Opinion
DOCKET NO. A-2700-13T3
07-22-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. JAMES DEFAZIO, Defendant-Respondent.
Matthew Murphy, Assistant Somerset County Prosecutor, argued the cause for appellant (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Murphy, on the brief). Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Turner, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 13-04-00193 and 13-04-00194.
Matthew Murphy, Assistant Somerset County Prosecutor, argued the cause for appellant (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Murphy, on the brief).
Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Turner, of counsel and on the brief). PER CURIAM
By our leave granted, the State appeals from the Law Division's December 2, 2013 order transferring venue of this criminal matter from Somerset County to Hunterdon County. We affirm.
I.
In separate indictments issued on April 17, 2013, defendant James DeFazio was charged by a Somerset County grand jury with two counts of third-degree burglary, N.J.S.A. 2C:18-2; four counts of third-degree theft, N.J.S.A. 2C:20-3; one count of second-degree burglary; and one count of second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7(b). The factual details surrounding the charges are not relevant to the issues on appeal.
On April 19 and July 3, 2013, the presiding judge of Vicinage 13's Criminal Division entered sua sponte orders transferring venue of DeFazio's indictments from Somerset County to Hunterdon County. The orders recited that "good cause exists" for the change of venue, but only the July 3 order explained that "a potential conflict of interest" animated the judge's action.
Vicinage 13 consists of Somerset, Hunterdon, and Warren counties.
On August 26, 2013, we granted the State's first motion for leave to appeal, and summarily reversed both orders. We remanded the matter "for a hearing, to be conducted as soon as practicable, on notice to the parties and with an opportunity to submit briefs and oral argument, concerning the proposed change of venue." We expressly declined to rule on the propriety of an eventual order, and permitted the Law Division to chart an appropriate course.
DeFazio's attorney did not oppose the State's motion for leave to appeal. Indeed, he joined in the State's request because "the order[s] in question should not have been entered without due process, i.e., notice and an opportunity to be heard by the
On October 7 and November 18, 2013, Vicinage 13's assignment judge held hearings to consider the parties' arguments. By the second hearing, DeFazio had filed a formal motion for a change of venue, which the State opposed. Two certifications by vicinage employees were submitted to the judge.
The record developed through these hearings reveals the following. In April 2013, after the indictments were issued, a vicinage employee submitted a reporting form to the Vicinage 13 Criminal Division Manager indicating her familial relationship with DeFazio. This apparently triggered the initial orders changing venue, as the presiding judge presumably believed that such a transfer was an appropriate action to avoid any appearance of impropriety.
Effective September 12, 2003, the Administrative Office of the Courts (AOC) established in Judiciary Employee Policy #5-5 (Policy #5-5), the judiciary's "Policy and Procedure for Reporting Involvement in Criminal/Quasi-Criminal Matters," which requires that "[t]he Judiciary and those within the scope of this policy have an obligation to maintain a high degree of integrity and to avoid any actual, potential or appearance of partiality or conflict of interest in the adjudication or handling of all cases." Administrative Office of the Courts, Judiciary Employee Policy #5-5, eff. Sept. 12, 2003.
Policy #5-5 provides, "Appropriate action includes, but is not limited to, changing the venue of the matter, if permitted,[] or otherwise insulating the individual from the matter." Id. at 2. However, Policy #5-5 further cautions, "There may be restrictions on involuntary change of venue which make such action inappropriate (e.g., R. 3:14-2)." Ibid.
The employee, later confirmed to be DeFazio's cousin, was employed as a "Judiciary Clerk 3 in the Somerset Criminal Division Court Records Unit." Among her duties were "data entry into the [judiciary's] Promis Gavel computer system, witnessing criminal complaints daily, preparing certified copies, the creation and maintenance of court files on all cases, as well as[,] her primary function as [a] receptionist."
After considering the parties' arguments, the assignment judge initially noted the requirement of Rule 3:14-2, which provides that change-of-venue motions are granted "if the court finds that a fair and impartial trial cannot otherwise be had." The judge never expressly found that DeFazio would be denied a fair trial in Somerset County, but concluded that it was appropriate to protect the public from "the risk that the defendant's relative would have to deal with this matter at some point or another." Citing to the fact that the employee "has access to court records not otherwise available to the public," and that the individual was "responsible for data entry, preparing certified copies, and for maintenance of all records," the judge canvassed the roster of employees in the Criminal Division, and concluded that "reassignment of [the individual] is not a practical solution, as the defendant's relative is the receptionist at the Criminal Division, and nearly everyone in — whoever uses the criminal court in a professional way has some dealing with her." In deciding the issue, the judge observed,
[t]he [c]ourt cannot evaluate all the possibilities regarding who or who may not gain an advantage in this matter. The fact that this issue even has to be addressed highlights the existence of a substantial conflict.Consequently, the judge concluded,
This [c]ourt is not suggesting that [the individual] will thwart the case in any manner because a member of the defendant's family will have control over the entry of records related to this case, and there's, undoubtedly, a lack of fairness and impartiality to all parties in this case, and therefore, . . . the defendant's motion to transfer venue is, in fact, granted.The State's second motion for leave to appeal followed, which we granted in February 2014.
II.
