biased, less than impartial, or unfair in conducting this trial.”
The Supreme Court granted Cupo’s petition for certification.
HELD: Judges must avoid actual conflicts as well as the appearance of impropriety to promote confidence in the integrity and impartiality of the Judiciary. Unfortunately, the negotiations between trial judge and lawyer in this case created an appearance of impropriety. Stated simply, the conduct here fell short of the high standards demanded of judges and fellow members of the legal profession and had the capacity to erode the public’s trust. Because any lesser remedy would allow reasonable doubts to linger about the fairness of the outcome of the case, the judgment of the Appellate Division is reversed and the matter is remanded for a new trial.
1. Certain core, ethical precepts provide the proper backdrop to this case. They include the bedrock principle articulated in Canon 1 of the Code of Judicial Conduct that “[a]n independent and honorable judiciary is indispensable to justice in our society.” Canon 2(A) requires that judges are to “act at all times in a manner that promotes public confidence,” and, as stated in the commentary, “must avoid all impropriety and appearance of impropriety.” Judges must avoid acting in a biased way or in a manner that may be perceived as partial. (Pp. 13-14)
2. Rule 1:18 obligates every judge to abide by the Rules of Professional Conduct and the Code of Judicial Conduct. Paraphrasing RPC 1.12(c), a judge shall not negotiate for employment with any person who is involved as a party or as an attorney for a party in a matter in which the judge is participating personally and substantially. There is no room for dispute that by overseeing the lengthy litigation in this matter, Judge Escala was participating “personally.” Also, although in certain instances entry of judgment may constitute a ministerial act that does not involve the exercise of discretion, the facts in this case do not support the application of that principle. After January 24, 2006, when Herten broached the topic of employment with Judge Escala, the parties were still at odds over the terms of the final order and the court was “substantially” engaged in the proceedings. As a result, the discussions between Judge Escala and Herten that began on January 24, 2006 violated the express terms of RPC 1.12(c). (Pp. 14-16)
3. Other rules that address the subject of disqualification reinforce the Court’s conclusion that it was error for the trial judge and plaintiff’s counsel to engage in employment discussions while the instant litigation was still pending. Among these are Canon 3(C)(1) of the Code of Judicial Conduct and Rule 1:12-1(f). Although the Court agrees with the Assignment Judge and the Appellate Division that no evidence in the record shows Judge Escala conducted the trial or post-trial proceedings in a biased or unfair way, the Court believes that a reasonable, fully informed person may have doubts about the judge’s impartiality. Accordingly, the Court finds that Judge Escala and Herten’s employment discussions on and after January 24, 2006 created an appearance of impropriety that required disqualification under Canon 3(C)(1) and Rule 1:12-1(f). This additional, alternative finding in no way undermines the Court’s conclusion regarding RPC 1.12(c), which prohibited negotiations outright in this case. That said, the Court finds no support in the record for Cupo’s claim that Judge Escala should have recused himself before the January 24, 2006 conversation. (Pp. 16-19)
4. While there is no evidence that the trial judge acted out of actual bias in favor of the Herten firm, the appearance of impropriety generated by the employment negotiations and the prospect of a financial relationship raises doubts about those decisions and the judge’s impartiality in general. Regrettably, from the standpoint of a knowledgeable, objective observer, the brief negotiations toward the end of the litigation could reasonably have infected all that occurred beforehand. As a result, a full retrial is required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice. (Pp. 19-21)
5. All New Jersey judges face mandatory retirement at age seventy and many choose to practice law in the private sector when they retire from public service, subject, of course, to the Guidelines on the Practice of Law by Retired Judges, Administrative Directive # 5-08 (March 24, 2008). The safest course for judges who wish to avoid overstepping any boundaries or raising an appearance of impropriety would be to wait until after retirement to seek employment. But our rules do not require that approach, and the Court recognizes that it can be impractical for various personal and professional reasons. Because of the importance and sensitivity of questions regarding postretirement employment discussions, some additional guidance may be helpful. First, judges may not discuss or negotiate for employment with any parties or attorneys involved in a matter in which the judge is participating personally and substantially. If the subject is raised in any fashion, judges should put a halt to the conversation at once, rebuff any offer, and disclose what occurred on the record. Second, judges who engage in retirement discussions while still on the bench – with attorneys who do not have a matter pending before them – must proceed in a way that minimizes the need for disqualification and upholds the integrity of the courts. To that end, judges should delay starting any discussions until shortly before their planned retirement, and should discuss postretirement employment opportunities with the fewest possible number of prospective employers. Third, judges must
disqualify themselves from matters involving parties or attorneys with whom they have discussed future
employment, whether or not those discussions lead to a future relationship. Fourth, judges should wait a reasonable period of time before discussing employment with an attorney or law firm that has appeared before the judge. In addition to these general guidelines, the Court refers the matter to the Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activities for their recommendations. (Pp. 21-25)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial
consistent with this opinion.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in
CHIEF JUSTICE RABNER’s opinion.
SUPREME COURT OF NEW JERSEY
A-61 September Term 2007
LAWRENCE DENIKE, Individually
and as a member of CLASSIC
MORTGAGE, LLC, a New Jersey
Limited Liability Company,
Plaintiff-Respondent,
v.
MICHAEL CUPO,
Defendant-Appellant.
Argued May 6, 2008 – Decided September 24, 2008
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 394 N.J. Super. 357 (2007).
James F. Keegan argued the cause for
appellant (Bendit Weinstock, attorneys; Mr.
Keegan, Barrett F. Kalb and Sherri Davis
Fowler, on the briefs).
Thomas J. Herten argued the cause for
respondent (Herten, Burstein, Sheridan,
Cevasco, Bottinelli, Litt & Harz, attorneys;
Mr. Herten and Daniel Y. Gielchinsky, on the
brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
The Judiciary derives its authority from the State
Constitution but earns the public’s confidence through acts of unquestioned integrity. When that trust is shaken – even 2 slightly -- our system of justice falters. To guard against that outcome, we now address an area fraught with peril: a sitting judge’s exploration of future employment opportunities.
In this case, a lawyer approached a trial judge and asked if he would consider affiliating with the attorney’s firm upon retirement. In response, the judge began preliminary negotiations with the lawyer. Throughout the brief period of their discussions, the lawyer was handling a contested, pending matter before the judge.
That behavior plainly violated RPC 1.12(c), which directs that a judge “shall not negotiate for employment with any person who is involved as a party or as an attorney for a party in a matter in which the [judge] is participating personally and substantially.” The attorney should have waited a reasonable period of time after the case ended before broaching the subject of employment. Absent such a break in time, the trial judge should have halted discussions immediately, disclosed them on the record, and allowed the parties to evaluate the need for any further relief.
Judges must avoid actual conflicts as well as the
appearance of impropriety to promote confidence in the integrity and impartiality of the Judiciary. Unfortunately, the negotiations between trial judge and lawyer in this case created an appearance of impropriety. Stated simply, the conduct here fell short of the high standards demanded of judges and fellow members of the legal profession and had the capacity to erode the public’s trust.
Because any lesser remedy would allow reasonable doubts to linger about the fairness of the outcome of the case, we reverse the judgment of the Appellate Division and remand for a new trial.
I.
Plaintiff Lawrence DeNike and defendant Michael Cupo were the sole members of Classic Mortgage, LLC (Classic), a company that brokered residential mortgages. They operated the business for a number of years and eventually had a falling out. After they tried unsuccessfully to mediate their dispute, DeNike filed a lawsuit in July 2003 seeking to terminate and acquire Cupo’s interest in the company. Cupo counterclaimed. Both parties sought primarily the same relief: calculation of the fair value of Cupo’s interest in Classic so that DeNike could buy out Cupo’s interest.
The Honorable Gerald C. Escala, then Judge of the Superior Court and Presiding Judge of the Chancery Division, oversaw two and-a-half years of hard-fought litigation in this matter. DeNike retained Thomas J. Herten, of the law firm Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, to represent him.
About two weeks after the lawsuit started, the trial judge issued an order directing that: (1) Cupo be deemed dissociated from Classic as of July 18, 2003; and (2) DeNike make a partial payment of $250,000 to Cupo without prejudice to a final ruling on the value of his interest in the company. The trial judge later set December 31, 2002 as the valuation date for calculating Cupo’s interest.
After a five-day bench trial in February and March 2005, the trial judge made various factual findings and ruled that DeNike would acquire Cupo’s interest at fair market value. The court rejected each side’s valuation expert and appointed William Morrison to calculate the value of Cupo’s interest. To do so, Morrison would have to determine the value of the business and make intricate adjustments for commissions received, overhead costs, monthly management fees due DeNike, and the $250,000 payment, among other items. Morrison would also have to recalculate and adjust the parties’ capital accounts.
Months later, in December 2005, Morrison testified about his findings, subject to cross-examination. The trial court then issued a supplemental decision directing DeNike to purchase Cupo’s interest in Classic for the net amount of $436,682.
As directed, DeNike submitted a proposed form of order on January 3, 2006; Cupo objected and submitted his own proposed order. Specifically, Cupo requested that judgment be entered against DeNike both individually and in his capacity as a member of Classic, jointly and severally; that DeNike not be permitted to pay in installments over five years; and that the court address whether it had considered a $98,530 adjustment for taxes Cupo reportedly paid, on monies he would no longer receive because of an adjustment to his capital account. Cupo also argued that the net amount due him was $493,271, not $436,682,relying on a different figure Morrison had used to adjust the
capital accounts.
On January 11, 2006, the court entered an order affirming that $436,682 was owed to Cupo. The following day, the court invited both parties to submit motions to address the error Cupo had raised about the net amount due as well as the proper payment schedule. Both parties filed motions, and the court issued its second supplemental decision on January 20, 2006. In that ruling, the trial judge agreed with Cupo and noted that it erred regarding the expert’s calculations.
As a result, Cupo was due $493,271. As for the manner of payment, the court ruled that a five-year payment period was appropriate, and that the obligation belonged to the company, not DeNike individually.
On January 24, 2006, one day after receiving a copy of the court’s latest decision, DeNike’s attorney, Thomas Herten, visited Judge Escala in chambers and asked about his retirement plans. (We rely on a certification Herten later submitted to the court for that fact and the related statements that follow.) Herten was aware of Judge Escala’s mandatory retirement date of February 24, 2006, and asked whether he would consider joining Herten’s law firm. The judge replied that he was open to considering the firm but wanted an independent “of counsel” type relationship. Because of the expenses involved in such a relationship, Herten responded that he would discuss the matter with his partners.
Herten met with his partners the next day, January 25, and they agreed to investigate the potential overhead costs of Judge Escala joining the firm. Either that same day or the next, Herten spoke with the judge by telephone and told him it would probably take several days to analyze the projected overhead expenses and get back to him.
Meanwhile on January 26, 2006, Cupo submitted a proposed form of order and promissory note as directed by the trial judge’s January 20 second supplemental decision. In a cover letter, Cupo also sought to raise two issues about the promissory note, which the second supplemental decision had addressed. First, while the decision and draft promissory notes provided for annual payments at the judgment rate set by Rule 4:42-11, Cupo argued for quarterly installments with interest at the prime rate, based on the company’s Operating Agreement.
Second, Cupo once again asked the court to address the $98,530 adjustment for taxes Cupo claimed he had already paid.
Five days later, on January 31, 2006, DeNike’s counsel
objected and submitted an alternate proposed order and note. Herten wrote that Cupo’s proposed forms “greatly exceed the scope of Your Honor’s Second Supplemental Decision dated January 20, 2006 and the terms of the [LLC’s] Operating Agreement.” In particular, Herten complained that “[v]arious terms of the proposed Promissory Note . . . are so unilateral that the proposed note would never be executed in a negotiated transaction.” According to Herten, those “terms are either not provided for in the Operating Agreement, or directly contrary to the terms of the Operating Agreement.” Herten asked the judge to exercise his “discretion to execute the enclosed Order”
instead.
The dueling sets of forms had certain apparent differences. Cupo’s proposed order allowed for the option of one lump sum payment or payment in installments, while DeNike’s provided for installment payments only. Regarding the promissory notes, among other points, Cupo’s called for a five percent late fee on payments more than fifteen days late, and DeNike’s did not; Cupo’s allowed the note to be accelerated and become immediately due and payable if any payment was thirty days late, while DeNike’s provided for written notice and an opportunity to cure a default within fifteen days; and Cupo’s allowed the note to be assigned, while DeNike’s expressly prohibited assignment.
On February 1, 2006, the judge adopted DeNike’s proposed form of order and modified it in two ways: (1) he directed Classic to deliver “a promissory note” to Cupo within ten days but declined to endorse either note the parties had submitted; and (2) he inserted a handwritten paragraph explaining that he set the interest rate at the judgment rate “to recognize the effect of the ‘advance’ payment of $250,000 . . . and the fact that the matter was litigated.” By signing the order, the court denied Cupo’s motion to award the additional amount of $98,530.
Later that same day, after receiving a copy of the final judgment, Herten spoke with Judge Escala by telephone. Herten told the judge the firm had not completed its analysis but that whatever financial arrangement the firm proposed could be adjusted later to insure that it was satisfactory to both sides.
Two days after, on February 3, 2006, Herten visited Judge Escala in his chambers, and the two agreed in principle to the judge joining the firm. They left the financial terms to be determined in the future. At a retirement dinner that night, Judge Escala announced his intention to join Herten Burstein upon retirement. He joined the firm on February 27, 2006.
After learning of Judge Escala’s announcement, Cupo moved to vacate the final judgment and sought a new trial. Cupo questioned the judge’s conduct in negotiating with the Herten firm and claimed the relationship could have influenced the outcome of the case. By this time, the case had been transferred from Bergen to Passaic County, where the Assignment Judge assigned the matter to himself.
Before ruling on the motion, the Assignment Judge invited Cupo to seek reconsideration of any issue that might properly have been raised before Judge Escala. The Assignment Judge also granted Cupo the opportunity to cross-examine Herten and, if necessary, to question Judge Escala. Cupo declined both offers, and neither party sought reconsideration of the final judgment.
The Assignment Judge recounted the lengthy history of the case and remarked to Herten that, “in retrospect, had you thought it out, you could have handled it a lot more delicately. . . . You created the situation, and now it snowballed into something that appears to have some impropriety to it.” The Assignment Judge added that it would have been a better exercise of discretion if Herten had waited to approach Judge Escala and if the judge had immediately disclosed his conversations with
Herten. “[H]indsight being 20/20,” the Assignment Judge
observed, the trial judge “should have done it differently.”
Nonetheless, the Assignment Judge found that the conduct did not violate any canon of ethics, noting that the only task remaining for the court after negotiations had begun was the “ministerial act of formalizing in a written Order that which was decided” earlier. As a result, the Assignment Judge denied Cupo’s motion to vacate the judgment.
Cupo appealed, and the Appellate Division affirmed the
Assignment Judge’s denial of the motion to vacate judgment.
DeNike v. Cupo, 394 N.J. Super. 357 (App. Div. 2007). Echoing the Assignment Judge, the panel found that Judge Escala “should not have begun negotiations with the Herten firm before completely concluding this matter, and minimally should have revealed to defendant the contact that was made by plaintiff’s attorney as soon as it occurred.” Id. at 376. However, the panel concluded that “there was no actual appearance of impropriety” and that “[n]o person could reasonably believe that the judge had been biased, less than impartial, or unfair in conducting this trial.” Id. at 373.
In making that determination, the Appellate Division
rejected Advisory Opinion No. 84 of the Committee on Codes of Conduct -- which provides that a “judge should not explore employment opportunities with a law firm which has appeared before the judge until the passage of a reasonable interval” -- finding it pertains only to federal judges. Id. at 373-74. The panel also distinguished Pepsico, Inc. v. McMillen, 764 F.2d 458 (7th Cir. 1985), because it involved employment negotiations that occurred prior to trial. DeNike, supra, 394 N.J. Super. At 374.
The Appellate Division also focused on Judge Escala’s
actions in the case after he started negotiating with Herten. The panel found that those negotiations occurred after the trial judge had issued his second supplemental decision and rendered all substantive decisions in the case. Id. at 374-76. The only task remaining for the judge, according to the panel, “was the ministerial act of adopting the form order drafted by plaintiff’s attorney with only a few minor editorial changes.”
Id. at 375. In doing so, the judge refused to endorse either form of promissory note before him. Id. at 374.
In the end, the panel agreed that Judge Escala “should have handled this situation differently,” but noted that “[i]f there is to be any . . . regulatory restriction [on post-retirement employment], it must come from the Supreme Court.” Id. at 375. In the remainder of its opinion, the Appellate Division addressed various other issues, affirming in part, reversing in part, and remanding in part. In short, the panel concluded that, pursuant to N.J.S.A. 42:2B-39, the correct valuation date was July 18, 2003, the date Cupo was deemed dissociated from Classic, and not December 31, 2002, DeNike, supra, 394 N.J. Super. at 381; that the trial court properly valued Cupo’s interest, id. at 382-83, 387; and that the trial court did not err in equalizing the parties’ capital accounts, id. at 384, denying Cupo a credit for taxes paid, id. at 385, denying prejudgment interest to Cupo, id. at 385-86, or allowing payments to be made over a period of five years, id. at 386.
The panel deferred to the trial judge’s credibility findings in reaching its decision. Id. at 383-84.
We granted Cupo’s petition for certification. 192 N.J. 598
(2007).
II.
Cupo argues that Judge Escala created an appearance of
impropriety by negotiating for employment with Herten; that
litigants and the public might be concerned that bias infected the court’s decisions; that the Appellate Division failed to distinguish between actual and apparent impropriety; that established principles of New Jersey law, including RPC 1.12(c), prohibited the trial judge from having employment discussions with Herten while the case was pending; and that after negotiations had begun, there were still unfinished tasks requiring the exercise of Judge Escala’s discretion. Cupo maintains that because the negotiations provide fair reason to question the trial judge’s objectivity and fairness, a new trial is warranted.
Conversely, DeNike argues that the Appellate Division
correctly found there was no appearance of impropriety; that the negotiations took place only after the court completed all substantive decisions; that the execution of a final judgment was but a ministerial act; that federal law and advisory opinions are inapplicable; that Cupo’s position is based on speculation and subjective beliefs; and that any limitations on post-retirement employment negotiations imposed by this Court should only be applied prospectively.
III.
Certain core, ethical precepts provide the proper backdrop to this case. They include the bedrock principle articulated in Canon 1 of the Code of Judicial Conduct that “[a]n independent and honorable judiciary is indispensable to justice in our society.” To that end, judges are required to maintain, enforce, and observe “high standards of conduct so that the integrity and independence of the judiciary may be preserved.” Ibid.
Judges are to “act at all times in a manner that promotes public confidence,” id. Canon 2(A), and “must avoid all impropriety and appearance of impropriety,” id. commentary on Canon 2 (emphasis added). Indeed, as this Court recognized nearly a half century ago, “‘justice must satisfy the appearance of justice.’” State v. Deutsch, 34 N.J. 190, 206 (1961)(quoting Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11, 16 (1954)). That standard requires judges to “refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question.” Ibid. In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial. To demand any less would invite questions about the impartiality of
the justice system and thereby “threaten[] the integrity of our judicial process.” State v. Tucker, 264 N.J. Super. 549, 554 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).
A.
Rule 1:18 obligates every judge to abide by the Rules of Professional Conduct and the Code of Judicial Conduct. See also R. 1:14. We start with the Rules of Professional Conduct, which contain straightforward guidance applicable to this case. RPC 1.12(c) provides:
A lawyer shall not negotiate for employment
with any person who is involved as a party
or as an attorney for a party in a matter in
which the lawyer is participating personally
and substantially as a judge or other
adjudicative officer, arbitrator, mediator,
or other third-party neutral.
The rule is clearer still when its focus is placed only on
judges: A judge shall not negotiate for employment with any
person who is involved as a party or as an attorney for a party in a matter in which the judge is participating personally and substantially.
There is no room for dispute that by overseeing the lengthy litigation in this matter, Judge Escala was participating “personally.” DeNike argues that after employment negotiations began, the judge’s actions were purely ministerial, and by inference not “substantial.” All that remained, DeNike contends, was the non-discretionary act of entering a final judgment in the case.
To be sure, in certain instances, entry of judgment may constitute a ministerial act that does not involve the exercise of discretion. See Parker v. Parker, 128 N.J. Super. 230, 232- 33 (App. Div. 1974) (noting that entry of judgment was nondiscretionary when trial judge made definitive adjudication of controversy, granted parties divorce, and plaintiff died before judgment was formally entered); see also Fazilat v. Feldstein, 180 N.J. 74, 81-82 (2004) (commenting that trial court in Black
v. Walker, 295 N.J. Super. 244, 252 (App. Div. 1996), entered order against decedent’s estate “likely because all but the ministerial act of executing the order had been carried out” before his death).
Here, though, the facts do not support the principle DeNike advances. After January 24, 2006, when Herten broached the topic of employment with Judge Escala, the parties were still at odds over the terms of the final order. As detailed above in section I, the parties submitted dueling forms of order, each with its own, distinct promissory note. The notes differed as to late fees, default provisions, assignability, and other terms.
In addition, Cupo’s submission raised questions about
quarterly installments and the interest rate to be used.
Herten’s order was accompanied by a cover letter to Judge Escala dated January 31 -- a week after employment negotiations began - in which Herten asked the judge to reject Cupo’s submission and exercise “discretion” to execute Herten’s order.
Judge Escala did just that. He also explained in writing why he adopted the post-judgment rate of interest, which Cupo had challenged days earlier. While the trial judge chose not to endorse either promissory note, by doing so he effectively heeded Herten’s request not to use his adversary’s form. One could argue that entry of an uncontested form of judgment, after a final, definitive ruling in a case, does not constitute “substantial” participation at the time the order is entered. But when a court explains a prior ruling while deciding between competing submissions and positions, it is still “substantially” engaged. As a result, the discussions
between Judge Escala and Herten that began on January 24, 2006 violated the express terms of RPC 1.12(c).
B.
Other rules that address the subject of disqualification reinforce our conclusion that it was error for the trial judge and plaintiff’s counsel to engage in employment discussions while the instant litigation was still pending. Canon 3(C)(1) of the Code of Judicial Conduct provides that “[a] judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”
Similarly, Rule 1:12-1(f) directs judges not to
sit in any matter “when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.”
We agree with the Assignment Judge and the Appellate
Division that no evidence in the record shows Judge Escala
conducted the trial or post-trial proceedings in a biased or unfair way. To be clear, though, “it is not necessary to prove actual prejudice on the part of the court” to establish an appearance of impropriety; an “objectively reasonable” belief that the proceedings were unfair is sufficient. State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Those principles give rise to the following standard:
Would a reasonable, fully informed person have doubts about the judge’s impartiality? We believe so for a number of reasons. First, based on the timing of the negotiations toward the close of the case, an objective observer might reasonably wonder whether Judge Escala favored the Herten firm either consciously or unconsciously. That concern would not be present had the negotiations started a reasonable period of time after the case ended. Because discussions began just days after the second supplemental decision, and in the midst of arguments over the shape of the final judgment, the public has reason to lack
confidence in the integrity of the process and its outcome.
Second, a judge simply cannot have a prospective financial relationship with one party and expect to persuade the other, or the public, that the court can nevertheless fairly assess the case. See Pepsico, supra, 764 F.2d at 461 (finding appearance of partiality requiring recusal when headhunter mistakenly contacted parties, on behalf of federal trial judge, before trial was to begin). Indeed, any sort of employment negotiations with a party -- “preliminary, tentative, indirect, unintentional, [or] ultimately unsuccessful” -- right before or during a pending matter, reasonably call into question a judge’s
impartiality. Ibid.
Instead of pursuing Herten’s entreaty, Judge Escala should have put an immediate halt to the first conversation and disclosed it on the record. DeNike, once again, argues that no reasonable person could question the proceedings because as of January 24, 2006, the case had been fully resolved with only ministerial acts left to be addressed. But, as discussed previously, the record reveals otherwise.
In addition, the timing of Herten’s approach -- so
soon after the court’s January 20 ruling, in a matter that
spanned two-and-one-half years of intensely fought litigation -- invites doubts about the trial judge’s partiality. See In re Continental Airlines Corp., 901 F.2d 1259, 1262 (5th Cir. 1990)(finding that close coupling of trial judge’s rulings – from May 8 through July 1, 1986 -- with party’s employment offer on July 2, 1986 and judge’s acceptance on July 29, 1986, created appearance issues warranting recusal).
Accordingly, we find that Judge Escala and Herten’s
employment discussions on and after January 24, 2006 created an appearance of impropriety that required disqualification under Canon 3(C)(1) and Rule 1:12-1(f). This additional, alternative finding in no way undermines our conclusion regarding RPC 1.12(c), which prohibited negotiations outright in this case.
That said, we find no support in the record for Cupo’s claim that Judge Escala should have recused himself before the January 24, 2006 conversation.
IV.
What, then, is the appropriate remedy? The Appellate
Division ordered a revised valuation of Cupo’s interest to take into account a new valuation date of July 18, 2003. That task alone requires additional expert analysis and testimony. But more is needed to restore public confidence in the outcome of this case.
During the course of the five-day trial and other
proceedings, Judge Escala was required to make various
credibility determinations and judgment calls. While there is no evidence that he acted out of actual bias in favor of the Herten firm, the appearance of impropriety generated by the employment negotiations and the prospect of a financial
relationship raises doubts about those decisions and the judge’s impartiality in general. Permitting Cupo to cross-examine Herten or question Judge Escala would not sufficiently erase those concerns.
Regrettably, from the standpoint of a knowledgeable,
objective observer, the brief negotiations toward the end of the litigation could reasonably have infected all that occurred beforehand. As a result, a full retrial is required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice. To shorten the proceedings and save resources at the retrial, the parties are encouraged to stipulate to the introduction of any evidence, documentary or testimonial, presented during the first trial.
DeNike contends that it would be unreasonable to apply new ethical restrictions to him retroactively. We do not agree. Because we rely on existing rules and prohibitions set forth in RPC 1.12(c), Canon 3(C)(1), and Rule 1:12-1(f), the relief ordered properly applies to this case.
V.
All New Jersey judges face mandatory retirement at age
seventy, see N.J. Const. art. VI, § 6, ¶ 3, and many choose to practice law in the private sector when they retire from public service, subject, of course, to the Guidelines on the Practice of Law by Retired Judges, Administrative Directive # 5-08 (March 24, 2008), available at www.judiciary.state.nj.us/directive/ 2008/dir_05_08.pdf. Because of the importance and sensitivity of questions regarding post-retirement employment discussions,
some additional guidance may be helpful.
1. To reiterate, under RPC 1.12(c), judges may not discuss or negotiate for employment with any parties or attorneys involved in a matter in which the judge is participating personally and substantially. Similarly, lawyers may not approach a judge to discuss post-retirement employment while such a matter is pending. If the subject is raised in any fashion, judges should put a halt to the conversation at once, rebuff any offer, and disclose what occurred on the record. The judge and all parties can then evaluate objectively whether any further relief is needed.
2. Judges who engage in retirement discussions while still on the bench -- with attorneys who do not have a matter pending before them -- must proceed in a way that minimizes the need for disqualification and upholds the integrity of the courts. Just as judges are required to manage their financial and business dealings to avoid conflicts and divest themselves of investments that “could reasonably . . . require frequent disqualification,” Code of Judicial Conduct, Canon 5(D)(3), they should proceed likewise with employment discussions. To that end, judges should delay starting any discussions until shortly before their planned retirement, and should discuss post-retirement employment opportunities with the fewest possible number of prospective employers. That approach would cause the least amount of disruption to litigants, other judges called upon to handle transferred cases, and the administration of the justice system. We encourage judges to consult with the Assignment Judge or other supervisory judicial officers in this regard.
3. To avoid raising reasonable questions about their
impartiality, judges must disqualify themselves from matters involving parties or attorneys with whom they have discussed future employment. See id. Canon 3(C)(1); Rule 1:12-1(f). For the sake of public confidence, that rule applies with equal force when discussions lead to a future relationship and when they do not.
4. Judges should wait a reasonable period of time before discussing employment with an attorney or law firm that has appeared before the judge. As in other areas, what is “reasonable” depends on the circumstances. At one end of the spectrum, an uncontested matter resolved swiftly by entry of a default judgment would not call for a lengthy interval of time.
Toward the other end, prolonged or particularly acrimonious litigation would caution in favor of a longer delay. Actions likely to result in continuing post-judgment matters would also warrant a lengthier intervening period of time. Obviously, the safest course for judges who wish to avoid overstepping any boundaries or raising an appearance of impropriety would be to wait until after retirement to seek employment. But our rules do not require that approach, and we recognize it can be impractical for various personal and professional reasons.
We also recognize that this important subject would benefit from further study and additional, practical guidance. Accordingly, we refer the matter to the
Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activities for their recommendations.
We ask the Committees to coordinate their efforts.
Advisory Opinion No. 84 of the federal Committee on Codes
of Conduct, entitled Judge’s Pursuit of Post-Judicial
Employment, provides a sensible starting point. That Opinion is binding on federal but not state judges. In reviewing the Opinion, the Committees should consider relevant differences between the federal and state judiciaries. For example, federal judges are appointed for life. U.S. Const. art. III, § 1. They may retire with full benefits upon reaching age sixty-five (or older, depending on years of service on the bench), or opt for senior status and continue serving indefinitely. 28 U.S.C.A. §
371(a)-(c). They may also receive compensation for law-related and extra-judicial activities, not exceeding fifteen percent of their salary in a calendar year. Code of Conduct for United States Judges, Canon 6; 5 U.S.C.A. Appendix, § 501(a).
In contrast, state judges in New Jersey face mandatory retirement at age seventy. N.J. Const. art. VI, § 6, ¶ 3. They may not receive any payment for quasi-judicial activities like teaching or writing about the law while serving as a judge. Code of Judicial Conduct, Canon 6; see also N.J. Const. art. VI, § 6, ¶ 6 (“[Judges] shall not, while in office, engage in . . . other
gainful pursuit.”). As a result, it is not at all uncommon for state judges to pursue employment when they approach mandatory retirement or at a younger age if they step down earlier. Those and other considerations may help inform the Committees’ work.
VI.
As the Assignment Judge aptly noted, the employment
discussions at the heart of this case were a “momentary slip” in
Judge Escala’s unblemished tenure. That brief episode should
not overshadow a lengthy, fine and dedicated career in public
25
service. But the standard of judicial conduct is necessarily
high “so that the integrity and independence of the judiciary
may be preserved.” State v. Clark, 191 N.J. 503, 513 (2007)
(internal quotation marks and citations omitted). The
fundamental need to maintain public confidence in the
impartiality of the judiciary compels the decision reached in
this case.
We reverse the judgment of the Appellate Division and
remand for a new trial consistent with this opinion.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and
HOENS join in CHIEF JUSTICE RABNER’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-61 SEPTEMBER TERM 2007
ON CERTIFICATION TO Appellate Division, Superior Court
LAWRENCE DENIKE, Individually
And as a member of CLASSIC
MORTGAGE, LLC, a New Jersey
Limited Liability Company,
Plaintiff-Respondent,
v.
MICHAEL CUPO,
Defendant-Appellant.
DECIDED September 24, 2008
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST REVERSE AND
REMAND
CHIEF JUSTICE
RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 7
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Lawrence DeNike v. Michael Cupo (A-61-07)
Argued May 6, 2008 -- Decided September 24, 2008
RABNER, C.J., writing for a unanimous Court.
This appeal considers a sitting judge’s exploration of future employment opportunities with an attorneyappearing before the judge. In addition, the Court addresses generally the issue of post-retirement employment discussions by sitting judges.
Plaintiff Lawrence DeNike and defendant Michael Cupo were the sole members of Classic Mortgage, LLC (Classic). They operated the business for a number of years and eventually had a falling out. After they tried unsuccessfully to mediate their dispute, DeNike filed a lawsuit in July 2003 seeking to terminate and acquire Cupo’s interest in the company. Cupo counterclaimed. Both parties sought primarily the same relief: calculation of the fair value of Cupo’s interest so that DeNike could buy out Cupo’s interest.
The Honorable Gerald C. Escala, then Judge of the Superior Court and Presiding Judge of the Chancery Division, oversaw two-and-a-half years of hard-fought litigation in this matter. DeNike retained Thomas J. Herten of the law firm Herten Burstein to represent him. After a five-day bench trial in February and March 2005, the trial judge ruled that DeNike would acquire Cupo’s interest at fair market value. The court rejected each side’s valuation expert and appointed William Morrison to calculate the value of Cupo’s interest. The trial court then issued a supplemental decision directing DeNike to purchase Cupo’s interest in Classic for the net amount of $436,682.
As directed, DeNike submitted a proposed form of order on January 3, 2006; Cupo objected and submitted his own proposed order. On January 11, 2006, the court entered an order affirming that $436,682 was owed to Cupo. Both parties filed motions, and the court issued its second supplemental decision on January 20, 2006. In that ruling, the trial judge agreed with Cupo and noted that it erred regarding the expert’s calculations. As a result, Cupo was due $493,271. On January 24, 2006, one day after receiving a copy of the court’s latest decision, Herten, DeNike’s attorney, visited Judge Escala in chambers and asked about his retirement plans. Herten was aware of Judge Escala’s mandatory retirement date of February 24, 2006, and asked whether he would consider joining Herten’s law firm. The judge replied that he was open to considering the firm but wanted an independent “of counsel” type relationship. A day or two later, Herten, after speaking with his partners, advised the judge by telephone that it would probably take several days to analyze the projected overhead expenses and that he would get back to him.
Meanwhile on January 26, 2006, Cupo submitted a proposed from of order and promissory note as directed by Judge Escala’s January 20 second supplemental decision. Cupo raised other issues and again asked the court to address a $98,530 adjustment for taxes Cupo claimed he had already paid. Five days later, DeNike’s counsel objected and submitted an alternate proposed order and note. The dueling sets of forms had certain apparent differences. On February 1, 2006, Judge Escala adopted DeNike’s proposed form of order, modifying it in two respects, in effect denying Cupo’s motion to award the additional $98,530 adjustment for taxes.
Later the same day, after DeNike received a copy of the final judgment, Herten spoke with Judge Escala by telephone. Herten told the judge the firm had not completed its analysis but that whatever financial arrangement the firm proposed could be adjusted later to insure that it was satisfactory to both sides. Two days later, on February 3, 2006, Herten visited Judge Escala in his chambers, and the two agreed in principle to the judge joining the firm. They left the financial terms to be determined in the future. At a retirement dinner that night, Judge Escala announced his intention to join Herten Burstein upon retirement. He joined the firm on February 27, 2006.
After learning of Judge Escala’s announcement, Cupo moved to vacate the final judgment and sought a new trial. Cupo questioned the judge’s conduct in negotiating with the Herten firm and claimed the relationship could have influenced the outcome of the case. By this time, the case had been transferred from Bergen to Passaic County, where the Assignment Judge assigned the matter to himself. Before ruling on the motion to vacate, the Assignment Judge invited Cupo to seek reconsideration of any issue that might properly have been raised before Judge Escala. The Assignment Judge also granted Cupo the opportunity to cross-examine Herten and, if necessary, to question Judge Escala. Cupo declined both offers, and neither party sought reconsideration of the final judgment. The Assignment Judge denied Cupo’s motion to vacate the judgment, concluding, in part that although Judge Escala should have handled matters differently, all the court had left to do was the “ministerial act of formalizing in a written Order that which was decided” earlier. That is, at that point no substantive matters remained.
Cupo appealed and the Appellate Division affirmed the Assignment Judge’s denial of the motion to vacate judgment. The panel agreed with the Assignment Judge that Judge Escala should have handled matters differently, but concluded that “there was no actual appearance of impropriety” and that “[n]o person could reasonably believe that the judge had been biased, less than impartial, or unfair in conducting this trial.”
The Supreme Court granted Cupo’s petition for certification.
HELD: Judges must avoid actual conflicts as well as the appearance of impropriety to promote confidence in the integrity and impartiality of the Judiciary. Unfortunately, the negotiations between trial judge and lawyer in this case created an appearance of impropriety. Stated simply, the conduct here fell short of the high standards demanded of judges and fellow members of the legal profession and had the capacity to erode the public’s trust. Because any lesser remedy would allow reasonable doubts to linger about the fairness of the outcome of the case, the judgment of the Appellate Division is reversed and the matter is remanded for a new trial.
1. Certain core, ethical precepts provide the proper backdrop to this case. They include the bedrock principle articulated in Canon 1 of the Code of Judicial Conduct that “[a]n independent and honorable judiciary is indispensable to justice in our society.” Canon 2(A) requires that judges are to “act at all times in a manner that promotes public confidence,” and, as stated in the commentary, “must avoid all impropriety and appearance of impropriety.” Judges must avoid acting in a biased way or in a manner that may be perceived as partial. (Pp. 13-14)
2. Rule 1:18 obligates every judge to abide by the Rules of Professional Conduct and the Code of Judicial Conduct. Paraphrasing RPC 1.12(c), a judge shall not negotiate for employment with any person who is involved as a party or as an attorney for a party in a matter in which the judge is participating personally and substantially. There is no room for dispute that by overseeing the lengthy litigation in this matter, Judge Escala was participating “personally.” Also, although in certain instances entry of judgment may constitute a ministerial act that does not involve the exercise of discretion, the facts in this case do not support the application of that principle. After January 24, 2006, when Herten broached the topic of employment with Judge Escala, the parties were still at odds over the terms of the final order and the court was “substantially” engaged in the proceedings. As a result, the discussions between Judge Escala and Herten that began on January 24, 2006 violated the express terms of RPC 1.12(c). (Pp. 14-16)
3. Other rules that address the subject of disqualification reinforce the Court’s conclusion that it was error for the trial judge and plaintiff’s counsel to engage in employment discussions while the instant litigation was still pending. Among these are Canon 3(C)(1) of the Code of Judicial Conduct and Rule 1:12-1(f). Although the Court agrees with the Assignment Judge and the Appellate Division that no evidence in the record shows Judge Escala conducted the trial or post-trial proceedings in a biased or unfair way, the Court believes that a reasonable, fully informed person may have doubts about the judge’s impartiality. Accordingly, the Court finds that Judge Escala and Herten’s employment discussions on and after January 24, 2006 created an appearance of impropriety that required disqualification under Canon 3(C)(1) and Rule 1:12-1(f). This additional, alternative finding in no way undermines the Court’s conclusion regarding RPC 1.12(c), which prohibited negotiations outright in this case. That said, the Court finds no support in the record for Cupo’s claim that Judge Escala should have recused himself before the January 24, 2006 conversation. (Pp. 16-19)
4. While there is no evidence that the trial judge acted out of actual bias in favor of the Herten firm, the appearance of impropriety generated by the employment negotiations and the prospect of a financial relationship raises doubts about those decisions and the judge’s impartiality in general. Regrettably, from the standpoint of a knowledgeable, objective observer, the brief negotiations toward the end of the litigation could reasonably have infected all that occurred beforehand. As a result, a full retrial is required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice. (Pp. 19-21)
5. All New Jersey judges face mandatory retirement at age seventy and many choose to practice law in the private sector when they retire from public service, subject, of course, to the Guidelines on the Practice of Law by Retired Judges, Administrative Directive # 5-08 (March 24, 2008). The safest course for judges who wish to avoid overstepping any boundaries or raising an appearance of impropriety would be to wait until after retirement to seek employment. But our rules do not require that approach, and the Court recognizes that it can be impractical for various personal and professional reasons. Because of the importance and sensitivity of questions regarding postretirement employment discussions, some additional guidance may be helpful. First, judges may not discuss or negotiate for employment with any parties or attorneys involved in a matter in which the judge is participating personally and substantially. If the subject is raised in any fashion, judges should put a halt to the conversation at once, rebuff any offer, and disclose what occurred on the record. Second, judges who engage in retirement discussions while still on the bench – with attorneys who do not have a matter pending before them – must proceed in a way that minimizes the need for disqualification and upholds the integrity of the courts. To that end, judges should delay starting any discussions until shortly before their planned retirement, and should discuss postretirement employment opportunities with the fewest possible number of prospective employers. Third, judges must
disqualify themselves from matters involving parties or attorneys with whom they have discussed future
employment, whether or not those discussions lead to a future relationship. Fourth, judges should wait a reasonable period of time before discussing employment with an attorney or law firm that has appeared before the judge. In addition to these general guidelines, the Court refers the matter to the Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activities for their recommendations. (Pp. 21-25)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial
consistent with this opinion.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in
CHIEF JUSTICE RABNER’s opinion.
SUPREME COURT OF NEW JERSEY
A-61 September Term 2007
LAWRENCE DENIKE, Individually
and as a member of CLASSIC
MORTGAGE, LLC, a New Jersey
Limited Liability Company,
Plaintiff-Respondent,
v.
MICHAEL CUPO,
Defendant-Appellant.
Argued May 6, 2008 – Decided September 24, 2008
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 394 N.J. Super. 357 (2007).
James F. Keegan argued the cause for
appellant (Bendit Weinstock, attorneys; Mr.
Keegan, Barrett F. Kalb and Sherri Davis
Fowler, on the briefs).
Thomas J. Herten argued the cause for
respondent (Herten, Burstein, Sheridan,
Cevasco, Bottinelli, Litt & Harz, attorneys;
Mr. Herten and Daniel Y. Gielchinsky, on the
brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
The Judiciary derives its authority from the State
Constitution but earns the public’s confidence through acts of unquestioned integrity. When that trust is shaken – even 2 slightly -- our system of justice falters. To guard against that outcome, we now address an area fraught with peril: a sitting judge’s exploration of future employment opportunities.
In this case, a lawyer approached a trial judge and asked if he would consider affiliating with the attorney’s firm upon retirement. In response, the judge began preliminary negotiations with the lawyer. Throughout the brief period of their discussions, the lawyer was handling a contested, pending matter before the judge.
That behavior plainly violated RPC 1.12(c), which directs that a judge “shall not negotiate for employment with any person who is involved as a party or as an attorney for a party in a matter in which the [judge] is participating personally and substantially.” The attorney should have waited a reasonable period of time after the case ended before broaching the subject of employment. Absent such a break in time, the trial judge should have halted discussions immediately, disclosed them on the record, and allowed the parties to evaluate the need for any further relief.
Judges must avoid actual conflicts as well as the
appearance of impropriety to promote confidence in the integrity and impartiality of the Judiciary. Unfortunately, the negotiations between trial judge and lawyer in this case created an appearance of impropriety. Stated simply, the conduct here fell short of the high standards demanded of judges and fellow members of the legal profession and had the capacity to erode the public’s trust.
Because any lesser remedy would allow reasonable doubts to linger about the fairness of the outcome of the case, we reverse the judgment of the Appellate Division and remand for a new trial.
I.
Plaintiff Lawrence DeNike and defendant Michael Cupo were the sole members of Classic Mortgage, LLC (Classic), a company that brokered residential mortgages. They operated the business for a number of years and eventually had a falling out. After they tried unsuccessfully to mediate their dispute, DeNike filed a lawsuit in July 2003 seeking to terminate and acquire Cupo’s interest in the company. Cupo counterclaimed. Both parties sought primarily the same relief: calculation of the fair value of Cupo’s interest in Classic so that DeNike could buy out Cupo’s interest.
The Honorable Gerald C. Escala, then Judge of the Superior Court and Presiding Judge of the Chancery Division, oversaw two and-a-half years of hard-fought litigation in this matter. DeNike retained Thomas J. Herten, of the law firm Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, to represent him.
About two weeks after the lawsuit started, the trial judge issued an order directing that: (1) Cupo be deemed dissociated from Classic as of July 18, 2003; and (2) DeNike make a partial payment of $250,000 to Cupo without prejudice to a final ruling on the value of his interest in the company. The trial judge later set December 31, 2002 as the valuation date for calculating Cupo’s interest.
After a five-day bench trial in February and March 2005, the trial judge made various factual findings and ruled that DeNike would acquire Cupo’s interest at fair market value. The court rejected each side’s valuation expert and appointed William Morrison to calculate the value of Cupo’s interest. To do so, Morrison would have to determine the value of the business and make intricate adjustments for commissions received, overhead costs, monthly management fees due DeNike, and the $250,000 payment, among other items. Morrison would also have to recalculate and adjust the parties’ capital accounts.
Months later, in December 2005, Morrison testified about his findings, subject to cross-examination. The trial court then issued a supplemental decision directing DeNike to purchase Cupo’s interest in Classic for the net amount of $436,682.
As directed, DeNike submitted a proposed form of order on January 3, 2006; Cupo objected and submitted his own proposed order. Specifically, Cupo requested that judgment be entered against DeNike both individually and in his capacity as a member of Classic, jointly and severally; that DeNike not be permitted to pay in installments over five years; and that the court address whether it had considered a $98,530 adjustment for taxes Cupo reportedly paid, on monies he would no longer receive because of an adjustment to his capital account. Cupo also argued that the net amount due him was $493,271, not $436,682,relying on a different figure Morrison had used to adjust the
capital accounts.
On January 11, 2006, the court entered an order affirming that $436,682 was owed to Cupo. The following day, the court invited both parties to submit motions to address the error Cupo had raised about the net amount due as well as the proper payment schedule. Both parties filed motions, and the court issued its second supplemental decision on January 20, 2006. In that ruling, the trial judge agreed with Cupo and noted that it erred regarding the expert’s calculations.
As a result, Cupo was due $493,271. As for the manner of payment, the court ruled that a five-year payment period was appropriate, and that the obligation belonged to the company, not DeNike individually.
On January 24, 2006, one day after receiving a copy of the court’s latest decision, DeNike’s attorney, Thomas Herten, visited Judge Escala in chambers and asked about his retirement plans. (We rely on a certification Herten later submitted to the court for that fact and the related statements that follow.) Herten was aware of Judge Escala’s mandatory retirement date of February 24, 2006, and asked whether he would consider joining Herten’s law firm. The judge replied that he was open to considering the firm but wanted an independent “of counsel” type relationship. Because of the expenses involved in such a relationship, Herten responded that he would discuss the matter with his partners.
Herten met with his partners the next day, January 25, and they agreed to investigate the potential overhead costs of Judge Escala joining the firm. Either that same day or the next, Herten spoke with the judge by telephone and told him it would probably take several days to analyze the projected overhead expenses and get back to him.
Meanwhile on January 26, 2006, Cupo submitted a proposed form of order and promissory note as directed by the trial judge’s January 20 second supplemental decision. In a cover letter, Cupo also sought to raise two issues about the promissory note, which the second supplemental decision had addressed. First, while the decision and draft promissory notes provided for annual payments at the judgment rate set by Rule 4:42-11, Cupo argued for quarterly installments with interest at the prime rate, based on the company’s Operating Agreement.
Second, Cupo once again asked the court to address the $98,530 adjustment for taxes Cupo claimed he had already paid.
Five days later, on January 31, 2006, DeNike’s counsel
objected and submitted an alternate proposed order and note. Herten wrote that Cupo’s proposed forms “greatly exceed the scope of Your Honor’s Second Supplemental Decision dated January 20, 2006 and the terms of the [LLC’s] Operating Agreement.” In particular, Herten complained that “[v]arious terms of the proposed Promissory Note . . . are so unilateral that the proposed note would never be executed in a negotiated transaction.” According to Herten, those “terms are either not provided for in the Operating Agreement, or directly contrary to the terms of the Operating Agreement.” Herten asked the judge to exercise his “discretion to execute the enclosed Order”
instead.
The dueling sets of forms had certain apparent differences. Cupo’s proposed order allowed for the option of one lump sum payment or payment in installments, while DeNike’s provided for installment payments only. Regarding the promissory notes, among other points, Cupo’s called for a five percent late fee on payments more than fifteen days late, and DeNike’s did not; Cupo’s allowed the note to be accelerated and become immediately due and payable if any payment was thirty days late, while DeNike’s provided for written notice and an opportunity to cure a default within fifteen days; and Cupo’s allowed the note to be assigned, while DeNike’s expressly prohibited assignment.
On February 1, 2006, the judge adopted DeNike’s proposed form of order and modified it in two ways: (1) he directed Classic to deliver “a promissory note” to Cupo within ten days but declined to endorse either note the parties had submitted; and (2) he inserted a handwritten paragraph explaining that he set the interest rate at the judgment rate “to recognize the effect of the ‘advance’ payment of $250,000 . . . and the fact that the matter was litigated.” By signing the order, the court denied Cupo’s motion to award the additional amount of $98,530.
Later that same day, after receiving a copy of the final judgment, Herten spoke with Judge Escala by telephone. Herten told the judge the firm had not completed its analysis but that whatever financial arrangement the firm proposed could be adjusted later to insure that it was satisfactory to both sides.
Two days after, on February 3, 2006, Herten visited Judge Escala in his chambers, and the two agreed in principle to the judge joining the firm. They left the financial terms to be determined in the future. At a retirement dinner that night, Judge Escala announced his intention to join Herten Burstein upon retirement. He joined the firm on February 27, 2006.
After learning of Judge Escala’s announcement, Cupo moved to vacate the final judgment and sought a new trial. Cupo questioned the judge’s conduct in negotiating with the Herten firm and claimed the relationship could have influenced the outcome of the case. By this time, the case had been transferred from Bergen to Passaic County, where the Assignment Judge assigned the matter to himself.
Before ruling on the motion, the Assignment Judge invited Cupo to seek reconsideration of any issue that might properly have been raised before Judge Escala. The Assignment Judge also granted Cupo the opportunity to cross-examine Herten and, if necessary, to question Judge Escala. Cupo declined both offers, and neither party sought reconsideration of the final judgment.
The Assignment Judge recounted the lengthy history of the case and remarked to Herten that, “in retrospect, had you thought it out, you could have handled it a lot more delicately. . . . You created the situation, and now it snowballed into something that appears to have some impropriety to it.” The Assignment Judge added that it would have been a better exercise of discretion if Herten had waited to approach Judge Escala and if the judge had immediately disclosed his conversations with
Herten. “[H]indsight being 20/20,” the Assignment Judge
observed, the trial judge “should have done it differently.”
Nonetheless, the Assignment Judge found that the conduct did not violate any canon of ethics, noting that the only task remaining for the court after negotiations had begun was the “ministerial act of formalizing in a written Order that which was decided” earlier. As a result, the Assignment Judge denied Cupo’s motion to vacate the judgment.
Cupo appealed, and the Appellate Division affirmed the
Assignment Judge’s denial of the motion to vacate judgment.
DeNike v. Cupo, 394 N.J. Super. 357 (App. Div. 2007). Echoing the Assignment Judge, the panel found that Judge Escala “should not have begun negotiations with the Herten firm before completely concluding this matter, and minimally should have revealed to defendant the contact that was made by plaintiff’s attorney as soon as it occurred.” Id. at 376. However, the panel concluded that “there was no actual appearance of impropriety” and that “[n]o person could reasonably believe that the judge had been biased, less than impartial, or unfair in conducting this trial.” Id. at 373.
In making that determination, the Appellate Division
rejected Advisory Opinion No. 84 of the Committee on Codes of Conduct -- which provides that a “judge should not explore employment opportunities with a law firm which has appeared before the judge until the passage of a reasonable interval” -- finding it pertains only to federal judges. Id. at 373-74. The panel also distinguished Pepsico, Inc. v. McMillen, 764 F.2d 458 (7th Cir. 1985), because it involved employment negotiations that occurred prior to trial. DeNike, supra, 394 N.J. Super. At 374.
The Appellate Division also focused on Judge Escala’s
actions in the case after he started negotiating with Herten. The panel found that those negotiations occurred after the trial judge had issued his second supplemental decision and rendered all substantive decisions in the case. Id. at 374-76. The only task remaining for the judge, according to the panel, “was the ministerial act of adopting the form order drafted by plaintiff’s attorney with only a few minor editorial changes.”
Id. at 375. In doing so, the judge refused to endorse either form of promissory note before him. Id. at 374.
In the end, the panel agreed that Judge Escala “should have handled this situation differently,” but noted that “[i]f there is to be any . . . regulatory restriction [on post-retirement employment], it must come from the Supreme Court.” Id. at 375. In the remainder of its opinion, the Appellate Division addressed various other issues, affirming in part, reversing in part, and remanding in part. In short, the panel concluded that, pursuant to N.J.S.A. 42:2B-39, the correct valuation date was July 18, 2003, the date Cupo was deemed dissociated from Classic, and not December 31, 2002, DeNike, supra, 394 N.J. Super. at 381; that the trial court properly valued Cupo’s interest, id. at 382-83, 387; and that the trial court did not err in equalizing the parties’ capital accounts, id. at 384, denying Cupo a credit for taxes paid, id. at 385, denying prejudgment interest to Cupo, id. at 385-86, or allowing payments to be made over a period of five years, id. at 386.
The panel deferred to the trial judge’s credibility findings in reaching its decision. Id. at 383-84.
We granted Cupo’s petition for certification. 192 N.J. 598
(2007).
II.
Cupo argues that Judge Escala created an appearance of
impropriety by negotiating for employment with Herten; that
litigants and the public might be concerned that bias infected the court’s decisions; that the Appellate Division failed to distinguish between actual and apparent impropriety; that established principles of New Jersey law, including RPC 1.12(c), prohibited the trial judge from having employment discussions with Herten while the case was pending; and that after negotiations had begun, there were still unfinished tasks requiring the exercise of Judge Escala’s discretion. Cupo maintains that because the negotiations provide fair reason to question the trial judge’s objectivity and fairness, a new trial is warranted.
Conversely, DeNike argues that the Appellate Division
correctly found there was no appearance of impropriety; that the negotiations took place only after the court completed all substantive decisions; that the execution of a final judgment was but a ministerial act; that federal law and advisory opinions are inapplicable; that Cupo’s position is based on speculation and subjective beliefs; and that any limitations on post-retirement employment negotiations imposed by this Court should only be applied prospectively.
III.
Certain core, ethical precepts provide the proper backdrop to this case. They include the bedrock principle articulated in Canon 1 of the Code of Judicial Conduct that “[a]n independent and honorable judiciary is indispensable to justice in our society.” To that end, judges are required to maintain, enforce, and observe “high standards of conduct so that the integrity and independence of the judiciary may be preserved.” Ibid.
Judges are to “act at all times in a manner that promotes public confidence,” id. Canon 2(A), and “must avoid all impropriety and appearance of impropriety,” id. commentary on Canon 2 (emphasis added). Indeed, as this Court recognized nearly a half century ago, “‘justice must satisfy the appearance of justice.’” State v. Deutsch, 34 N.J. 190, 206 (1961)(quoting Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11, 16 (1954)). That standard requires judges to “refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question.” Ibid. In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial. To demand any less would invite questions about the impartiality of
the justice system and thereby “threaten[] the integrity of our judicial process.” State v. Tucker, 264 N.J. Super. 549, 554 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).
A.
Rule 1:18 obligates every judge to abide by the Rules of Professional Conduct and the Code of Judicial Conduct. See also R. 1:14. We start with the Rules of Professional Conduct, which contain straightforward guidance applicable to this case. RPC 1.12(c) provides:
A lawyer shall not negotiate for employment
with any person who is involved as a party
or as an attorney for a party in a matter in
which the lawyer is participating personally
and substantially as a judge or other
adjudicative officer, arbitrator, mediator,
or other third-party neutral.
The rule is clearer still when its focus is placed only on
judges: A judge shall not negotiate for employment with any
person who is involved as a party or as an attorney for a party in a matter in which the judge is participating personally and substantially.
There is no room for dispute that by overseeing the lengthy litigation in this matter, Judge Escala was participating “personally.” DeNike argues that after employment negotiations began, the judge’s actions were purely ministerial, and by inference not “substantial.” All that remained, DeNike contends, was the non-discretionary act of entering a final judgment in the case.
To be sure, in certain instances, entry of judgment may constitute a ministerial act that does not involve the exercise of discretion. See Parker v. Parker, 128 N.J. Super. 230, 232- 33 (App. Div. 1974) (noting that entry of judgment was nondiscretionary when trial judge made definitive adjudication of controversy, granted parties divorce, and plaintiff died before judgment was formally entered); see also Fazilat v. Feldstein, 180 N.J. 74, 81-82 (2004) (commenting that trial court in Black
v. Walker, 295 N.J. Super. 244, 252 (App. Div. 1996), entered order against decedent’s estate “likely because all but the ministerial act of executing the order had been carried out” before his death).
Here, though, the facts do not support the principle DeNike advances. After January 24, 2006, when Herten broached the topic of employment with Judge Escala, the parties were still at odds over the terms of the final order. As detailed above in section I, the parties submitted dueling forms of order, each with its own, distinct promissory note. The notes differed as to late fees, default provisions, assignability, and other terms.
In addition, Cupo’s submission raised questions about
quarterly installments and the interest rate to be used.
Herten’s order was accompanied by a cover letter to Judge Escala dated January 31 -- a week after employment negotiations began - in which Herten asked the judge to reject Cupo’s submission and exercise “discretion” to execute Herten’s order.
Judge Escala did just that. He also explained in writing why he adopted the post-judgment rate of interest, which Cupo had challenged days earlier. While the trial judge chose not to endorse either promissory note, by doing so he effectively heeded Herten’s request not to use his adversary’s form. One could argue that entry of an uncontested form of judgment, after a final, definitive ruling in a case, does not constitute “substantial” participation at the time the order is entered. But when a court explains a prior ruling while deciding between competing submissions and positions, it is still “substantially” engaged. As a result, the discussions
between Judge Escala and Herten that began on January 24, 2006 violated the express terms of RPC 1.12(c).
B.
Other rules that address the subject of disqualification reinforce our conclusion that it was error for the trial judge and plaintiff’s counsel to engage in employment discussions while the instant litigation was still pending. Canon 3(C)(1) of the Code of Judicial Conduct provides that “[a] judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”
Similarly, Rule 1:12-1(f) directs judges not to
sit in any matter “when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.”
We agree with the Assignment Judge and the Appellate
Division that no evidence in the record shows Judge Escala
conducted the trial or post-trial proceedings in a biased or unfair way. To be clear, though, “it is not necessary to prove actual prejudice on the part of the court” to establish an appearance of impropriety; an “objectively reasonable” belief that the proceedings were unfair is sufficient. State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Those principles give rise to the following standard:
Would a reasonable, fully informed person have doubts about the judge’s impartiality? We believe so for a number of reasons. First, based on the timing of the negotiations toward the close of the case, an objective observer might reasonably wonder whether Judge Escala favored the Herten firm either consciously or unconsciously. That concern would not be present had the negotiations started a reasonable period of time after the case ended. Because discussions began just days after the second supplemental decision, and in the midst of arguments over the shape of the final judgment, the public has reason to lack
confidence in the integrity of the process and its outcome.
Second, a judge simply cannot have a prospective financial relationship with one party and expect to persuade the other, or the public, that the court can nevertheless fairly assess the case. See Pepsico, supra, 764 F.2d at 461 (finding appearance of partiality requiring recusal when headhunter mistakenly contacted parties, on behalf of federal trial judge, before trial was to begin). Indeed, any sort of employment negotiations with a party -- “preliminary, tentative, indirect, unintentional, [or] ultimately unsuccessful” -- right before or during a pending matter, reasonably call into question a judge’s
impartiality. Ibid.
Instead of pursuing Herten’s entreaty, Judge Escala should have put an immediate halt to the first conversation and disclosed it on the record. DeNike, once again, argues that no reasonable person could question the proceedings because as of January 24, 2006, the case had been fully resolved with only ministerial acts left to be addressed. But, as discussed previously, the record reveals otherwise.
In addition, the timing of Herten’s approach -- so
soon after the court’s January 20 ruling, in a matter that
spanned two-and-one-half years of intensely fought litigation -- invites doubts about the trial judge’s partiality. See In re Continental Airlines Corp., 901 F.2d 1259, 1262 (5th Cir. 1990)(finding that close coupling of trial judge’s rulings – from May 8 through July 1, 1986 -- with party’s employment offer on July 2, 1986 and judge’s acceptance on July 29, 1986, created appearance issues warranting recusal).
Accordingly, we find that Judge Escala and Herten’s
employment discussions on and after January 24, 2006 created an appearance of impropriety that required disqualification under Canon 3(C)(1) and Rule 1:12-1(f). This additional, alternative finding in no way undermines our conclusion regarding RPC 1.12(c), which prohibited negotiations outright in this case.
That said, we find no support in the record for Cupo’s claim that Judge Escala should have recused himself before the January 24, 2006 conversation.
IV.
What, then, is the appropriate remedy? The Appellate
Division ordered a revised valuation of Cupo’s interest to take into account a new valuation date of July 18, 2003. That task alone requires additional expert analysis and testimony. But more is needed to restore public confidence in the outcome of this case.
During the course of the five-day trial and other
proceedings, Judge Escala was required to make various
credibility determinations and judgment calls. While there is no evidence that he acted out of actual bias in favor of the Herten firm, the appearance of impropriety generated by the employment negotiations and the prospect of a financial
relationship raises doubts about those decisions and the judge’s impartiality in general. Permitting Cupo to cross-examine Herten or question Judge Escala would not sufficiently erase those concerns.
Regrettably, from the standpoint of a knowledgeable,
objective observer, the brief negotiations toward the end of the litigation could reasonably have infected all that occurred beforehand. As a result, a full retrial is required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice. To shorten the proceedings and save resources at the retrial, the parties are encouraged to stipulate to the introduction of any evidence, documentary or testimonial, presented during the first trial.
DeNike contends that it would be unreasonable to apply new ethical restrictions to him retroactively. We do not agree. Because we rely on existing rules and prohibitions set forth in RPC 1.12(c), Canon 3(C)(1), and Rule 1:12-1(f), the relief ordered properly applies to this case.
V.
All New Jersey judges face mandatory retirement at age
seventy, see N.J. Const. art. VI, § 6, ¶ 3, and many choose to practice law in the private sector when they retire from public service, subject, of course, to the Guidelines on the Practice of Law by Retired Judges, Administrative Directive # 5-08 (March 24, 2008), available at www.judiciary.state.nj.us/directive/ 2008/dir_05_08.pdf. Because of the importance and sensitivity of questions regarding post-retirement employment discussions,
some additional guidance may be helpful.
1. To reiterate, under RPC 1.12(c), judges may not discuss or negotiate for employment with any parties or attorneys involved in a matter in which the judge is participating personally and substantially. Similarly, lawyers may not approach a judge to discuss post-retirement employment while such a matter is pending. If the subject is raised in any fashion, judges should put a halt to the conversation at once, rebuff any offer, and disclose what occurred on the record. The judge and all parties can then evaluate objectively whether any further relief is needed.
2. Judges who engage in retirement discussions while still on the bench -- with attorneys who do not have a matter pending before them -- must proceed in a way that minimizes the need for disqualification and upholds the integrity of the courts. Just as judges are required to manage their financial and business dealings to avoid conflicts and divest themselves of investments that “could reasonably . . . require frequent disqualification,” Code of Judicial Conduct, Canon 5(D)(3), they should proceed likewise with employment discussions. To that end, judges should delay starting any discussions until shortly before their planned retirement, and should discuss post-retirement employment opportunities with the fewest possible number of prospective employers. That approach would cause the least amount of disruption to litigants, other judges called upon to handle transferred cases, and the administration of the justice system. We encourage judges to consult with the Assignment Judge or other supervisory judicial officers in this regard.
3. To avoid raising reasonable questions about their
impartiality, judges must disqualify themselves from matters involving parties or attorneys with whom they have discussed future employment. See id. Canon 3(C)(1); Rule 1:12-1(f). For the sake of public confidence, that rule applies with equal force when discussions lead to a future relationship and when they do not.
4. Judges should wait a reasonable period of time before discussing employment with an attorney or law firm that has appeared before the judge. As in other areas, what is “reasonable” depends on the circumstances. At one end of the spectrum, an uncontested matter resolved swiftly by entry of a default judgment would not call for a lengthy interval of time.
Toward the other end, prolonged or particularly acrimonious litigation would caution in favor of a longer delay. Actions likely to result in continuing post-judgment matters would also warrant a lengthier intervening period of time. Obviously, the safest course for judges who wish to avoid overstepping any boundaries or raising an appearance of impropriety would be to wait until after retirement to seek employment. But our rules do not require that approach, and we recognize it can be impractical for various personal and professional reasons.
We also recognize that this important subject would benefit from further study and additional, practical guidance. Accordingly, we refer the matter to the
Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activities for their recommendations.
We ask the Committees to coordinate their efforts.
Advisory Opinion No. 84 of the federal Committee on Codes
of Conduct, entitled Judge’s Pursuit of Post-Judicial
Employment, provides a sensible starting point. That Opinion is binding on federal but not state judges. In reviewing the Opinion, the Committees should consider relevant differences between the federal and state judiciaries. For example, federal judges are appointed for life. U.S. Const. art. III, § 1. They may retire with full benefits upon reaching age sixty-five (or older, depending on years of service on the bench), or opt for senior status and continue serving indefinitely. 28 U.S.C.A. §
371(a)-(c). They may also receive compensation for law-related and extra-judicial activities, not exceeding fifteen percent of their salary in a calendar year. Code of Conduct for United States Judges, Canon 6; 5 U.S.C.A. Appendix, § 501(a).
In contrast, state judges in New Jersey face mandatory retirement at age seventy. N.J. Const. art. VI, § 6, ¶ 3. They may not receive any payment for quasi-judicial activities like teaching or writing about the law while serving as a judge. Code of Judicial Conduct, Canon 6; see also N.J. Const. art. VI, § 6, ¶ 6 (“[Judges] shall not, while in office, engage in . . . other
gainful pursuit.”). As a result, it is not at all uncommon for state judges to pursue employment when they approach mandatory retirement or at a younger age if they step down earlier. Those and other considerations may help inform the Committees’ work.
VI.
As the Assignment Judge aptly noted, the employment
discussions at the heart of this case were a “momentary slip” in
Judge Escala’s unblemished tenure. That brief episode should
not overshadow a lengthy, fine and dedicated career in public
25
service. But the standard of judicial conduct is necessarily
high “so that the integrity and independence of the judiciary
may be preserved.” State v. Clark, 191 N.J. 503, 513 (2007)
(internal quotation marks and citations omitted). The
fundamental need to maintain public confidence in the
impartiality of the judiciary compels the decision reached in
this case.
We reverse the judgment of the Appellate Division and
remand for a new trial consistent with this opinion.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and
HOENS join in CHIEF JUSTICE RABNER’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-61 SEPTEMBER TERM 2007
ON CERTIFICATION TO Appellate Division, Superior Court
LAWRENCE DENIKE, Individually
And as a member of CLASSIC
MORTGAGE, LLC, a New Jersey
Limited Liability Company,
Plaintiff-Respondent,
v.
MICHAEL CUPO,
Defendant-Appellant.
DECIDED September 24, 2008
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST REVERSE AND
REMAND
CHIEF JUSTICE
RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 7
2C:28-5. Tampering With Witnesses and Informants
Retaliation Against Them.
a. Tampering. A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he knowingly attempts to induce or otherwise cause a witness or informant to:
(1) Testify or inform falsely;
(2) Withhold any testimony, information, document or thing;
(3) Elude legal process summoning him to testify or supply evidence; or
(4) Absent himself from any proceeding or investigation to which he has been legally summoned.
The offense is a crime of the second degree if the actor employs force or threat of force. Otherwise it is a crime of the third degree. Privileged communications may not be used as evidence in any prosecution for violations of paragraph (2), (3) or (4).
b. Retaliation against witness or informant. A person commits a crime of the fourth degree if he harms another by an unlawful act with purpose to retaliate for or on account of the service of another as a witness or informant.
c. Witness or informant taking bribe. A person commits a crime of the third degree if he solicits, accepts or agrees to accept any benefit in consideration of his doing any of the things specified in subsection a. (1) through (4) of this section.
L.1978, c.95; amended 1981,c.290,s.27; 1991,c.33,s.1.
2C:28-5.1. Witness, victim protective orders
If a court having jurisdiction under any criminal matter finds that the defendant in that criminal action or any other person connected in any way with the action has violated or is likely to violate N.J.S. 2C:28-5, N.J.S. 2C:29-3 or N.J.S. 2C:29-4 in regard to the pending offense, or that the defendant or other person has injured or intimidated or is threatening to injure or intimidate any witness in the pending offense or member of the witness' family with purpose to affect the testimony of the witness, the court may issue a protective order providing:
a. That the defendant or other person not violate any provision of N.J.S. 2C:28-5, N.J.S. 2C:29-3, or N.J.S. 2C:29-4;
b. That the defendant or other person maintain a prescribed geographic distance from any specified witness or victim;
c. That the defendant or other person have no communication with any specified witness or victim, except through an attorney under any reasonable restrictions which the court may impose.
L. 1985, c. 250, s. 1, eff. July 31, 1985.
2C:28-5.2. Penalties for violations
Any person violating any order made pursuant to section 1 of this act may be subject to any of the following penalties:
a. He may be charged with any substantive offense defined in N.J.S. 2C:28-5, N.J.S. 2C:29-3, or N.J.S. 2C:29-4 when violation of an order constitutes violation of any provision of those statutes;
b. He may be charged with contempt of the court that made the order. No finding of contempt shall be a bar to prosecution for a substantive offense; and any sentence for a conviction of contempt may be served consecutively to any sentence imposed for the underlying substantive offense. If the court does not impose a consecutive sentence, the court shall state on the record the reason for not imposing a consecutive sentence.
L. 1985, c. 250, s. 2, eff. July 31, 1985.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
Christina Bruschetta "Editor of Criminal Article Blog"
a. Tampering. A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he knowingly attempts to induce or otherwise cause a witness or informant to:
(1) Testify or inform falsely;
(2) Withhold any testimony, information, document or thing;
(3) Elude legal process summoning him to testify or supply evidence; or
(4) Absent himself from any proceeding or investigation to which he has been legally summoned.
The offense is a crime of the second degree if the actor employs force or threat of force. Otherwise it is a crime of the third degree. Privileged communications may not be used as evidence in any prosecution for violations of paragraph (2), (3) or (4).
b. Retaliation against witness or informant. A person commits a crime of the fourth degree if he harms another by an unlawful act with purpose to retaliate for or on account of the service of another as a witness or informant.
c. Witness or informant taking bribe. A person commits a crime of the third degree if he solicits, accepts or agrees to accept any benefit in consideration of his doing any of the things specified in subsection a. (1) through (4) of this section.
L.1978, c.95; amended 1981,c.290,s.27; 1991,c.33,s.1.
2C:28-5.1. Witness, victim protective orders
If a court having jurisdiction under any criminal matter finds that the defendant in that criminal action or any other person connected in any way with the action has violated or is likely to violate N.J.S. 2C:28-5, N.J.S. 2C:29-3 or N.J.S. 2C:29-4 in regard to the pending offense, or that the defendant or other person has injured or intimidated or is threatening to injure or intimidate any witness in the pending offense or member of the witness' family with purpose to affect the testimony of the witness, the court may issue a protective order providing:
a. That the defendant or other person not violate any provision of N.J.S. 2C:28-5, N.J.S. 2C:29-3, or N.J.S. 2C:29-4;
b. That the defendant or other person maintain a prescribed geographic distance from any specified witness or victim;
c. That the defendant or other person have no communication with any specified witness or victim, except through an attorney under any reasonable restrictions which the court may impose.
L. 1985, c. 250, s. 1, eff. July 31, 1985.
2C:28-5.2. Penalties for violations
Any person violating any order made pursuant to section 1 of this act may be subject to any of the following penalties:
a. He may be charged with any substantive offense defined in N.J.S. 2C:28-5, N.J.S. 2C:29-3, or N.J.S. 2C:29-4 when violation of an order constitutes violation of any provision of those statutes;
b. He may be charged with contempt of the court that made the order. No finding of contempt shall be a bar to prosecution for a substantive offense; and any sentence for a conviction of contempt may be served consecutively to any sentence imposed for the underlying substantive offense. If the court does not impose a consecutive sentence, the court shall state on the record the reason for not imposing a consecutive sentence.
L. 1985, c. 250, s. 2, eff. July 31, 1985.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
Christina Bruschetta "Editor of Criminal Article Blog"
2C:28-4a&b False Reports to Law Enforcement Authority
a. Falsely incriminating another. A person who knowingly gives or causes to be given false information to any law enforcement officer with purpose to implicate another commits a crime of the fourth degree.
b. Fictitious reports. A person commits a disorderly persons offense if he:
(1) Reports or causes to be reported to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; or
(2) Pretends to furnish or causes to be furnished such authorities with information relating to an offense or incident when he knows he has no information relating to such offense or incident.
L.1978, c. 95, s. 2C:28-4, eff. Sept. 1, 1979.]
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court
b. Fictitious reports. A person commits a disorderly persons offense if he:
(1) Reports or causes to be reported to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; or
(2) Pretends to furnish or causes to be furnished such authorities with information relating to an offense or incident when he knows he has no information relating to such offense or incident.
L.1978, c. 95, s. 2C:28-4, eff. Sept. 1, 1979.]
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court
2C:27-1. Bribery
2C:27-1. Bribery
Definitions
In chapters 27 through 30, unless a different meaning plainly is required:
a. "Benefit" means gain or advantage, or anything regarded by the beneficiary as gain or advantage, including a pecuniary benefit or a benefit to any other person or entity in whose welfare he is interested;
b. "Government" includes any branch, subdivision or agency of the government of the State or any locality within it;
c. "Harm" means loss, disadvantage or injury, or anything so regarded by the person affected, including loss, disadvantage or injury to any other person or entity in whose welfare he is interested;
d. "Official proceeding" means a proceeding heard or which may be heard before any legislative, judicial, administrative or other governmental agency, arbitration proceeding, or official authorized to take evidence under oath, including any arbitrator, referee, hearing examiner, commissioner, notary or other person taking testimony or deposition in connection with any such proceeding;
e. "Party official" means a person who holds an elective or appointive post in a political party in the United States by virtue of which he directs or conducts, or participates in directing or conducting party affairs at any level of responsibility;
f. "Pecuniary benefit" is benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain;
g. "Public servant" means any officer or employee of government, including legislators and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not include witnesses;
h. "Administrative proceeding" means any proceeding, other than a judicial proceeding, the outcome of which is required to be based on a record or documentation prescribed by law, or in which law or regulation is particularized in application to individuals;
i. "Statement" means any representation, but includes a representation of opinion, belief or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation.
L.1978, c. 95, s. 2C:27-1, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 47, eff. Sept. 1, 1979.
2C:27-2. Bribery in official and political matters
A person is guilty of bribery if he directly or indirectly offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
a. Any benefit as consideration for a decision, opinion, recommendation, vote or exercise of discretion of a public servant, party official or voter on any public issue or in any public election; or
b. Any benefit as consideration for a decision, vote, recommendation or exercise of official discretion in a judicial or administrative proceeding; or
c. Any benefit as consideration for a violation of an official duty of a public servant or party official; or
d. Any benefit as consideration for the performance of official duties.
For the purposes of this section "benefit as consideration" shall be deemed to mean any benefit not authorized by law.
It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason.
In any prosecution under this section of an actor who offered, conferred or agreed to confer, or who solicited, accepted or agreed to accept a benefit, it is no defense that he did so as a result of conduct by another constituting theft by extortion or coercion or an attempt to commit either of those crimes.
Any offense proscribed by this section is a crime of the second degree. If the benefit offered, conferred, agreed to be conferred, solicited, accepted or agreed to be accepted is of the value of $200.00 or less, any offense proscribed by this section is a crime of the third degree.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
Definitions
In chapters 27 through 30, unless a different meaning plainly is required:
a. "Benefit" means gain or advantage, or anything regarded by the beneficiary as gain or advantage, including a pecuniary benefit or a benefit to any other person or entity in whose welfare he is interested;
b. "Government" includes any branch, subdivision or agency of the government of the State or any locality within it;
c. "Harm" means loss, disadvantage or injury, or anything so regarded by the person affected, including loss, disadvantage or injury to any other person or entity in whose welfare he is interested;
d. "Official proceeding" means a proceeding heard or which may be heard before any legislative, judicial, administrative or other governmental agency, arbitration proceeding, or official authorized to take evidence under oath, including any arbitrator, referee, hearing examiner, commissioner, notary or other person taking testimony or deposition in connection with any such proceeding;
e. "Party official" means a person who holds an elective or appointive post in a political party in the United States by virtue of which he directs or conducts, or participates in directing or conducting party affairs at any level of responsibility;
f. "Pecuniary benefit" is benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain;
g. "Public servant" means any officer or employee of government, including legislators and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function, but the term does not include witnesses;
h. "Administrative proceeding" means any proceeding, other than a judicial proceeding, the outcome of which is required to be based on a record or documentation prescribed by law, or in which law or regulation is particularized in application to individuals;
i. "Statement" means any representation, but includes a representation of opinion, belief or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation.
L.1978, c. 95, s. 2C:27-1, eff. Sept. 1, 1979. Amended by L.1979, c. 178, s. 47, eff. Sept. 1, 1979.
2C:27-2. Bribery in official and political matters
A person is guilty of bribery if he directly or indirectly offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
a. Any benefit as consideration for a decision, opinion, recommendation, vote or exercise of discretion of a public servant, party official or voter on any public issue or in any public election; or
b. Any benefit as consideration for a decision, vote, recommendation or exercise of official discretion in a judicial or administrative proceeding; or
c. Any benefit as consideration for a violation of an official duty of a public servant or party official; or
d. Any benefit as consideration for the performance of official duties.
For the purposes of this section "benefit as consideration" shall be deemed to mean any benefit not authorized by law.
It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason.
In any prosecution under this section of an actor who offered, conferred or agreed to confer, or who solicited, accepted or agreed to accept a benefit, it is no defense that he did so as a result of conduct by another constituting theft by extortion or coercion or an attempt to commit either of those crimes.
Any offense proscribed by this section is a crime of the second degree. If the benefit offered, conferred, agreed to be conferred, solicited, accepted or agreed to be accepted is of the value of $200.00 or less, any offense proscribed by this section is a crime of the third degree.
Consequences of a Criminal Guilty Plea
1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)
2. Do you understand that if you plead guilty:
a. You will have a criminal record
b. You may go to Jail or Prison.
c. You will have to pay Fines and Court Costs.
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
8. You must wait 5-10 years to expunge a first offense. 2C:52-3
9. You could be put on Probation.
10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.
11. You may be required to do Community Service.
12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.
14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
15. You lose the presumption against incarceration in future cases. 2C:44-1
16. You may lose your right to vote.
The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.
Jail for Crimes and Disorderly Conduct:
If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.
NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;
(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.
2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:
a. (1) $200,000.00 when the conviction is of a crime of the first degree;
(2) $150,000.00 when the conviction is of a crime of the second degree;
b. (1) $15,000.00 when the conviction is of a crime of the third degree;
(2) $10,000.00 when the conviction is of a crime of the fourth degree;
c. $1,000.00, when the conviction is of a disorderly persons offense;
d. $500.00, when the conviction is of a petty disorderly persons offense;
If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court.
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