With numerous exceptions not present in this appeal, "An offense shall be prosecuted in the county in which it was committed." R. 3:14-1. A motion for a change in venue "shall be granted if the court finds that a fair and impartial trial cannot otherwise be had." R. 3:14-2.
We review decisions granting or denying a request for a change of venue for an abuse of discretion. State v. Biegenwald, 106 N.J. 13, 35-36 (1987). "Such a discretion must be a sound discretion guided by law. It must be neither arbitrary, vague nor fanciful and must be in consonance with well-established principles of law." State v. Collins, 2 N.J. 406, 411 (1949).
The State argues that
[t]here is no known authority that would permit a trial [c]ourt [j]udge to eschew codified law and void the State's right to try the [i]ndictments in Somerset County based on a "potential conflict" that has no connection to the conduct of the trial itself.We disagree.
The only "right to try the [i]ndictments in Somerset County" stems from Rule 3:14-1. There is nothing in the Code of Criminal Justice that gives the State a right to a home field advantage, and any common law rules governing venue have been long superseded by the Rules of Court. Winberry v. Salisbury, 5 N.J. 240, 245-46, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950) (recognizing that, under the New Jersey Constitution, the Supreme Court is vested with plenary authority over rules governing the courts in this state).
Cf. N.J.S.A. 2B:22-7 (providing that the venue for trial of an indictment returned by a State grand jury be designated by the order of "the judge who issue[d] an order impaneling [the] State grand jury").
Policy #5-5 also affects venue. It furthers the goal of ensuring the judiciary's hallmark of independence, integrity, fairness, and quality service:
The Judiciary and those within the scope of this policy have an obligation to maintain a high degree of integrity and to avoid any actual, potential or appearance of partiality or conflict of interest in the adjudication or handling of all cases. Even the appearance of a potential conflict of interest undermines the core values of the New Jersey Judiciary and hampers its mission. Accordingly, those covered by this policy must report any involvement concerning themselves, and any immediate family member's involvement known to the individual, in any criminal or quasi-criminal matter within the applicable location or jurisdiction so that, if deemed necessary, the appropriate action may be taken to avoid or minimize any such appearance.Because Policy #5-5 was adopted by the AOC, it has the force of law. Schochet v. Schochet, 435 N.J. Super. 542, 545 n.3 (App. Div. 2014).
[Policy #5-5, supra, at 1.]
Thus, our task in reviewing the exercise of the assignment judge's discretion is to determine whether, in light of the totality of the circumstances dictated by Rules 3:14-1 and -2, and Policy #5-5, her decision was "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002).
DeFazio's indictment and its eventual disposition are not merely of interest to DeFazio and the State's agents who prosecute him. The public at large has an overriding concern that the application of our criminal law and procedure is applied fairly, even-handedly, and in accordance with recognized legal principles. A criminal defendant, who has a family member locally working in the publicly funded branch of government that will ultimately resolve the dispute, may be viewed as either having an advantage or disadvantage due to the familial employment. This status is profoundly unlike that of other defendants without family ties to the judiciary. The assignment judge was rightly concerned that the Criminal Division employee in this case was so embedded in the judiciary's back-office operations that the public perception of DeFazio's treatment in the judicial process — not just his trial — might be improperly skewed, even if there were no risk of the employee's status being brought to the attention of jurors. In an effort to ensure not even the slightest appearance of impropriety, it was a permissible exercise of discretion for the assignment judge to transfer venue to a nearby county, particularly in the absence of any prejudice to the State.
We note that the State does not argue against the change of venue on the ground that it would violate the rights of the putative victims. See State v. Timmendequas, 161 N.J. 515, 555 (1999) (holding that taking the concerns of victims into consideration in a change of venue analysis is appropriate under the Victim's Rights Amendment of the N.J. Const., art. I, ¶22).
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The State contends that Policy #5-5 requires a finding — by clear and convincing evidence — that a transfer is necessary only if "the court finds that a fair and impartial trial cannot otherwise be had," as required by Rule 3:14-2. It relies upon the specific reference to the Rule in Policy #5-5 as the basis for this high threshold. Although the assignment judge did not expressly comment upon the prospect of a fair trial, one of the factors to be considered in selecting a county of venue is "[a]ny other factor which may be required by the interests of justice." See State v. Timmendequas, 161 N.J. 515, 557 (1999) (citing State v. Harris, 282 N.J. Super. 409, 421 (App. Div. 1995), appeal after remand, 156 N.J. 122 (1997)). Because of the concern that the judicial process might be viewed as compromised by having DeFazio's matter processed in Somerset County, the assignment judge was properly considering the interests of justice. Thus, her ultimate conclusion to transfer the matter to Hunterdon County did not constitute an abuse of discretion.
We view the State's position as unduly restrictive and doctrinaire. Because much more than just its interests were at stake, the prosecutorial arm of the Executive Branch cannot dictate a particular approach, much less a result, to the judiciary when it comes to the administration of justice. Here, after following the mandate of our remand and consonant with Policy #5-5, the assignment judge properly carried out the judiciary's mission of ensuring "the fair and just resolution of disputes in order to preserve the rule of law and to protect the rights and liberties guaranteed by the Constitution and laws of the United States and this State." See Mission Statement, http://www.judiciary.state.nj.us/mission.htm (last visited July 14, 2014).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION