EXPLOSIVE: PASSAIC COUNTY SHERIFF OFFICERS (LUCAS AND D'AGOSTINO) COMMIT PERJURY DURING GRAND JURY TESTIMONY AND PASSAIC COUNTY IN NEW JERSEY COMMITS EGREGIOUS PROSECUTORIAL MISCONDUCT TO COVER THEIR ILLEGAL AND UNCONSTITUTIONAL ACTS.

EXPLOSIVE: PASSAIC COUNTY SHERIFF OFFICERS (LUCAS AND D'AGOSTINO)  COMMIT PERJURY DURING GRAND JURY TESTIMONY AND PASSAIC COUNTY IN NEW JERSEY COMMITS EGREGIOUS PROSECUTORIAL MISCONDUCT TO COVER THEIR ILLEGAL AND UNCONSTITUTIONAL ACTS.

The model jury instructions include the following “false in one – then false in all” instruction:

If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.

See State v. Ernst, 32 N.J. 567, 583 (1960), State v. D'Illopito, 22 N.J. 318, 324 (1956), State v. Sturchio, 127 N.J.L. 366, 369 (Sup. Ct. 1941), State v. Samuels, 92 N.J.L. 131, 133 (Sup. Ct. 1918).

We believe that this instruction is very pertinent here, as the stories told and written by the State witnesses and the Passaic County prosecutors are simply false, unbelievable and outright falsities that intended to deceive the grand jurors and prejudice the jurors against the defendant.

For the foregoing reasons and authorities cited, the defendant Basilis N. Stephanatos respectfully submits that his motions for dismissal of the indictment with prejudice must be granted.  The defendant’s motion for the release of personnel files and all videotaped, audiotaped and written (the Incident Reconstruction Report) evidence should also be granted.  Defendant also requests the specific relief delineated in the Omnibus Motions, including the cross examination of Lucas and D’Agostino to further prove to this Court that these two individuals committed perjury and intentionally violated the civil rights of the defendant.  Cross-examination of Walter Dewey should also be allowed by this Court, to further substantiate the charges of Prosecutorial Misconduct.

Respectfully submitted,

___________________________________

Miles Feinstein, Esq.

Dated: November 5, 2015

////////////////--------------------------///////////////////////////


MILES FEINSTEIN, ESQ.

1135 CLIFTON AVENUE

CLIFTON, NEW JERSEY 07013

Attorney ID #: 233611966

Attorney for Defendant

Basilis N. Stephanatos

STATE OF NEW JERSEY             Plaintiff,   v. BASILIS N. STEPHANATOS,                                     Defendant

SUPERIOR COURT OF NEW JERSEY LAW DIVISION - PASSAIC COUNTY Indictment No. 11-09-00810-I Criminal Action NOTICE OF OMNIBUS MOTIONS

TO:      Passaic County Prosecutor’s Office

401 Grand Street

Paterson, New Jersey 07505

Attn: Assistant Prosecutor Peter M. Roby

PLEASE TAKE NOTICE that on December 9, 2015, at 9:00AM or as soon thereafter as counsel can be heard, Miles Feinstein, Esq., attorney for the defendant, Basil N. Stephanatos,  shall move before the Honorable Miguel A. de la Carrera, J.S.C., at the Passaic County Court House, Paterson, New Jersey, for the following:

1.  An Order dismissing the indictment with prejudice because the State never informed the grand jury that the Passaic County Sheriff failed to obtain a mandatory Warrant of Removal in violation of New Jersey law for entry into dwellings (see N.J.S.A. 2A:39-1 Unlawful entry prohibited); misled and lied to the grand jury thereby prejudicing the grand jury against the defendant regarding the commercial instrument located on the front porch of defendant’s place of business; elicited damaging false testimony from witnesses; did not inform the grand jurors that defendant’s property was impermissibly over-assessed and no taxes were legally due; failed to provide to the grand jury exculpatory evidence (emails and phone records) obtained from defendant’s computer clearly negating necessary elements of the alleged offenses and proving that two important persons involved in the matter, Sheriff’s officers Lucas and D’Agostino had lied; did not provide clearly exculpatory evidence to the grand jurors refuting the allegations of the witnesses and/or negating elements of the alleged offenses; the State did not inform the grand jury that prior Court rulings pertinent to the matter violated N.J. statutes and N.J.  Court rules in accordance with Royal Tax Lien Servs., LLC V. Morodan, Docket No. A-6030-12T1 (N.J. Super. App. Div. Jul 03, 2014), I.E.'s, L.L.C. v. Simmons, 392 N.J. Super. 520, 537 (Law Div. 2006), Ronan v. Adely, 182 N.J. 103, 110-11 (2004); Cameco, Inc. v. Gedicke, 157 N.J. 504, 509-10 (1999); Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 562-63 (App. Div.), certif. denied, 200 N.J. 476 (2009); and that Judge Margaret McVeigh failed to consider the full equity that defendant had in his home in direct violation of New Jersey case law in accordance with Royal Tax Lien Servs., LLC V. Morodan, supra.

2.  An Order dismissing the indictment with prejudice because the more than four years case delay to this point deprived the defendant of his constitutionally-guaranteed right to a speedy trial causing severe economic and non-economic hardship.  Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 101, 117 (1972), State v. Cahill, 213 N.J. 253 (2013).

3.  An Order dismissing the indictment with prejudice as the grand jury presentation is fatally flawed as no definitions as to culpability, i.e., “purposely”, “knowingly,” “recklessly” and “negligently” were provided to the grand jurors; and the State did not provide clearly exculpatory evidence to the grand jury regarding the mens rea of the defendant showing that defendant was only lawfully defending his home and his place of business from illegal entry.

4.  An Order dismissing the indictment with prejudice as the state refused to allow the defendant to testify at the grand jury proceedings as was requested by Carl Herman, Esq., defendant’s attorney at the time,  and as a result, the grand jurors were never instructed that the defendant was entitled to show that he was motivated by an honestly held belief and did not consider affirmative defenses.

5.  An Order dismissing the indictment with prejudice as the State never instructed the grand jurors as to the applicable defenses of ignorance or mistake, duress or entrapment.

6.  An Order dismissing the indictment with prejudice as the State never instructed the grand jurors as to New Jersey’s self-defense law and particularly defense of one’s dwelling or place of business.

7.  An Order dismissing the indictment with prejudice due to the use of false and misleading evidence.

8.  An Order requiring the State to produce any and all internal affairs complaints/investigations/personnel files involving any of the law enforcement officers involved in this matter.  Particularly, the personnel files of Officers Lucas and D’Agostino; and the medical records of Officer Lucas evidencing no past sport-related or other injuries.  At the very least, there should be an in camera review of any such records.

9.  An Order requiring a pretrial hearing in this matter pursuant to State v. Driver, 38 N.J. 255 (1962) regarding any video or recording the State intends to offer at the trial of this matter.

10.  An Order requiring the State to produce any and all records and/or information which could arguably be helpful or useful to the defense in impeaching or otherwise detracting from the probative force of the State's evidence, or which could arguably lead to such records or information, including, but not limited to any sheriff’s, police or S.W.A.T. vehicles, videos and/or audio tapes, telecommunications between the Sheriff’s officers and other state or county personnel during the day of the incident and afterwards; any other recordings, photographs obtained by the S.W.A.T. team and the Sheriff’s personnel or other law enforcement personnel involved, and any report pertaining to reconstruction of the incident.  And, of course, any evidence whatsoever which would tend to exculpate the defendant or affect the credibility of any witness.  Brady v. Maryland, 373 U.S. 831 (1963); Giglio v. United States, 405 U.S. 105 (1972); Davis v. Alaska, 415 U.S. 308 (1974); State v. Satkin, 127 N.J. Super. 306 (App. Div. 1974); State v. Carter, 69 N.J. 420 (1976).  The disclosure and production of such evidence is to be made without regard to whether the evidence to be disclosed and produced be deemed to be admissible at trial.

11.  The defendant moves for sequestration of witnesses during pretrial hearings and trial.

12.  The defendant specifically reserves the right to challenge the array in the jury pool;

13.  Defendant moves for an Order compelling the State to disclose if the State is going to call any experts at the trial of this matter; and whether any forensic examinations of any computer seized has been done and the results of the same.

14.  The return of all items taken from the defendant, his family, his home or business, which will not be offered as evidence at trial and which have not already been returned to defendant. 

15.  An Order suppressing all evidence seized (and dismissing the indictment) as the product of an unlawful search, contrary to the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution as the State violated the defendant’s expectation of privacy and a violation of the defendant’s First Amendment right to free speech and assembly.  Peering into dwelling places, such as here, is violative of the United States and New Jersey Consitutions.  The officers also did not have a law-mandated Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited, et seq).  It is defendant’s position that the officers were trespassing on defendant’s property and peering through his residential windows.  See 2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into dwelling places.

16.  An Order suppressing the legally-owned firearms seized from the defendant’s premises. The defendant did not voluntarily consent to the illegal search.  Sheriff’s Officer Lucas was illegally peering through the front door side window of the defendant’s residence.   (See 2C:18-3) And he had no “law-mandated” Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited).  The officers were trespassing and there were no exigent circumstances to justify the trespass and the associated search and seizure. U.S. Const. Amend. IV; N.J. Const. (1947), Art. I, Par. 7.  An evidentiary hearing should be held as to this motion.

17.  An Order suppressing all evidence seized because the Affidavit submitted in support of the issuance of the Search Warrant contained misrepresentations and fabrications; at the very least, an evidentiary hearing must be held. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Novembrino, 105 N.J. 95 (1987); State v. Petillo, 61 N.J. 165 (1972); State v. Nelson, 155 N.J. 487, 498-500 (1998); R. 3:13-3(c)(6).  Furthermore, information in the possession or control of the Prosecutor concerning the source of the information in the Affidavit should have been provided in discovery. 

18.  An Order suppressing all evidence seized based upon irregularities in the execution of the search warrant (including the failure of law enforcement to “knock”); State v. Johnson, 168 N.J. 608 (2001).  An evidentiary hearing should be held as to this issue.

19.  An Order suppressing any statements given by the defendant; at the very least, a Jackson-Denno-Miranda hearing must be held to determine a statement’s admissibility, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); N.J.R.E. 104(C).

20.  Defendant moves for an Order disclosing who has had access to the computers seized at the time of the execution of the Search Warrant in this matter. Any utilization of or intrusions into the computer, with a delineation of the individuals who accomplished the same - with the date, purpose and results should be provided to the defense.

21.  An Order dismissing the Indictment with prejudice because the defendant was the victim of a criminal conspiracy by individuals and entities who lied to the courts and court clerks and hired the sheriff’s officers to illegally seize defendant’s home/business in violation of state and federal laws; the conspiracy was uncovered by the Federal Bureau of Investigation (FBI) with assistance from the defendant (See https://www.fbi.gov/newark/press-releases/2014/former-new-york-tax-liens-investment-company-executive-pleads-guilty-to-role-in-bid-rigging-scheme-at-municipal-tax-lien-auctions);  its existence against the defendant and thousands of New Jersey homeowners was determined and confirmed by United States District Court Judge Michael A. Shipp in the federal antitrust case IN RE NEW JERSEY TAX SALES CERTIFICATES ANTITRUST LITIGATION, Master Docket No. 3:12-CV-01893-MAS-TJB  (see http://www.antitrustupdateblog.com/blog/antitrust-claims-survive-motions-to-dismiss-new-jersey-tax-lien-bid-rigging-class-action/) and by the conviction of at least 15 individuals and entities in New Jersey, including Passaic County, by the U.S. Attorney’s Office (See https://www.fbi.gov/newark/press-releases/2014/former-new-york-tax-liens-investment-company-executive-pleads-guilty-to-role-in-bid-rigging-scheme-at-municipal-tax-lien-auctions). (Point XI).  This will be part of the defense if there is going to be a trial of this matter.  However, the egregious conduct warrants a pretrial hearing and dismissal.

22.  The charges under 2C:12-1B(9) must be dismissed with prejudice as they are not applicable in non-law enforcement activities, as Officers Lucas and D’Agostino were serving court papers, as per their grand jury testimony.  The officers were wearing the light blue process server uniforms, as this was a civil matter.  They never announced themselves as law enforcement officers and they never knocked (as per their testimony).

23.  Defendant respectfully reserves the right to make further motions in the event additional discovery is provided, or if the interests of justice so require. 

           

Defendant relies upon the attached brief and oral argument, as well as testimony to be adduced at evidentiary hearings.

                                                                        ___________________________________

                                                                        Miles Feinstein, Esq.

                                                                        On behalf of the defendant

                                                                        Basilis N. Stephanatos

 

Miles Feinstein, Esq.

1135 Clifton Ave.

Clifton, New Jersey  07013

Attorney for defendant

Basilis N. Stephanatos and on the Brief

________________________________________________________________________

STATE OF NEW JERSEY,               )                   SUPERIOR COURT OF NEW JERSEY

                                         Plaintiff      )                                    LAW DIVISION

                                                            )                                   PASSAIC COUNTY

vs.                                           )    

                                                            )                                 CRIMINAL ACTION

                                                           )                        INDICTMENT NO.: 11-09-008101     

BASILIS N. STEPHANATOS,           )                                                     

      Defendant )           BRIEF IN SUPPORT OF OMNIBUS MOTIONS

                        )                          ON BEHALF OF DEFENDANT

                        )                            BASILIS N. STEPHANATOS

______________________________)_____________________________________________

Although it might seem at first blush to be irrelevant to the Court, it is important to relate in detail the genesis of the charges against defendant Stephanatos.  The easiest thing for the Court to do is to say that the background is immaterial to the specific charges before the Court.  But we know that this Court does not do the easy thing, but tries to do the right thing.  There is a common thread of abuse which culminated in the incident at bar.  It is highly relevant and crucial to the defendant’s state of mind and his position. 

By way of background, in Passaic County, from in or about 2000 until approximately December 2008, Robert Del Vecchio, Sr. participated in a conspiracy to rig bids at auctions for the sale of municipal tax liens in New Jersey by agreeing to allocate among certain bidders which liens each would bid on.  A felony charge was filed on September 30, 2013 in the U.S. District Court for the District of New Jersey in Newark, against Michael Mastellone, of Cedar Knolls, New Jersey, for participating in a similar conspiracy from in or about 2000 until approximately February 2009. The FBI said that Del Vecchio, Sr. and Mastellone proceeded to submit bids in accordance with the agreements and purchased tax liens at collusive and non-competitive interest rates.

By conspiring to rig the bids of municipal tax liens, the conspirators profited at the expense of those already struggling financially.  Class litigation alleging investors colluded to ratchet up interest rates in municipal auctions of tax liens, will move forward before the Honorable Michael Shipp, United States District Judge, who declined to strike down state and federal antitrust claims.

Judge Shipp held that the plaintiff property owners, including defendant, “allege more than a sufficient amount of factual material tending to show the existence of collusion on the local level” in New Jersey tax sales certificates.  “Furthermore, plaintiffs have included allegations sufficient to establish the larger, statewide conspiracy,” Judge Shipp added. “In sum, plaintiffs have set forth allegations supporting the existence of nearly 50 auctions in the state of New Jersey at which there was collusive conduct involving different iterations of the defendants.”

In New Jersey, municipalities sell liens for property-tax arrears at auctions. The rate of interest buyers can charge the property owner starts at 18 percent and is driven down with subsequent bids.  According to Judge Shipp’s opinion, the plaintiffs claim the financial institutions in the business of buying up that debt began a bid-rigging scheme around 1998 in which they obtained auction lists beforehand and consulted with one another before auction to divvy up the assets—so that there wouldn’t be multiple bids for each certificate driving the interest rate down.  In this system, the investors allegedly policed one another with threats and intimidation to assure that each of them stuck to the plan.

Judge Shipp said the plaintiffs lodged sufficient allegations with respect to each defendant: American Tax Funding, LLC, BBX Capital Corp., Fidelity Tax, Heartwood 55, PAM Investors, Crestar Capital and Mooring Tax Asset Group, as well as individual defendants associated with them.  In connection with the alleged statewide scheme, the plaintiffs provided “extensive allegations” about the U.S. Justice Department investigations that resulted in criminal charges against some of the individual defendants, Judge Shipp said.  He further stated that: “Yet, plaintiffs allege a conspiracy involving bid rotation or bid allocation.” Judge Shipp said: “As a result, it is equally plausible, under the terms of the alleged conspiracy, that a defendant’s absence from a particular auction was a direct result of the understanding reached among the defendants that certain liens were to be allocated and not to be bid upon by co-conspirators.”

Judge Shipp denied a motion by an individual defendant of Passaic County, Michael Mastellone, for a stay pending sentencing in his criminal matter. Mastellone pleaded guilty in September 2013 to a Federal Sherman Act violation. At the time, a dozen other individuals already had pleaded guilty to participating in the alleged bid-rigging scheme, according to a Justice Department release.

The substantial terms of the conspiracy were:

·         to suppress competition by agreeing to refrain from full competitive bidding against each other during the real estate foreclosure auction process in the District of New Jersey, including the homestead property of the Plaintiff;

·         to purchase auctioned real estate at a lower price than would have been possible during a competitive auction process;

·         to defraud the courts by filing false or fraudulent self-certifications using lawyers such as the Del Vecchios to force homeowners out of their homes;

·         to cause financial institutions, lienholders and/or homeowners to receive less than the full and competitive price for properties sold through real estate foreclosure auctions;

·         failed to disclose such payoffs on certain closing statements and other documents material to the foreclosure auction process, and

·         obtained property and money from financial institutions, lienholders and/or homeowners under false or fraudulent pretenses;

Part of the methods of the conspiracy were:

Filing fraudulent self-certifications with the courts and/or court clerks to enable them to obtain illegal Writs of Possessions and to violate the possessory rights of homeowners; sought and received economic benefits from the rental and sale of real estate purchased through the rigged foreclosure auction process; and used certain proceeds from the rental and sale of real estate purchased through the rigged foreclosure auction process to make certain payoffs in furtherance of the conspiracy.

As a direct and proximate result of the unlawful scheme, people such as defendant, were injured and financially damaged in their business and property by having to pay more interest with respect to their delinquent tax obligation than they would have absent the coconspirators’ unlawful activities, and having the equity in their property impaired, and in some cases, losing title to their properties in tax sale foreclosures they were unable to prevent due the impairment of their creditworthiness resulting from the tax lien foreclosures.

Robert A. Del Vecchio committed a number of other crimes as related to this case, by making an ex-parte fraudulent certification to a Mercer County Clerk in May 2011.  Defendant’s home was located in Passaic County, but to deceive the courts and to violate the possessory rights of defendant, Del Vecchio made the conscious decision to file his fraudulent ex-parte certification in Mercer County, in violation of state law; stating that defendant had no possessory interests in his home.  Del Vecchio then hired his friends, Passaic County officers Lucas and D’Agostino (he resides in the same town as Del Vecchio), to perform an unlawful eviction from defendant’s home and committed a forceful entry in violation of the New Jersey Forceful Entry statute.  Defendant asserts that Del Vechhio lied to Judge McVeigh that defendant owed $65,000 in taxes without revealing to Judge McVeigh that the defendant was in dispute with Wayne Township due to the over-assessment of his property and that the taxes allegedly “owed” (Defendant disputes that he owed any taxes to the Township) were significantly less.  Del Vecchio continued to feed Judge McVeigh, on an ex-parte basis, lies and fabrications, e.g.,  that Defendant had not paid taxes since 1993.  These were the same practices that Del Vecchio used throughout his area of fraudulent activities (Townships of Wayne, Borough of Fort Lee, his hometown of Hawthorne, and many other municipalities).  Robert Del Vecchio also served as a lawyer for defendants American Tax Funding, LLC and American Tax Holdings, LLC and Plymouth Park Tax Services, LLC.  Del Vecchio reached an agreement with his co-conspirators not to bid for himself or the Del Vecchio Pension Trust and would instead allow American Tax Funding or American Tax Holdings or Plymouth Park Tax Services, LLC to charge 18 percent interest or a greater rate onto the tax lien certificate.  In exchange, Del Vecchio would represent the others in any foreclosure and other legal proceedings.  Del Vecchio would also make false certifications to the courts and clerks of the courts that the property owners have no possessory interests in their homes so that his conspirators would seize homeowners’ property, enriching themselves and causing many millions in property and business damages to homeowners, including the defendant.

It is the defendant’s position that he was not personally liable for the property taxes and no personal judgment could have been issued against him.  Only an in rem proceeding could have been legally instituted to take title from him and to force him out of his residence.  However, according to New Jersey law only the municipality can institute an “in rem” proceeding.  The municipal-held liens can be foreclosed by municipalities under the In Rem Tax Foreclosure Act codified in N.J.S.A. 54:5-104.29 et seq.  However, a private entity, such as ATF and Del Vecchio, is not allowed by New Jersey law to perform in rem foreclosures. 

What these conspirators did, then, was to treat the real estate taxes as a personal debt and they used the “in personam” foreclosure proceedings that are applicable to debtor-creditor residential mortgage proceedings or in situations where a person is personally liable for a debt.  However, according to New Jersey law "A tax against real estate is not a debt of the owner; it is not founded on a contract express or implied but is an imposition against the property and no personal liability attaches." (emphasis added) Francis Realty Co. v. Newark, 16 N.J. Misc. 328, 330 (Essex Co. Cir. Ct. 1938).  This position is supported by Rothman v. River Edge, 149 N.J.Super. 435, 374 A.2d 36 (App.Div. 1977), certif. den., 75 N.J. 19, 379 A.2d 250 (1977) in that court's statement that the unpaid taxes could not result in a judgment against the taxpayers but shall be a lien against the premises. [149 N.J. Super. at 442, 374 A.2d 36].

Thus, because the real estate taxes were not a personal debt of the defendant and no personal liability attaches, these conspirators could not have used the residential mortgage foreclosure proceedings or the “in personam” foreclosure proceedings to determine ownership and possession of the land and actual possession of the land.  This could only have happened through an “in rem” proceeding and that proceeding could have only been conducted by municipalities under the In Rem Tax Foreclosure Act codified in N.J.S.A. 54:5-104.29 et seq.  Thus, the actions of the conspirators were thoroughly unlawful and also prohibited by the Public Use Clause of the Federal and State Constitutions.  These irregularities also raised issues of the Taking of Private Property without Due Process of Law, i.e., a Due Process 14th Amendment violation.

Here, there is no dispute that defendant’s property was taken for a private purpose, as the almost $500,000 was given to ATF and Robert Del Vecchio for a few thousand dollars in taxes. 

The conspirators and the Sheriff’s Department knew that the statutes and Appellate case law protected defendant’s right to remain in actual possession of his residence.  In addition, N.J.S.A. 2A:39-7 states that title shall not be an issue since Defendant was in continuous possession of his residence for 16 years.  N.J.S.A. 2A:39-7 Title not inquired into; defense of 3 years possession.  Title shall not be an issue in any action commenced under this chapter. 3 years peaceable possession by the defendant shall be a defense to the action.

This Court should note that defendant’s residence was located in Passaic County, not Mercer County.  Therefore, Mercer County Judge Jacobson had no jurisdiction over the property or the person and as a result,  all her orders were null and void ab initio.  N.J.S.A. 2A:39-1 prohibits the unlawful entry in any real property occupied solely as a residence by the party in possession, unless the entry and detention is made pursuant to legal process as set out in N.J.S.A. 2A:18-53 et seq.   N.J.S.A. 2A:39-1 provides that:

 “No person shall enter upon or into any real property or estate therein and detain and hold the same, except where entry is given by law, and then only in a peaceable manner. With regard to any real property occupied solely as a residence by the party in possession, such entry shall not be made in any manner without the consent of the party in possession unless the entry and detention is made pursuant to legal process as set out in N.J.S.2A:18-53 et seq., as amended and supplemented; P.L.1974, c.49 (C.2A:18-61.1 et al.), as amended and supplemented; P.L.1975, c.311 (C.2A:18-61.6 et al.), as amended and supplemented; P.L.1978, c.139 (C.2A:18-61.6 et al.), as amended and supplemented; the "Tenant Protection Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.); or N.J.S.2A:35-1 et seq. and "The Fair Eviction Notice Act," P.L.1974, c.47 (C.2A:42-10.15 et al.). A person violating this section regarding entry of rental property occupied solely as a residence by a party in possession shall be a disorderly person”.

Defendant was in possession of his home continuously since 1995 and it was being used as his residence. 

In May 2011, following the issuance of a judgment, based upon fraud, by a Mercer County Court that had no jurisdiction over the defendant or his residence, defendant became at least a “tenant at sufferance”.  Defendant also had a significant possessory interest, including the filing of a Suit to Vacate the Tax Deed, the filing of two appeals, the possession of a business in the premises (Metropolitan Environmental Services, PC and Metropolitan Environmental Services), and the right to buy back the rights to the property. See N.J.S.A. 54:5-104.100.  This state law is consistent with the legislative findings in N.J.S.A. 2A:18-61.1a. 

Here, Defendant alleges that no taxes were due to Wayne Township and the Township did not have the power to sell his homestead property due to the above-mentioned constitutional violations.  Defendant also alleges that his federal rights of equal protection and due process have been violated.

The applicable statutes here are the so called Summary Dispossess Act statutes. The Summary Dispossess Act, N.J.S. 2A:18-53 et seq. was enacted in 1951 and amended in 1983 and 1991.  Since enactment of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., the Summary Dispossess Act has been understood to cover the eviction of nonresidential tenants and residential tenants not covered by the Anti-Eviction Act. This is a very critical issue for the Court to note. Source: STATE OF NEW JERSEY, NEW JERSEY LAW REVISION COMMISSION, Final Report Relating to Landlord and Tenant Law, February 10, 2012

This Court should also compare the law of the state of New York, where similar process must be followed, i.e., the issue of actual possession must be decided by a Law Division Judge, after a new owner (a tax sale purchaser) has met the conditions for taking possession.  The court should note that ATF and Robert Del Vechhio did not take possession of the property;  they only wanted to remove defendant from the property.  They immediately sold the property for $330,000 to a third party.  Therefore, the conspirators could have sold the property without violently removing defendant from his home and place of business.

Based on New Jersey law and the law of other states, to remove a person in actual possession, the owner must occupy the premises himself (this was not the case here as ATF did not take actual possession of the premises and only took constructive possession) or no rent was being paid or for breach of the peace.  In other words, only after they met few exceptions (such as not paying rent, etc.) and through an Order from a Law Division Judge could the conspirators entered defendant’s property and remove him from his dwelling in tax lien cases.

The conspirators intentionally did not follow the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., and the Summary Dispossess Act, N.J.S. 2A:18-53 et seq. and refused to follow the Unlawful and Forceful Entry and Detainer statutes of the state of New Jersey, and they willfully lied to the Mercer County Clerk in May 2011 that there were no persons in the premises.  This was a willful misrepresentation by Robert Del Vecchio that no persons with possessory interests were present at the residence of defendant protected by either the Anti-Eviction Act N.J.S.A. 2A:18-61.1 et seq., or the Summary Dispossess Act, N.J.S.A. 2A:18-53 et seq. 

Robert Del Vecchio, Jr., Esq. and Robert Del Vecchio, Sr., Esq., who are both lawyers in New Jersey, knew that this was a residential property and that this was not a mortgage foreclosure case.  They knew that they had to comply with the Unlawful Entry and Wrongful Entry statutes – but they knowingly decided not to comply with state law.  They managed to fool the Sheriff’s Office or enlisted Officers D’Agostino and Lucas to violate the legal rights of the defendant to perform an unlawful search and unlawful entry and to forcefully remove defendant from his lawfully-occupied residence on June 28, 2011.  It is important to note that Robert Del Vecchio, Sr. plead guilty to a felony charge in the U.S. District Court (Newark).

N.J.S.A. 2A:18-57 requires that a judgment of possession must be issued by a Law Division judge, followed by a warrant for removal.  Specifically, state law requires that a Warrant for Removal must be obtained by a Law Division judge (see N.J.S.A. 2A:18-57 for non-leaseholders and N.J.S.A. 2A:42-10.1 for leaseholders).  2A:18-57 provides:

Judgment for possession; warrant for removal;  issuance

    If no sufficient cause is shown to the contrary when the action comes on for  trial, the court shall issue its warrant to any officer of the court, commanding him to remove all persons from the premises, and to put the claimant  into full possession thereof, and to levy and make the costs out of the goods  and chattels of the person in possession.

    No warrant of removal shall issue until the expiration of 3 days after entry  of judgment for possession, except as provided for in chapter 42 of this  Title.

L.1951 (1st SS), c.344; amended by L.1979, c. 392, s. 1, eff. Feb. 6, 1980.

Furthermore, Section 2 of P.L.1974, c.47 (C.2A:42-10.16) reads as follows:

    2. In any proceeding for the summary dispossession of a tenant, warrant for possession issued by a court of appropriate jurisdiction:    a. Shall include a notice to the tenant of any right to apply to the court for a stay of execution of the warrant, together with a notice advising that the tenant may be eligible for temporary housing assistance or other social services and that the tenant should contact the appropriate county welfare  …

No such notice was provided in the Writ of Possession issued by a Clerk of Mercer County (again, that Mercer County court had no jurisdiction over property that is located in other counties).

The conspirators fraudulently and willfully refused to obtain such a judgment of possession from a Law Division judge and a warrant for removal and instead provided a certification to a Clerk of the Mercer County that no persons with possessory interests were present, when in fact defendant was in actual peaceful possession continuously since 1995.

In most states, including New Jersey, “it is immaterial in a suit for forcible entry and detainer whether plaintiff has the legal right of possession, and the action lies so long as the plaintiff had peaceful prior possession and was forcibly put out of that possession by the defendant, even if the plaintiff was devoid of any of the muniments of title or was a trespasser.” 35A Am. Jur. 2D Forcible Entry and Detainer § 18 (2001). See, e.g., Allen v. Harris, 755 S.W.2d 393, 395 (Mo. Ct. App. 1988) (“In an action of forcible entry and detainer, the sole issue is a question of actual possession, and not the right of possession, since one may be wrongfully in possession, yet he cannot be dispossessed against his will.”); Floro v. Parker, 205 So. 2d 363, 365-66 (Fla. Dist. Ct. App. 1967) (holding legal right of possession “immaterial” in an action for forcible entry and detainer).

Defendant’s property was assessed by the Wayne Township Assessor at $237,000 from 1995 through 2011.  The average common level ratio in Wayne Township from 1995 through 2011 is 50 percent;

Based on an average common level ratio of 50 percent, and an assessed value of $237,000, the Assessor valued defendant’s property at $237,000/0.50 = $474,000.  This is the “true value” used by the Assessor in determining defendant’s assessed valuation.

The actual value of defendant’s property in 2011 has been established at $330,000 based on the sale of the property in December 2011 after the conspirators forcibly and illegally removed defendant from his home.  Accordingly, the Assessor’s “true value” was forty percent greater than the actual value of defendant’s property (40%= $474,000/$330,000);  this over-valuation resulted in forty percent more taxes being levied onto defendant’s property;

In May 1995, the defendant bought the property for $237,000.  This is evidence of the fair market value or true value of the property in that year.  In 1996, the Assessor, however, despite having knowledge of this true value, assessed defendant’s property as if his property was valued at $475,000.  This was an impermissible over-assessment because it exceeds the common level ratio by more than 15 percent.  Defendant had been writing to the municipality that his property was in fact over-assessed. Defendant informed the municipality numerous times that the collection that they were attempting was illegal and unconstitutional, but to no avail. 

This over-assessment of defendant’s property continued from 1996 through 2011, resulting in more than $45,000 in unlawful charges onto defendant’s property.  As a result, it is defendant’s position that he did not owe any money to the municipality.

The grand jury was not told of defendant’s accusations that the now convicted conspirators had violated numerous state laws, including the criminal conspiracy, the violation of the New Jersey Constitution, the Forceful Entry and Detainer law, the over-assessment of his property, the flooding in his property, and the New Jersey Tax Sale Law.  Defendant initially hired Carl Herman, Esq. to get him to the Grand Jury and present his exculpatory evidence that shows that all the accusations of the Passaic County sheriff’s employees were fabricated.  But it appears that the Prosecutor refused to permit defendant to present any evidence to the Grand Jury, despite a letter sent to the Prosecutor’s office by Mr. Herman. 

In Royal Tax Lien Services, LLC v. Morodan, (2014 Appellate Division decision A-6030-12T1) the Court stated:

“Moreover, if the final judgment stands, plaintiff will receive property that, according to defendants, is valued at $650,000 for an approximate $65,000 investment. That is a factor that should have been taken into account when balancing the equities. See I.E.'s, L.L.C. v. Simmons, 392 N.J. Super. 520, 537 (Law Div. 2006) (tax sale certificate foreclosure system can be "Dickensian" where owners hold substantial equity in property. "Until the Legislature devises a better system, courts of equity must do their best to balance the equities, taking into account the necessity of allowing the transfer of clear title and the need to compel the payment of property taxes against the necessity of ameliorating, in appropriate circumstances, the onerous impact of the procedure".  The court further stated the following:

“Finally, the judge did not even mention plaintiff's alleged failure to provide adequate notice to defendants. It is always necessary for a judge to render findings of fact and rulings of law; in this type of case where the courthouse doors seem to have been slammed shut on defendants who might have thereby inequitably lost a valuable property, it was crucial. See Ronan v. Adely, 182 N.J. 103, 110-11 (2004); Cameco, Inc. v. Gedicke, 157 N.J. 504, 509-10 (1999); Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 562-63 (App. Div.), certif. denied, 200 N.J. 476 (2009)”.

Here, defendant had full equity in his home which was valued by Wayne Township for almost $500,000.  It is defendant’s position that Judge McVeigh failed to perform fact-finding and rulings of law to determine the significant equity defendant had in his home.  The alleged taxes owed, if any, (although defendant disputed the taxes due to overvaluation of the home) were no more than $20,000.  Judge McVeigh, to justify her actions stated that defendant did not pay taxes since 1993, which was not true.  Defendant only disputed the over-assessment of his property and did pay all taxes from 1993 through 2005; then, after defendant’s property was damaged by flooding, he paid about 50 percent of the taxes assessed.  In January 2013, the Wayne Township Tax Assessor admitted that the properties were overvalued and that no assessment had been performed since 1995.  These statements were made by Tax Assessor Dorothy Kreitz in a letter to defendant.

Judge McVeigh failed to perform any fact finding and statements of the law and instead repeated the falsehoods of the conspirators:  Robert Del Vecchio and American Tax Funding.  Consistent with the decision of the Appellate Division cited above, defendant submits that it is likely that the Appellate Division would have vacated the Chancery Court’s judgment issued in May 2011.  But the conspirators acted quickly and fraudulently by hiring the sheriff to force defendant out of his home without the docketed appeals ever being heard. 

A Forcible Entry and Detainer is an action in New Jersey that a landlord, or new property owner can take if the existing occupant refuses to leave after appropriate notice.  The occupant could be either a tenant or original owner of property that was sold at a foreclosure or trustee's sale.  The laws governing forcible entry and detainer actions are different if the property is residential or non-residential.

The tenant/occupant must receive a written demand to vacate the property.  No such demand was received by the defendant.  This term normally is either 5 or 7 days, unless the contract states otherwise. After the 5-7 days expire and the tenant/occupant still refuses to leave then a complaint for a forcible detainer action can be filed. The statutes provide for a short notice period before a court hearing. The sole issue at the court hearing is whether or not the tenant/occupant has the right to possession.  If they do not then they will be found guilty of a forcible entry and detainer. 

The law in New Jersey is clear. Landlords or their employees or their agents (the sheriff’s officers are considered in fact agents of the conspirators ATF and Robert Del Vecchio, as they were paid by them) can’t legally evict tenants by themselves. (These kinds of evictions are sometimes called self-help evictions.) Police officers cannot evict tenants. Only a special court officer with a warrant for removal issued by a judge can actually evict a tenant. Landlords who try to evict tenants by themselves are doing something illegal, even if they have gone to court and sued the tenant for eviction. N.J.S.A. 2A: 39-1 and 2; N.J.S.A. 2A:18-57; N.J.S.A 2A:42-10.16.

On January 12, 2006, the law was changed. Illegal evictions are now a disorderly persons offense.

N.J.S.A. 2C:33-11.1 compels the following:

1.     The new law requires the police or any other public officials who find out about an illegal “self-help” eviction to warn the landlord or his workers to stop. If the landlord does not stop, then the landlord has broken the law. If the police arrive after the landlord has already locked the tenant out, the police must tell the landlord to let the tenant go back in. If the landlord refuses, then the landlord has broken the law.

2.     The police must make sure that tenants who are illegally evicted get back into their

home or apartment. If the landlord tries to keep the tenants from going back in, the police must stop the landlord. The police must also give the landlord a summons to go to court, or even arrest the landlord if he refuses to let the tenant go back in.

3.      The new law says that a landlord who tries to get a tenant out by doing any one of the following things is breaking the law. These things are now disorderly persons offenses: (1) The landlord uses violence or threats of violence to get the tenants out; or (2) the landlord says or does other things to try to scare the tenants into leaving; or (3) the landlord takes the tenant’s property and puts it outside; or (4) the tenant lets the landlord in peacefully, and then the landlord forces the tenant out; or (5) the landlord padlocks the door or changes the locks; or (6) the landlord shuts off the electricity or gas, or has them shut off, in order to make the tenant leave; or (7) the landlord tries anything else to get the tenant out.

4.     The only way the landlord can evict the tenant is if a special court officer with a legal court order called a warrant for removal comes out himself and does the eviction. And even before the special court officer can do the eviction, he must give a copy of the warrant for removal to the tenant (or leave a copy on the tenant’s door) at least three days before coming out to do the actual eviction. The new law says that the warrant for removal must tell the tenant many things, including that self-help evictions by landlords are now disorderly persons offenses. The warrant must also let the tenants know the earliest day on which the special court officer can come back to do the eviction.

5.     The new law says that if a special court officer does do a legal eviction, he or she must fill out a new form called an “execution of warrant for possession.” The new form must say when the legal eviction took place, and give the name, signature, and position of the special court officer who did the eviction. The special court officer is required to immediately give a copy of this new form to both the landlord and tenant (or a member of the tenant’s family), and also to post it on the door of the dwelling unit.
         6.    If the landlord does not have a copy of a valid execution of warrant filled out by a special court officer, then the landlord is doing an illegal eviction. The police officer must tell him to stop trying to evict the tenant. If the landlord does not stop, then the police officer must stop the landlord and charge him with a disorderly persons offense. The police officer must also protect the tenant and see that the tenant gets back into the home.

        7.   The new law says that the Attorney General of New Jersey must make sure that all state and local police officers, prosecutors, and public officials know about the new law. Each police officer must be given a form that describes the new law and the police officers’ responsibilities to enforce it. Police officers must also be given special training to make sure they know what they have to do to stop illegal evictions.

Officers Lucas and D’Agostino testified during the grand jury proceedings that they performed a forceful entry into a residential property in direct violation of N.J.S.A. 2A:33-1 et seq.  Their defense is that they performed this forceful entry pursuant to a court order.  However, no Warrant for Removal had been issued by a Law Division Judge who had jurisdiction over the property, as is mandated by the Unlawful Entry and Detainer state law (see N.J.S.A. 2A:18-57):  The ex-parte Writ of Possession had been issued not by a Law Division Judge as is required by New Jersey Law, but by a Mercer County Clerk, who had no jurisdiction over the property, after the fraudulent ex-parte certification by conspirator Del Vecchio, Esq (working for co-conspirator American Tax Funding, LLC (“ATF”)) that no persons with possessory interests were present at the residence. 

Therefore, it is an irrefutable fact that the officers knew that they had to obtain a Warrant for Removal but failed to do so.  The Sheriff’s Office forcibly evicted defendant in violation of state law.  The Sheriff’s office was paid thousands of dollars by the conspirators ATF and Robert Del Vecchio to perform these illegal acts.  During the grand jury proceedings, Lucas and D’Agostino lied to the grand jury when they said that they were merely trying to deliver eviction papers.  They stated that “several officers were dispatched at the property”.  Typically only one officer is needed to serve documents, yet Lucas admitted in his testimony that  at least two sheriff’s cars and several officers went to the dwelling of defendant not to serve documents only, but also to remove him in violation of the New Jersey Forceful Entry and Detainer laws. 

The conspirators used mortgage foreclosure procedures that are not applicable to a tax lien foreclosure case.  The grand jury was never informed of these crucial facts.

Defendant incorporates by reference the facts, arguments, authorities and Appendices provided to this Court in 2012 with regard to the Motion to Change Venue.

Point I

The indictment must be dismissed with prejudice because the State mislead the Grand Jury and failed to present exculpatory evidence.  The State misled the Grand Jury regarding the commercial instrument located in defendant’s place of business; failed to inform the Grand Jury that defendant’s property was impermissibly over-assessed and no taxes were legally due; failed to provide to the grand jury exculpatory evidence obtained from defendant’s computer; refused to allow the defendant to testify at the grand jury proceedings as a factual witness and to provide clearly exculpatory evidence.  It was crucial that the State never informed the Grand Jury that the Passaic County Sheriff failed to obtain a mandatory warrant of removal (see n.j.s.a. 2a:39-1 unlawful entry prohibited) and that as result the sheriff’s employees were trespassing on defendant’s property

In November 2011, Assistant Prosecutor Peter Roby admitted before Judge Filko that no warrant for removal was obtained prior to the Passaic County Sheriff’s Officers entering defendant’s property and home.  A Warrant for Removal should have been obtained as is mandated by New Jersey law (N.J.S.A. 2A:39-1 et seq. and N.J.S.A. 2A:18-57).  The Sheriff’s employees committed a forceful entry and detainer in violation of the New Jersey Forceful Entry statutes.  However, they lied to the grand jury and told them that they were lawfully at defendant’s door step.  To further mislead the grand jurors, Officers Lucas and D’Agostino testified that they were just delivering process papers, when in reality they were trying to evict defendant from his dwelling without having to procure a Warrant for Removal issued by a Law Division Judge.  In fact, these two individuals testified that “several officers were dispatched to the property”, further proving that they were there to illegally evict defendant.  The Sheriff’s employees performed a forceful entry into a residential property in direct violation of N.J.S.A. 2A:33-1 et seq.  Their defense is that they performed this forceful entry pursuant to a court order. However, no Warrant for Removal had been issued by a Law Division Judge who had jurisdiction over the property, as is mandated by the Unlawful Entry and Detainer law (see N.J.S.A. 2A:18-57):  The ex-parte Writ of Possession had been issued by a Mercer County Clerk, who had no jurisdiction over the property, after the fraudulent certification by co-conspirator Robert Del Vecchio that no persons with possessory interests were present at the residence.

Specifically, for entering and removing a person from a residential property, N.J.S.A. 2A:18-57 requires that a judgment of possession must be issued by a Law Division Judge, followed by a Warrant for Removal.  State law also mandates that a notice be provided to the person in possession that he has the right to apply to the court for a stay of execution of the warrant, along with other notifications. 

As defendant stated in letters to this Court, at a hearing before Judge Roy McGeady, Bergen County Municipal Court Presiding Judge, the Judge was shocked to find out that no Warrant for Removal was obtained prior to entry of defendant’s home.  Based upon the above, the indictment must be dismissed with prejudice and all evidence obtained and/or seized must also be excluded and returned to the defendant.  Remember also that N.J.S.A. 2A:39-7 says that title shall not be an issue since defendant was in continuous possession of his residence for 16 years. 

The Passaic County employees and the conspirators who hired them prevented defendant from going before a Law Division judge to assert this defense.  That is why they acted with haste and fraud to remove him from his property.  It was never stated to the grand jury that defendant’s possession of his home was protected by New Jersey statutes and defendant had the right for a hearing before a Law Division judge.  The conspirators (Robert Del Vecchio and American Tax Funding) received a fraudulent conveyance (a title transfer) and they could have sold the home with defendant still inside it.  There was no reason at all to force defendant at gun point to leave the home, unless they would occupy it, i.e., take possession of the home.  But they (Robert Del Vecchio, ATF) did not occupy the home, as they immediately sold it to a third party.  This is critical.  The Grand Jury was never notified of this law and the indictment must be dismissed for that reason alone.

It is clear that under certain circumstances a prosecutor has a duty to present exculpatory evidence to a grand jury.  In State v. Gaughran, 260 N.J. Super. 283, 290 (Law Div. 1992) (quoting State v. Engel, 249 N.J. Super. 336, 359 (App. Div. 1991)) a trial court dismissed an indictment where a prosecutor failed to present exculpatory medical evidence directly contradicting a complainant’s testimony in a sexual assault case.  The opinion noted there was no issue as to the sufficiency of the evidence before the grand jury, but rather whether the failure to present exculpatory evidence “stripped the grand jury of its function to protect the innocent from unfounded prosecution.” Gaughran, 260 N.J. Super. at 287.  In State v. Hogan, 144 N.J. 216, 227 (1996), our Supreme Court held that there is a prosecutorial duty to present exculpatory evidence under circumstances where it directly negates guilt. In doing so, the New Jersey Supreme Court explained that the prosecution is precluded from “deceiving” the grand jury or presenting its evidence in a way that is tantamount to telling the grand jury a “half-truth” because any “distorted version of the facts interferes with the grand jury’s decision-making function”. 

It is the defendant’s position that the State deceived the Grand Jury; refused to provide clearly exculpatory evidence and defenses and refused to allow the defendant and/or his witnesses to testify in this matter.

Defendant submits that he did not have the chance to vacate a judgment that was wrongfully issued against him by Judge McVeigh.

Defendant filed a complaint with the FBI and the U.S. Attorney’s Office and an investigation revealed a massive conspiracy.  The conspirators took defendant’s property by violating the antitrust and tax sale laws, by violating the forceful entry and detainer laws, and other offenses.  There was an intentional overvaluation of defendant’s property so that more taxes could be collected.  They also knew that flooding had reduced defendant’s homestead property value.  Judge Margaret McVeigh did not consider defendant’s full equity in his home and she never conducted a bench trial to determine the facts consistent with Rule 1:7-4(a). 

Judge McVeigh simply issued a judgment against defendant based on the statements of the conspirators Robert Del Vecchio and American Tax Funding (ATF).  The entire panorama of circumstances indicate that defendant was denied due process.  There are issues and defenses of entrapment, duress and improper government conduct.

Defendant had requested the Chancery Court to address the over-valuation of his property.  However, the conspirators (especially Robert Del Vecchio) lied to Judge McVeigh and assured her that “all issues have been adjudicated”.  Judge McVeigh relied on the assertions of the conspirators and stated that all issues had been adjudicated, that defendant had not paid taxes since 1993 (another fraud on the grand jury) and refused to perform any fact finding hearing or any trial to confirm the “facts” upon which the conspirators were relying.  This permitted the conspirators to charge defendant with the impermissible over-assessment.  In addition, they also charged defendant with an 18 percent interest rate on these over-assessments and an additional 6 percent in penalties.   Thus, a small tax based on the illegal over-assessment of $20,000 plus ended up being approximately $49,000 to 65,000.

The New Jersey criminal statutes allow a person to carry a gun in his place of business or premises.  See 2C:39-6-Exemptions.  e. Nothing in subsections b., c. and d. of N.J.S.2C:39-5 shall be construed to prevent a person keeping or carrying about his place of business, residence, premises or other land owned or possessed by him, any firearm..”.

In District of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court held that the Second Amendment “right of the people to keep and bear arms” really does refer to the actual people and really does recognize their right to possess and carry firearms for self-defense, militia use, and hunting. Heller, 554 U.S. at 599.  Heller was followed in 2010 by McDonald v. City of Chicago, which extended the right to bear arms to states and localities through the Fourteenth Amendment. 130 S. Ct. 3020, 3026 (2010).  The specific law Heller invalidated was a ban on possession of handguns in the home. 

Thus, defendant has the federally-protected fundamental right to keep and bear arms inside his premises for the protection of himself, his family and his property.  Combine this with the fact that Lucas and D’Agostino have lied about the events of June 28, 2011 and have presented numerous conflicting versions and revisions without even having been cross-examined by the defense.  This should have been brought out before the grand jury.  Based upon the above, the indictment must be dismissed with prejudice. 

POINT II

The indictment must be dismissed with prejudice because the four (4) plus years case delay deprived the defendant of his constitutionally-guaranteed right to a speedy trial.

The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 101, 117 (1972), and the New Jersey Supreme Court in State v. Cahill, 213 N.J. 253 (2013), examined the constitutional right to a speedy trial in the context of a criminal charge and a DWI charge, respectively. The New Jersey Supreme Court instructed, “[p]rompt disposition of criminal or quasi-criminal charges addresses the interest of the accused to be treated fairly … and prevents prejudice to the accused.” Id. at 276.

Courts should assess “four non-exclusive factors” to determine if a defendant’s constitutional speedy trial guarantees have been violated: “length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant” Id. at 264.; see also State v. Farrell, 320 N.J. Super. 425 (App. Div. 1999); State v. Tsetsekas, 411 N.J. Super. 1 (App. Div. 2009).

“There is no set length of time that fixes the point at which delay is excessive.” State v. Tsetsekas, 411 N.J. Super. at 12.  In Cahill, the Court instructed that a gauge to a “presumptively prejudicial” delay is “the amount of time customarily required to dispose of similar charges.”  State v. Cahill, 213 N.J. at 265.

 The Cahill Court referred to New Jersey Supreme Court Chief Justice Wilentz’s July 26, 1984 Directive #1-84 instructing that DWI charges be disposed of in 60 days. Id. at 269. The Court called the 60-day period a goal, not a “bright line rule.” Id. at 270.  However, the Court said, “90 to 120 days should be the norm for disposing of [DWI] cases.” Id. at 274. The Court further noted that a case that “approaches one year” is “presumptively prejudicial.” Id. at 265.  In Cahill, the Court called the 16-month delay “too long.” Id. at 277. Likewise, in State v. Tsetsekas, the Court found that 344 days, “more than five times the stated [Supreme Court] objective” … weighted heavily for the defense. State v. Tsetsekas, 411 N.J. Super. at 11.

Here, there is already a more than four and a half years delay in proceeding with the case since the June 28, 2011 assault charges.  Considering defendant is filing a significant number of substantive motions and defendant is asking for a significant amount of discovery, it may very well be a very lengthy additional time period before this case reaches trial.  These enormous delays are presumptively prejudicial, considering that the defendant is a licensed expert whose reputation has been tarnished by the charges and who cannot earn a living.

A defendant does not have an obligation to assert his right to a speedy trial because he is under no obligation to bring himself to trial. Id. at 266. Court delays are charged to the State, not to the Defendant. State v. Farrell, 320 N.J. Super. at 450-451.

Here, the original trial judge decided that the motion to change venue should be heard, because of its nature, before any other action was taken in this case.  It was not decided and the case was transferred to a second judge.  The motion to change venue was argued a long time ago and the Order and written decision were received in November, 2015.  The delay has created economic and non-economic hardships for the defendant and his family.  The delay must be charged to the State. State v. Farrell, 320 N.J. Super. at 450-451.

Furthermore, the defendant needs discovery of some very important evidentiary information that may assist in his full exoneration of most or all of the charges.  Specifically, the defendant is entitled to copies of video recordings from any cameras on the sheriff’s vehicles that arrived at the defendant’s home on June 28, 2011.  These videotapes may show that Lucas and D’Agostino have been lying regarding their location, and specifically Lucas’s location at the porch in front of the defendant’s dwelling.  Defendant is concerned that this crucial evidence may have been destroyed by the sheriff’s office, the same way the yews and rhododendron bushes have already been removed from the property (these bushes is where Lucas claims he fell, and are crucial in showing to the jury the actual location of Lucas and that Lucas prepared false reports). 

In addition, defendant is entitled to copies of any audiotapes of the conversations between the sheriff’s officers at the property on June 28, 2011 and other officers not located at the property at the time or conversations with any other officer, Passaic County personnel or the conspirators regarding the events of that date.  These audiotapes may show once again that Lucas prepared false reports regarding his position at the dwelling of the defendant, whether he rang the doorbell or not, where he fell and how, etc.   This is absolutely crucial evidence.  Any reconstruction of the incident investigation must be turned over to the defendant.  It should have been turned over a long time ago.  Defendant wants counsel to remind the Court that more than a year ago (April 2014) defendant sent a letter to the Court urging the Court to promptly proceed with the case.  Here is an excerpt from that letter;

“I also want this Court to realize that we will be filling a significant number of motions challenging the grand jury proceedings.  We allege that the grand jury proceedings were tainted by fraud on the court/grand jury, false testimonies, hiding exculpatory evidence from the grand jurors, refusing to instruct the grand jurors of applicable defenses, misleading the grand jurors, eliciting false testimonies, and so on.  Thus, my concern is that if it takes more than a year to rule on a motion to change venue, how long will it take to adjudicate the 25+ motions we have put together for dismissal of the tainted and/or fraudulently procured indictment?  I have suffered significant economic and non-economic damages and I continue to suffer significant economic and non-economic damages every day this case is delayed.   I am urging this Court to read these documents into the record, including my concerns with all the delays in proceeding with the motions”.

In Cahill, the Court explained that the “minimization of anxiety attributable to unresolved charges” is one of the interests the speedy trial right is designed to protect. Id. at 266. “A speedy trial violation can be established without evidence of prejudice.” Id. at 274 (citing State v. Farrell, supra., 320 N.J. Super. at 446. The Cahill Court explained, “every unresolved case carries with it some measure of anxiety.” Id.  “This is particularly true when one of the sanctions [for DWI is] a license suspension.” Id. 

Here the defendant faces serious criminal charges and he is in jeopardy of a potentially long prison sentence.

The court instructed in State v. Farrell, “prejudice to a defendant resulting from delay is no longer confined to inability to defend on the merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution and the like.” State v. Farrell, 320 N.J. Super. at 452.

Likewise, the Court in Tsetsakas recognized that “significant prejudice may also arise when the delay causes the loss of employment or other opportunities, humiliation, the anxiety in awaiting disposition of the pending charges, the drain in finances incurred for payment of counsel or expert witness fees and the other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances. State v. Tsetsekas, 411 N.J. Super. at 13.

Here, defendant has suffered very significant losses of employment, as employers performed background checks and refused to hire defendant, even after they made employment offers.  In addition, defendant lost several professional licenses due to the outstanding charges, leading to further economic losses.  Defendant also has not been able to obtain state licenses (including the Licensed Site Remediation Professional license) to do professional work because of the pending, unresolved charges.  Several New Jersey licensing boards even denied defendant the application to sit for exams, causing defendant to lose very significant business and/or employment opportunities.  The net result of these prolonged delays is potentially multi-million dollars in economic damages.

As a professional expert engineer, defendant has also suffered irreparable reputation loss that essentially destroyed his career that he worked many decades to build. 

POINT III

The indictment must be dismissed with prejudice due to prosecutorial misconduct and as violative of defendant’s right to due process of law under the fifth and fourteenth amendments to the United States Constitution and under the New Jersey Constitution as no definitions as to the general requirements of culpability (definitions of the words “purposely,” “knowingly,” “recklessly” and “negligently” were provided to the grand jury).

Key to this case is the defendant’s state of mind at the time of the alleged offenses.  Count 1 of the Indictment charges a violation of N.J.S.A. 2C:39-4 which provides:

Any person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree. (Emphasis supplied).

Crucial to a violation of this statute is the purpose for possession of the firearm—said purpose must be unlawful to constitute a violation.  The unlawful purpose element is all the more relevant in a case such as this in which the defendant legally possessed all of the firearms.  Even more significantly, one of the key defenses here is that the defendant never possessed the requisite states of mind to sustain any conviction and that the defendant never intended to cause harm to anyone, other than protecting his dwelling from intruders and attackers as he is authorized to do so by New Jersey Law, see N.J.S.2C:3-4 and N.J.S.2C:3-6.

Counts 2 and 3 charge that the defendant committed third-degree aggravated assault by pointing a firearm at Officers Lucas and D’Agostino. N.J.S.A. 2C:12-1b(9) provides:

A person is guilty of aggravated assault if he . . . knowingly, under circumstances manifesting extreme indifference to the value of human life, points or displays a firearm, as defined in subsection f. of N.J.S. 2C:39-1, at or in the direction of a law enforcement officer. (Emphasis supplied).

Count 4 charges that the defendant “did recklessly create a risk of widespread injury or damage by purposely or knowingly barricading himself into 687 Indian Road . . . while armed with a deadly weapon, contrary to the provisions of N.J.S. 2C:17-2c.” (Da4; emphasis supplied).

N.J.S.A. 2C:17-2c provides, in pertinent part:

A person who recklessly creates a risk of widespread injury or damage commits a crime of the fourth degree, even if no such injury or damage occurs.

N.J.S.A. 2C:17-2e provides: “For purposes of this section, widespread injury or damage means serious bodily injury to five or more people or damage to five or more habitations or to a building which would normally have contained 25 or more persons at the time of the offense.”

 Count 5 charges that the defendant:

with purpose to hinder his own apprehension, conviction or punishment, for the crime of possession of a weapon for an unlawful purpose, did prevent or obstruct by means of force or intimidation Passaic County Sheriff’s officers, from performing an act which might aid in the discovery or apprehension or in the lodging of a charge against him, contrary to the provisions of N.J.S. 2C:29-3b(2). (Emphasis supplied). 

N.J.S.A. 2C:29-3b(2) provides:

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 Revised Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes, he . . . [p]revents 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.

This statute further provides that:

An offense under paragraph (3) of subsection b. of this section is a crime of the second degree.  Otherwise, 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 person’s offense.

The defendant is charged with third-degree hindering apprehension.  It should be noted by this Court, that at no time during the 5-hour ordeal did anyone tell defendant that he was under arrest for any offense.  This is critical for the disposition of this charge.

The entire Indictment must be dismissed with prejudice as there is no indication in the grand jury transcript that instructions were given to the grand jurors as to the definitions of culpability under N.J.S.A. 2C:2-2(b); specifically, “purposely,” “knowingly,” “recklessly,” and “negligently.”  On the day in question, the defendant was at his computer performing his regular business during the time of the alleged offenses (see Motion to Change Venue, Records of calls and e-mails made by the defendant”, Da55-56).  An electronic email and telephone record was available to the prosecutors as they seized the defendant’s computers that irrefutably showed the whereabouts of the defendant.  The irrefutable electronic evidence shows that the defendant was inside his home and that he was working on his business or filing appeals.  The evidence shows that he had no intent of injuring anyone, as the State alleged, but that he wanted to save his home and business.  His purpose, intent, or behavior to protect his home is absolutely lawful and state law protects his right to defend his home.  This is clearly exculpatory evidence available to the State. However, the State failed to provide such exculpatory evidence to the grand jury in order to secure an indictment.

To reiterate, Count 1 requires an unlawful purpose of the firearm; Counts 2 and 3 require “knowingly” pointing the firearm under extreme indifference circumstances; Count 4 requires “recklessly” creating a risk of widespread injury or damage by “purposely or knowingly” barricading himself; and Count 5 requires the “purpose” to prevent or obstruct.

This Court must order the procurement of the SWAT team audio and video recordings.  The recordings will prove that:

1.    Defendant didn’t want anyone to enter his home and property.  Only police officers armed with Warrants are allowed to enter such property and move defendant out.  The sheriff’s employees Lucas and D’Agostino did not have Warrants for Removal;

2.    Defendant never threatened anyone.  He only stated that there will be his own bloodshed because of the aggressive and unlawful actions of the sheriff’s employees.

3.    Defendant never pointed a gun at anyone;

4.    Officer Celix never told defendant that he was under arrest;

5.    Defendant wasn’t told that he had committed any offense;

6.    Defendant was not told that the officers had a search or an arrest warrant;

7.    Defendant told an officer not to destroy his business equipment.  Defendant was shocked that the officers thought it was a bomb.  Assistant prosecutor Peter Roby admitted in open court before Judge Filko that the instrument was not a bomb and that defendant had placed it there to be picked up by a vendor, Pines Environmental, Inc.  Later, officers Lucas and D’Agostino changed their story and claimed that they thought it was a “metal ammunition box”, also a false assertion.

Accordingly, three of the four (“purposely,” “knowingly” and “recklessly”) types of culpability are alleged, with absolutely no definitions given of these terms.  In addition, by failing to instruct the jury as to “negligently” the grand jury was unfairly precluded from exonerating the defendant of all charges, for if the grand jurors found that the defendant acted “negligently” as to each count (as opposed to “purposely,” “knowingly” or “recklessly”) there would have been a “no-bill.”

The following are the definitions which must have been given to the Grand Jury:

N.J.S.A. 2C:2-2b(1) [Purposely].  A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.  A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.  “With purpose,” “designed,” “with design” or equivalent terms have the same meaning.

N.J.S.A. 2C:2-2b(2) [Knowingly].  A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence.  A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. “Knowing,” “with knowledge” or equivalent terms have the same meaning.

N.J.S.A. 2C:2-2b(3) [Recklessly]. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.  The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.  “Recklessness,” “with recklessness” or equivalent terms have the same meaning.

N.J.S.A. 2C:2-2b(4) [Negligently].  A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.  The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.  “Negligently” or “negligence” when used in this code, shall refer to the standard set forth in this section and not to the standards applied in civil cases.

If the grand jury found that the defendant acted “knowingly,” “recklessly,” or “negligently” as opposed to “purposely” as to Counts 1 and 5, then the grand jury would have had no choice but to no bill.  Similarly, if the grand jurors found that the defendant acted “recklessly” or “negligently” as opposed to “knowingly” as to Counts 2 and 3, then the defendant would have been no billed.  If the grand jurors found that defendant acted “negligently” as opposed to “recklessly” as to the “risk or widespread injury or damage” in Count 4; or “recklessly” or “negligently” as opposed to the “purposely or knowingly barricading himself” elements, then he would have been no billed.

The bottom line is that the failure of the State to define the crucial requirements of culpability deprived defendant of any meaningful consideration of each and every element of the charges by the grand jury.  This is particularly egregious when the state of mind of the defendant is a key issue as to each charge.

The grand jury “‘stand[s] between the defendant and the power of the State, protecting the defendant from unfounded prosecutions.’”   Article I, Paragraph 8, “is a constitutional protection that enhances the integrity of the charging process.” Id. at 139.  “[T]he grand jury’s core purpose is to ‘determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it,’ and it stands as ‘the primary security to the innocent against hasty, malicious and oppressive persecution.’” State v. Francis, 191 N.J. 571 (2007).

Our courts have not been reluctant to scrutinize grand jury proceedings where the decision-making process was fundamentally unfair:

We have demonstrated a greater willingness to review grand jury proceedings where the alleged deficiency in the proceedings affects the grand jurors’ ability to make an informed decision whether to indict. State v. Murphy, 110 N.J. 20 (1988).

It is abundantly clear that the right to indictment before the grand jury implies the right to due process of law and fundamental fairness before the grand jury. See State v. Engle, 249 N.J. Super. 336, 359 (App. Div. 1991); see also State v. Riley, 242 N.J. Super. 113 (App. Div. 1990); State v. Gaughran, 260 N.J. Super. 283 (Law Div. 1992); State v. Porro, 152 N.J. Super. 259 (App. Div. 1977).

Here, in Stephanatos, the egregious omission of the culpability and key elements of the case (the defendant’s state of mind and belief at the time of the purported offense) mandates dismissal of the indictment with prejudice. 

POINT IV

The indictment must be dismissed with prejudice as violative of defendant’s right to due  process of law under the fifth and fourteenth amendments to the United States Constitution and under the New Jersey Constitution as the grand jury was never advised that the defendant was entitled to show that he was motivated by an honestly held (but unreasonable) belief.

Defendant incorporates by reference the arguments and authorities in Point III, supra, and submits that the grand jury instructions are fatally flawed since the grand jury was never advised that a defense to Counts 1 through 3 of the Indictment is that the defendant was motivated by an honestly held but unreasonable belief.

After the fraudulent self-certification of the co-conspirator Robert Del Vecchio, as discussed supra, an Eviction Notice (dated May 20, 2011) was sent to the defendant from Richard H. Berdnik, the Passaic County Sheriff.  This Eviction Notice states:

We have been commanded, by virtue of a Court Order issuing out of the Superior Court of New Jersey, to VACATE the premises now occupied by yourself and your family members.

We hereby inform you that you must VACATE said premises before 9:00 a.m. on June 28, 2011.

Should you fail to do so, you, your personal belongings and your household furnishings will be removed IMMEDIATELY on that date. 

This is the only notice you will receive from this office.

If you vacate voluntarily before the scheduled eviction date, kindly notify the following immediately:

Robert A. Del Vecchio, Esq.

P.O. Box 561

Hawthorne, NJ 07507. (Da47).

This Court should note that the “Court Order” cited by the sheriff is the one signed by the Clerk of Mercer County based on the fraudulent self-certification of Robert Del Vecchio.  There was no judge signing that possession paperwork, just a Clerk of another county.  To this date, no explanation has been provided by the State as to why a possession issue was signed by a Mercer County Clerk for a property located in Passaic County and why the possession issue was not adjudicated by a Law Division Judge in Passaic County as is required by state law.  This Court should also note that for entering and removing a person from a residential property, N.J.S.A. 2A:18-57 requires that a judgment of possession must be issued by a Law Division Judge, followed by a Warrant for Removal.  State law also mandates that a notice be provided to the person in possession that he has the right to apply to the court for a stay of execution of the warrant, along with other notifications.  The co-conspirator Del Vecchio was able to avoid all that by signing a fraudulent self-certification.

On May 27, 2011, a letter was faxed to the Passaic County Sheriff (from Carla J. Van Vorst; Co-Owner, Metropolitan Environmental Services), stating the following:

Dear Sheriff:

Metropolitan Environmental Services (Metropolitan) is in receipt of an eviction notice.  The notice states that there are no tenants on the property.  There must be some mistake, as we have been a tenant on this property since circa 1993.  It is obvious that a wrongful certification has been provided to the sheriff’s office and we are asking that punish (sic) the wrongdoer.  Furthermore, Mr. Basil Stephanatos informed us that there are two pending appeals on the matter.  The docketed appeals are: A-00003900-10 and A-003898-10T4.  You cannot possibly proceed with any eviction notice, unless and until the appeals are processed by the Appellate Division.  Mr. Stephanatos indicated that he will file a complaint against ATF with the U.S. District Court in Newark very-very soon.

He also indicated that Senator O’Toole and the Governor and Attorney General’s office are investigating these obviously criminal activities by American Tax Funding.

Sincerely,

Carla J. Van Vorst

Co-Owner

METROPOLITAN ENVIRONMENTAL SERVICES

687 Indian Road

Wayne, New Jersey 07470-4923 (Da50).

Despite this correspondence, the sheriff has been insisting that he never received that correspondence indicating that appeals are pending.

The Passaic County (Evictions Dept.) sent a letter to Carla J. Van Vorst (dated May 31, 2011) stating:

Our office is in receipt of your fax (copy following).  Please be aware that Sheriff takes direction from either Plaintiff Attorney or the Court (judge).

This eviction is to proceed as scheduled on June 28, 2011 9 am unless we are directed by either Plaintiff Attorney or Court otherwise. Also, you state in your fax that the eviction notice says “there are no tenants on the property”; this is not true.  The notice states “NOTE: THIS EVICTION NOTICE DOES NOT APPLY TO TENANTS”.  If you are, in fact, a TENANT, the eviction notice does not pertain to you.  Sheriff does not evict tenants.  That is a matter you would need to take up with the Plaintiff Attorney. (Da52).

Based on that letter, defendant felt assured that the eviction would not move forward and he would be allowed to stay at the property while appeals were pending. 

In addition to filing two appeals, in June 2011, defendant had also filed a suit to vacate the tax deed (Passaic County, Law Division L-2973-11).  Defendant even sent a letter to judges, to the co-conspirators Robert Del Vecchio, Matthew Marini and to the sheriff’s office that appeals were pending and they in fact responded to the letter, acknowledging the appeals. 

Defendant Stephanatos submits that the Passaic County Sheriff’s Department had no right to remove him from his house since there was a tenant (Metropolitan Environmental Services) in the house and appeals were pending.  Defendant submits that, contrary to the Certification of Robert A. Del Vecchio (Da48-49) there was, in fact, a tenant in the premises as confirmed by the letter to the Sheriff dated May 27, 2011, advising that there were tenants on the property and that defendant had no possessory rights.  As this Court hopefully understands, no possessory rights were ever determined in this case.

The Tax Sale Law only addresses title to a property and not possession.  The possession is a law division matter, and not an equitable matter.  Judge McVeigh had no power or authority to interfere with the possession of defendant’s residence.  Yet she did.  The Forceful Entry and Detainer statutes clearly state that the matter of possession of residential property must go before a Law Division Judge.  Thus, since the eviction order was not signed by a Law Division judge sitting in Passaic County, it was void ab initio and had no power or effect.  What the sheriff (and the conspirators) did was illegal.

As explained infra, the defendant was entitled to have the grand jury advised that an honestly held (though unreasonable) belief is a defense to all of the charges.

In State v. Williams, 168 N.J. 323 (2001), the New Jersey Supreme Court reversed the defendant’s conviction for second-degree possession of a weapon for an unlawful purpose since the defendant was entitled to show that he was motivated by an honestly held but unreasonable belief that force was required to protect his wife, and the trial court committed plain error by failing to give an unrequested instruction that even if the jury found that defendant’s explanation to be unreasonable, it nevertheless had to consider whether he honestly believed that force was necessary.  The Court in Williams reached the conclusion that the jury instructions in that case did not adequately define what specific unlawful purpose, if any, defendant harbored when he shot at the victim. 

As explained in State v. Harmon, 104 N.J. 189 at 205 (1985): “Thus one may at once be guilty of an aggravated assault through pointing a weapon at another yet be innocent of possession of the weapon for an unlawful purpose.” (Citing State v. Mieles, 199 N.J. Super. 29 (App. Div.) certif. denied, 101 N.J. 265 (1985).  As explained in Williams, supra, “Just as lawful use of a weapon will not necessarily legitimate prior possession for an illegal purpose, illegal use of a weapon alone does not establish the necessary mental element under that statute. At 340.  “The issue of unlawful possession turns on ‘the purpose for which defendant possessed the gun and not how he used it.’” State v. Blanks, 313 N.J. Super. 55, 73 (App. Div. 1998) (quoting Mieles, supra, 199 N.J. at 41).  As further explained in Williams, “Where, as here, the original possession was indisputably lawful, the court has a special obligation to relate the alleged unlawful purpose to the evidence. Id. at 341, citing State v. Villar, 150 N.J. 503 (1997).

Defendant submits that the prosecutor before the grand jury had the same duty to present the exculpatory defense that if defendant was motivated by an honest (though unreasonable) belief (and any exculpatory evidence as to such), then he was entitled to a no bill under the law.

Under New Jersey law, persons in lawful possession of a residential property have a recognized property interest. Also, the right to own and possess property is guaranteed by Article I, par. 1 of the State Constitution. Furthermore, defendant had full equity in his home and had filed a timely lawsuit in the Law Division to Vacate the Tax Deed, Case # L-2973-11, after Judge McVeigh told him to file a new suit in the Law Division since Judge Riva did not hear the prior suit in 2010.  At the same time, defendant also filed for a stay of the proceedings.  These are the reasons for the conspirators acting in haste and with criminal intent in removing defendant from his residence and place of business without following the Forceful Entry and Detainer statutes.  It is submitted that the Law Division would have found in defendant’s favor as a matter of law and the conspirators acted quickly by circumventing the New Jersey Forceful Entry law.

Defendant also filed two appeals: one from the L-2672-09 case and one from the F-9241-09 case.  The appeals were docketed as follows:  A-4685-10 and A-3900-10 (appeal from L-2672-09) Team 4.  At the same time, defendant applied for a stay from the foreclosure judgment, to ensure that a higher court and/or a federal court would hear his appeals.

Defendant had a home-based business in the premises (Metropolitan Environmental Services).  Also, it was believed that the New Jersey Appellate Division would have vacated the judgment issued by a Chancery Judge on the basis that the Chancery Judge failed to weigh the significant equity of the homeowner and failed to perform fact finding and applying the applicable law. 

In the case sub judice, the State knew defendant’s intentions and the reasons for his actions, which were documented extensively and should have been presented for the grand jury’s consideration.  The indictment must be dismissed with prejudice due to the state’s conduct recounted above.

POINT V

The indictment must be dismissed with prejudice as the state never instructed the grand jurors as to the applicable defenses of ignorance, or mistake, duress or entrapment.

Defendant incorporates by reference the arguments and authorities, supra, and submits that the entire indictment must be dismissed with prejudice as the grand jurors were never advised as to the applicable defenses of ignorance, mistake, duress or entrapment.  It is the defendant’s position that the Passaic County Sheriff never had any valid eviction order for the residential property of the defendant as such an order must be signed by a Law Division Judge. 

In addition, the defendant (who has a J.D. degree), believed that under Payton v. New York, 445 U.S. 573 (1980), a suspect should not be arrested in his house without an arrest warrant (in spite of probable cause to arrest him).  This was the reason that defendant did not get out of his home.  He was never shown a valid arrest warrant.  Furthermore, at no time did anyone inform the defendant that he was under arrest.  Defendant was on the phone for a long time with officer Celix, but Celix never once stated that defendant had committed any crime.  Thus the charges of hindering apprehension are absolutely fraudulent.

Given the clear legal distinctions between an arrest warrant and a search warrant, the fact that the Sheriff’s Officers later obtained a search warrant does not provide any justification for the defendant’s arrest.

N.J.S.A. 2C:2-4 [Ignorance or mistake] provides:

a. Ignorance or mistake as to a matter of fact or law is a defense if the defendant reasonably arrived at the conclusion underlying the mistake and:

(1) It negatives the culpable mental state required to establish the offense; or

(2) The law provides that the state of mind established by such ignorance or mistake constitutes a defense.

b. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed.  In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.

c. A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

(1) The statute defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged, or

(2) The actor acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (1) a statute, (b) judicial decision, opinion, judgment, or rule, (c) an administrative order or grant of permission, or (d) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense; or

(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude.

The defendant must prove a defense arising under subsection c. of this section by clear and convincing evidence.

As explained by the New Jersey Supreme Court in State v. Sexton, 160 N.J. 93 (1999), if recklessness is required as an element of the offense, a mistake that is merely negligent or faultless may be asserted as a defense.  The Sexton Court explained that the New Jersey Code of Criminal Justice provides that no person shall be guilty of an offense unless the person “acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.” N.J.S. 2C:2-2a.   An example of how a mistake of fact may negate culpability is explained in Sexton:

[I]f a person is ignorant or mistaken as to a matter of fact . . . the person’s ignorance or mistake will, in appropriate circumstances, prevent the person from having the requisite culpability with respect to the fact . . . as it actually exists.  For example, a person who is mistaken (either reasonably, negligently, or recklessly) as to which one of a number of similar umbrellas on a rack is the person’s and who takes another’s umbrella should be afforded a defense to a charge of theft predicated on either intentionally or knowingly taking the property of another . . . A reckless mistake would afford a defense to a charge requiring intent or knowledge-but not to an offense which required only recklessness or negligence.  Similarly, a negligent mistake would afford a defense to a charge predicated on intent, knowledge, or recklessness-but not to an offense based on negligence. State v. Cavness, 80 Hawai’i 460, 911 P.2d 95, 99-100 (Ct. App. 1996).  Sexton, supra, 160 N.J. at 101.

In Sexton, supra, the defendant was convicted of reckless manslaughter as a lesser-included offense of murder, and unlawful possession of a handgun without a permit.  The defendant’s claim at trial was that he believed the gun was not loaded when he pointed it at the victim.  The defense claimed the gun went off accidentally and killed the victim.  The Appellate Division reversed on several grounds, including that the trial court should have charged the jury that the State bore the burden of disproving beyond a reasonable doubt defendant’s mistake-of-fact defense, and that the failure to do so was plain error. Supra, 160 N.J. at 97.  The Supreme Court in Sexton affirmed the Appellate Division’s reversal, and held that the defendant’s alleged mistaken belief that the gun he fired at the victim was not loaded related to whether the state had failed to prove an essential element beyond a reasonable doubt. Id. at 107.

The grand jury must be presented with sufficient evidence and legal instructions to determine whether an indictment is warranted, State v. Morrison, 188 N.J. 2, 12, 20 (2006).  It is not a “rubber stamp” or “play-toy” for the prosecutor.  State v. Gaughran, 260 N.J. Super. 283, 290 (Law Div. 1992) (quoting State v. Engel, 249 N.J. Super. 336, 359 (App. Div. 1991)).  It is therefore “essential that the jurors be informed of the relevant facts,” ibid., and be given adequate legal instructions concerning the charging options available, and the elements of those charges, Morrison, supra, 188 N.J. at 12, 20.  

Although an indictment is presumed to be valid, “a defendant with substantial grounds for having an indictment dismissed should not be compelled to go to trial to prove the insufficiency.” State v. Graziani, 60 N.J. Super. 1, 22 (App. Div. 1959), aff’d, 31 N.J. 538 (1960). An indictment should be dismissed as facially deficient “if it fails to charge an offense,” by failing to charge “‘all of the critical facts and each of the essential elements which constitute the offense alleged.’”  State v. Bennett, 194 N.J. Super. 231, 234 (App. Div. 1984). 

N.J.S.A. 2C:2-9 provides that it is an affirmative defense to a crime where the actor engaged in the conduct because he was coerced to do so by the use of, or threat to use, unlawful force against his person or that of another. The standard is objective, i.e., whether a person of reasonable firmness in the accused’s situation would have been unable to resist. State v. Toscano, 74 N.J. 421, 443 (1977). While the accused’s “situation” excludes the idiosyncrasies of the individual’s temperament, it permits the jury to consider his “attributes,” such as the accused’s age, health, etc.  Elements to consider in assessing the viability of the defense include the nature of the threat, its immediacy and gravity; the seriousness of the crime committed; the identity of the person endangered; the possibility of escape or resistance; and the opportunity to avoid the act by seeking official assistance.  Here, there is no question that defendant tried to talk to the authorities to ask them to intervene to prevent the officers from entering the home. Defendant called the Wayne Police, as phone records show.  No person who allegedly tried to assault a sheriff’s employee would ask help from the government entities and even the police.

There were two forms of entrapment under common law. Subjective entrapment existed when police planted a criminal plan in the mind of an innocent person who otherwise would not have committed the crime, in order to institute a criminal prosecution against the person. Subjective entrapment takes into consideration the predisposition of the defendant to commit the crime. Subjective entrapment protects the unwary innocent but not the unwary criminal. State v. Johnson, 127 N.J. 458, 464 (1992); State v. Rockholt, 96 N.J. 570, 576 (1984).  Here, it is unquestionable that but for the illegal acts of the sheriff’s employees (lack of Warrant for Removal), no incident would have ever happened.  The grand jury should have been told about the defense of entrapment.

Objective entrapment exists when police conduct caused an average law-abiding citizen to commit a crime or when police conduct was so egregious as to impugn the integrity of the court that permitted the conviction.  Although the predisposition of the defendant to commit the crime was not totally irrelevant, the focus of objective entrapment was the wrongfulness of police conduct. State v. Johnson, 127 N.J. 458, 464 (1992); State v. Molnar, 81 N.J. 475, 484 (1986); State v. Talbot, 71 N.J. 160, 168 (1976).

The Code encompasses the subjective and objective elements of common-law entrapment. The Code requires an analysis of the interrelation between defendant’s predisposition and the police conduct and a determination of which caused the commission of the crime. To constitute entrapment, police conduct must involve 1) “methods of persuasion or inducement” that 2) create “a substantial risk” of the commission of a crime 3) by a person not otherwise “ready to commit” the crime. N.J.S.A. 2C:2-12a(2).  In this case, it is unquestionable that but for the illegal acts of the sheriff’s employees, no incident would have ever happened.  The grand jury would have most likely found that the defendant was entrapped by the sheriff’s employees and therefore should have been instructed to consider the said defense.

Due process entrapment exists when “the conduct of government is patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness.” Due process entrapment “centers around two major concerns: the justification for the police in targeting and investigating the defendant as a criminal suspect; and the nature and extent of the government’s actual involvement in bringing about the crime.”

Defendant must prove both the objective and subjective aspects of statutory entrapment by a preponderance of the evidence. N.J.S.A. 2C:2-12b; State v. Rockholt, 96 N.J. 570, 577, 581 (1984). The existence of statutory entrapment is determined by the trier of fact. Regarding due process entrapment, the defendant has the burden of coming forth with evidence to support the defense, which the State must then disprove by clear and convincing evidence. The existence of due process entrapment is a question of law to be resolved by the court. State v. Florez, 134 N.J. 570, 584, 590-91 (1994).

A defendant’s denial of the commission of a crime does not preclude assertion of an entrapment defense. Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 90153 L. Ed. 2d 54 (1988); State v. Branam, 161 N.J. Super. 53 (App. Div. 1978), aff’d o.b., 79 N.J. 301 (1979).

This should also been submitted to the grand jury for its consideration, but wasn’t.

Point VI

The indictment must be dismissed with prejudice as the state never instructed the grand jury as to the New Jersey law of self-defense.

Defendant incorporates by reference the arguments and authorities, supra, and submits that, even if the grand jury testimony of Officers Lucas and D’Agostino (that defendant had a gun pointed at them) is believed (which is unbelievable, based on the analysis presented under POINT I, supra), the defendant was allowed to possess the legally-owned weapon(s) and to use it to defend himself and his property from intruders and individuals who peer through his window as a means of constructive authority and/or against individuals who perform an unlawful entry and detainer or removal.  As this defense was not provided to the Grand Jury, the indictment must be dismissed with prejudice.

One exception to the duty to retreat (N.J.S.A. 2C:3-4b(2)(b)), if the actor is in his or her own home at the time of the attack (the so-called “castle doctrine”). See State v. Gartland, 149 N.J. 456, 467 (1997).  N.J.S.A. 2C:3-4b(2)(b)(i) provides that: “The actor is not obligated to retreat from his dwelling, unless he was the initial aggressor.”   

There is no question here that the defendant was attacked inside his own home (the porch is considered a part of the dwelling) as Lucas was illegally peering inside his dwelling from the front side window and Lucas and several other sheriff employees came to illegally evict him on June 28, 2011 without first obtaining a Warrant for Removal. N.J.S. 2A:39-1 reads as follows:

Unlawful entry prohibited. No person shall enter upon or into any real property or estate therein and detain and hold the same, except where entry is given by law, and then only in a peaceable manner. With regard to any real property occupied solely as a residence by the party in possession, such entry shall not be made in any manner without the consent of the party in possession unless the entry and detention is made pursuant to legal process as set out in N.J.S.2A:18-53 et seq., as amended and supplemented.

Defendant knew that only through a removal action before a Law Division judge could the sheriff remove him.  The State admitted to Judge Filko that no Warrant for removal had been obtained by the Sheriff in violation of New Jersey law.  See N.J.S. 2A:18-53 et seq. That was the reason defendant kept his doors closed and locked with deadbolts at all times.  The defendant also knew that the sheriff’s employees are in fact hired by the conspirators and they act as agents of the conspirators and not necessarily as an agent of the state.  Lucas admitted in his testimony that he was hired by conspirator Robert Del Vecchio.  Sheriff’s records, obtained through discovery, also show that the sheriff was paid several thousand dollars for the services they performed for the conspirators ATF, Robert Del Vecchio, and others.

N.J.S.A. 2C:3-4(c) provides special rules for the use of force, constructive authority or deadly force on an intruder into one’s dwelling:

Notwithstanding the provisions of N.J.S. 2C:3-5, N.J.S. 2C:3-9, or this section, the use of force or deadly force upon or toward an intruder who is unlawfully in a dwelling is justifiable when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the use of unlawful force by the intruder on the present occasion.  As explained in Gartland, supra, “under this provision, deadly force may be used against an intruder to counter any level of unlawful force threatened by the intruder.”

 In State v. Bilek, 308 N.J. Super. 1 (App. Div. 1998), the Court stated that the jury should have been expressly told that pointing a loaded firearm is “force” to which defense of one’s dwelling may apply.  As explained by the Appellate Division in Bilek, “the general charge seems to require a reasonable belief that the defendant is faced with actual or threatened death or serious bodily injury.  A lesser degree of threat justifies force in defending one’s dwelling under N.J.S.A. 2C:3-4(c), that is to say, only the threat of “personal injury” is necessary. N.J.S.A. 2C:3-4(c)(2)(a). Id. at 11. 

As further explained by the Bilek Court:

Additionally, and perhaps most critically, the general instruction emphasizes the proportionality of the force used to self-defend against the aggressor’s unlawful force.  Defense of one’s home pursuant to N.J.S.A. 2C:3-4(c) is quite distinct, and does not require such proportionality.

Significantly to Stephanatos, the Bilek Court also found that the doorway or entranceway of one’s dwelling is part of the “dwelling” for purposes of the statute addressing the right to defend one’s own dwelling. Id. at 11. See State v. Bonano, 59 N.J. 515, 520 (1971); State v. Martinez, 229 N.J. Super. 593 (App. Div. 1989).  In other words, the porch where these two heavily armed individuals claim they were assaulted is considered a part of the dwelling.

A number of facts prove that the sheriff’s employees came onto defendant’s property to illegally remove him from his dwelling and place of business:

1.    The sheriff leaves an eviction notice at the dwelling of the defendant.  The defendant or his representative/co-tenant then sends a fax giving notice to the sheriff for receipt of the eviction note and notifying the sheriff of criminal acts by Robert Del Vecchio and pending appeals.  Sheriff acknowledges the fax and sends a fax to the defendant stating that the sheriff will remove the defendant on June 28, 2011.

2.    The sheriff fails or refuses to obtain a Warrant of Removal as is mandated by New Jersey’s Unlawful Entry Laws.  This fact was confirmed in November 2011 by the State in a hearing before Judge Filko.  In fact, the very first thing that Judge Filko asked the State was: 

Q: (Judge Filko): “did the sheriff have a Warrant for Removal?”. 

A: (Peter Roby): “No, Your Honor.”

The same scenario repeated itself before Judge McGeady in Bergen County.

3.    Lucas testified before the grand jury that he knew that the defendant had said “I am not going anywhere”.  So, in his own words, this individual knew that he could not enter the defendant’s home unless and until he obtains a law-mandated Warrant for Removal, as he was not going anywhere.  Only armed with a Warrant for Removal could the sheriff enter defendant’s home and forcibly remove him.  If he had a Warrant, then the defendant could not have objected to his entry.  But, Lucas never obtained such a Warrant and listened to Robert Del Vecchio (acting as his agent) to go to the defendant’s home and forcibly remove him; which he did.

4.    Lucas tried to convince the grand jury that he was only serving papers and that he was not trying to forcibly and illegally remove the defendant from the dwelling.  Of course, this is another Lucas fabrication, because there were several sheriff’s officers dispatched that day to the property, making it very clear that these individuals went there to forcibly remove the defendant in violation of the unlawful entry laws.  The defendant had already received the eviction papers, there was no need to serve the very same papers.  This Court should also note that the Passaic County’s Sheriff Webpages indicate that “The Sheriff’s duties are to act as the agent for the Plaintiff”.  Thus, according to long-established law, the sheriff’s officers were acting as the agent for the conspirators ATF or Robert Del Vecchio and not as law enforcement officers (i.e., they were not acting as agents of the state for the detection, investigation or apprehension of crime.  See 2C:25-19 - Definitions 

"Law enforcement officer" means a person whose public duties include the power to act as an officer for the detection, apprehension, arrest and conviction of offenders against the laws of this State.

Here, the duties of Lucas and D’Agostino were not to work as police officers but as process servers.  Furthermore, the Passaic County Sheriff (being a law enforcement agency that employs both law enforcement and non-law enforcement staff) has a number of divisions, including process server division, law enforcement division, K-9 division and administrative division.  Lucas and D’Agostino did not belong to the law enforcement division, but they worked for the process server division.  In fact, the sheriff admitted so in a fax sent to the defendant where the sheriff stated that he “only takes instructions from the plaintiff’s lawyer”, proving that they were not working necessarily for the state but for the conspirators Robert Del Vecchio and ATF.

The grand jury should have been instructed that the pointing of a weapon can be used by a homeowner in self-defense when people are trying to enter or are at his dwelling without a lawful purpose or without having a Warrant for Removal.  The grand jury should also have been instructed that the homeowner does not necessarily intend to use the weapon against a subject intruder or another threat, but it might be intended to exercise control over the situation, and prevent the breaking into a home or send intruders away from his property.  Here, such constructive authority would have been applicable, especially since the officers were both armed and trained to shoot to kill and were trying to illegally evict the defendant without possessing a law-mandated Warrant for Removal signed by a Law Division Judge.

In Stephanatos, the defendant has irrefutable evidence (emails and phone records), showing that he was conducting his home-based business during June 28, 2011, as he had been doing for many years.  He was also communicating with the Legislature, the Governor’s office, the U.S. Attorney’s office, the FBI and the courts, as he has been doing for several years.  The totality of the circumstances analysis shows that he never had any intent to cause injury to anyone, other than protecting his home from unlawful intruders.  See State v. Morrison, 188 N.J. 19 (2006) regarding fact-sensitive analysis based on the totality of the circumstances.

Furthermore, it is absolutely lawful to carry a gun inside your home or business or premises that you occupy.  See 2C:39-6-Exemptions.  e. Nothing in subsections b., c. and d. of N.J.S.2C:39-5 shall be construed to prevent a person keeping or carrying about his place of business, residence, premises or other land owned or possessed by him, any firearm..”.  

In summary, the state failed to instruct the grand jury of defendant’s right to carry a gun inside his home or business or premises that he occupies and his right to defend his home from intruders or attackers.  The state should have instructed the grand jurors that defendant had the right to defend himself and/or his dwelling and/or business from threats and unlawful intrusions.  Once again, on this ground alone, the indictment should be dismissed.

POINT VII

The indictment must be dismissed with prejudice due to the use of false evidence to mislead the grand jurors to obtain the indictment; the defendant’s Motion to Suppress should be granted because of an illegal search and seizure.

Defendant incorporates by reference that arguments and authorities in Points I through VI, supra, and submits that Sheriff’s Officers Lucas and D’Agostino both lied before the grand jury.  It is the defendant’s position that between their investigation reports and the grand jury testimony, officers Lucas and D’Agostino have presented at least seven different scenarios of what happened on June 28, 2018.  That is, seven different scenarios they present in their own words (either written or spoken), without even being cross-examined by the defense. 

The contradictions, omissions and different scenarios presented and memorialized by the officers were not presented to the grand jury.  It is submitted that the State had a duty to inform the grand jury of the deception and lack of credibility of the officers.  The grand jury was mislead and this is impermissible.  The officers are contradicted on almost all material details.  There are contradictions within each officer’s version of events and when one compares one officer’s version with the other officer’s recitation of facts.  The legal maxim of false in one, false in all is self-evident in this case.  Importantly, physical facts and evidence in this case negates the officers’ version of the incident.  The defendant’s testimony is crucial in undermining the officers and the State’s case.  The defendant is corroborated by the physical evidence.  The defendant also would testify about the genesis and background leading up to the incident and the conduct and motivation of the conspirators and principals and their illegal actions under the law, as well as the manipulation of the Sheriff’s Department by private parties for their financial benefit to the detriment of the defendant – with the intent to unlawfully take the defendant’s hard-earned property.

Importantly, defendant’s prior counsel, Carl J Herman, Esq. of West Orange, N.J. wrote a letter dated August 25, 2011 addressed to Assistant Prosecutor Andrew Palestini.  Mr Herman wrote, “As I mentioned, Mr Stephanatos may wish to testify at any grand jury proceedings in this case.  Kindly notify this office when this matter is scheduled or grand jury so that I can discuss the above with my client.”  Defendant wanted to testify before the grand jury, but neither he or his attorney was notified of the date of presentation.  This in itself should mandate a dismissal of the indictment so that in the event of a re-presentation the defendant will be able to testify as to a corroborated state of events.  It violates due process and fundamental fairness to permit an unjust and misleading grand jury presentation to stand with all of its adverse consequences.  Defendant requests an evidentiary hearing so that he can testify as to the true factual narrative and elicit corroborating evidence to demonstrate that the grand jury presentation consisted of false and misleading testimony.  The fact that he wanted to appear at the grand jury and was deprived of an opportunity to testify, mandates a hearing at this stage to correct an injustice.  At such a hearing, defendant would testify and produce photographs of where Officer Lucas was and that he trespassed and was illegally peering into defendant’s dwelling place in violation of the Fourth Amendment to the United States Constitution and N.J. Const, Art. 1, Par 7.  This was done without a Warrant for Removal.  Lucas later claimed that he was just coming up the steps and he was assaulted at about 8:50 am, despite the fact that electronic records obtained from defendant’s business computer showed that he was sending emails to his business clients as of 8:55 am and earlier.  Lucas also claimed that a Pelican scientific case used by vendors of defendant’s business was a metal ammunition box, a fraudulent assertion that was refuted before Judge Filko by Prosecutor Roby.   The above-stated facts are also part and parcel of the defendant’s motion to suppress evidence because of an unconstitutional search and seizure before a search warrant was obtained.  An evidentiary hearing must be held on the motion to suppress.

The officers lied when they stated that the defendant had his front door open and his storm door shut and that they were able to see the defendant pointing a gun at them through the glass storm door. (Lucas testified to this at GJT10-24 to 11-12; D’Agostino testified to this at GJT16-1 to 17).

It is the defendant’s contention that he had the front door (and all other doors) closed and locked with a deadbolt.  He had placed a business sign in the front door so that the Sheriff’s Officers would see that there was a tenant on the premises and that they could not proceed with the illegal removal without a Warrant for Removal obtained from a Law Division Judge in compliance with the Unlawful Entry and Detainer Laws of this state.  Had defendant left the door open, they would not have been able to see the business sign.

It makes no sense that defendant would keep the front door open for the officers to come in, when in fact he did not want anybody to come inside his home while the appeals were pending in the appellate courts and there was a lawsuit in the Law Division to vacate the tax deed.  Defendant knew that if he left a door open, he was actually inviting the officers to enter his home.  Furthermore, the officers’ reports all show that defendant’s back door was locked with a deadbolt; his garage was locked with a deadbolt; and his car was also locked.  This was done to prevent anybody from coming inside defendant’s home, especially that day.  Testimony as to this will be elicited at the motion to suppress. 

During the grand jury proceedings, officer Lucas also lied to the grand jury when he said that he was only trying to serve process papers.  This is an obvious fabrication, as he also testified that several officers were dispatched during that day in two sheriff’s vehicles with the specific intent to forcefully remove defendant without obtaining a Warrant for Removal from a Law Division Judge.  The process papers he referred to had already been delivered to defendant.  How come several officers were attempting to re-deliver the same papers? 

Testimony would also be adduced that it was impossible to see inside the house from the front door in the early morning hours.  Because of this, Lucas went behind a philodendron subincisum planter and placed his face at the side window so that he could see inside the home.  This is also part of the illegal search, as well as evidencing false grand jury testimony.  After the above, Lucas alleged that he went behind the yew and rhododendron bushes where he claimed that he fell and injured his shoulder.  Lucas later claimed that he was just coming up the steps and he was assaulted.  Lucas also claimed that a Pelican scientific case used by vendors of defendant’s business was a bomb; when no bomb was found he then claimed that he thought it was a “metal ammunition box”, which was not true.  Lucas also claimed that he saw a “shotgun”.  This is what was reported to the other officers and to the media.  No “shotgun” was ever found.  Lucas then changed his story after he saw the defendant’s lawful guns.  He claimed that he saw a rifle instead.

Defendant has irrefutable evidence (email and phone logs) showing that he was either on the computer doing business work or calling state officials right at the time that these sheriff’s deputies claim that they saw defendant through an open front door.  For example, Lucas testified that he arrived at the property at 8:50 am.  There is an electronic record that shows that defendant sent an e-mail to one of his clients at 8:55 am.  This conclusively proves that defendant was at his office computer at the back of the house (about 50-feet away from the front door) doing his normal daily business.  This puts the “big lie” to the claim that at around 8:50 to 8:55 the officers saw defendant pointing a gun at them as they were walking up the front porch steps.

Another reason that the front doors were both closed is the following:  defendant has window-mounted air conditioning units.  He would take the air conditioning units off the window around mid-September and he would install them around Memorial Day.  When he installed the air conditioning units, he kept all the doors and the windows closed, so that he did not lose energy.  Another reason he always kept the doors closed is that his home office was located at the back of the dwelling and he could not hear very well what was happening at the front of the home.  Since the home is located in a rather isolated, wooded area of Wayne, it has been burglarized before.  The lack of hearing and the fear of burglary had made defendant keep all the doors locked at all times.  Defendant very rarely used the front doors, as the garage entrance is located closer to the back door entrance.  The computer electronic record was in the possession of the State before the grand jury proceedings.

The Pelican case was utilized by the State at the grand jury to give the false impression that defendant had pre-planned an assault and he had stockpiled ammunition in a metal box.  This was a highly prejudicial fabrication.  Who would place a metal ammunition box at his front steps, leave the front door open for the officers to come inside the home to illegally remove him, and then go back 50 feet away from the door to the back office and start writing emails and doing business with his clients?  And remember: defendant is a highly educated individual.

The State has admitted that the alleged “metal ammunition box” was a rental instrument contained inside a plastic protective case (called Pelican case) to be picked up by a vendor of defendant’s business, Pine Environmental, Inc., the morning of June 28, 2011.  The prosecutor during the grand jury proceedings said to the grand jury that the Sheriff’s Officers thought that the business instrument was “a metal ammunition box”, giving the impression to the grand jury that defendant was prepared for a battle and had a metal ammunition box at his front porch.  It wasn’t even metal – it was plastic.  It was totally inconceivable to portray defendant as a dangerous person to the grand jury on the basis of unfounded facts. 

The Prosecutor later confirmed that he talked to Pine Environmental, Inc and learned that their employee was due to come and pick up the instrument that morning from defendant’s front porch (this is where defendant would typically place various rental instruments for pickup and delivery).  Again, none of these facts made it to the grand jury.  The State fed the grand jury with lies, fabrications and half “truths”.

Officers Lucas and D’Agostino also claimed that they did not ring the door bell and that instead, they saw a man waiting for them with a gun.  This was not true, as Lucas rang the doorbell at about 8:52 am (or between 8:50 am and 8:55 am).  The sheriff’s investigation reports show that other sheriff’s employees wrote that “somebody answered the door”.  These statements corroborate defendant’s recollection that Lucas rang the doorbell.  When defendant did not answer the door, he bypassed two big planters and went towards the edge of the porch and started peering inside the home, as the sun glare makes it impossible to see inside the home during the morning hours (it is a north/northeast facing home).  This was the performance of an illegal search in violation of the Fourth Amendment to the U.S. Constitution and N.J. Const. (1947), Art. I, Par. 7.

After peering inside the dwelling, Lucas then jumped off the edge of the porch, proving that he was located at the side window peering inside. He admits in his report that he “jumped off the porch”.  He could not simply follow the steps of the porch the same way D’Agostino did, because the planters blocked his exit from his location at the edge of the porch.  The only way he could go was behind the bushes.  This is crucial evidence, adding credibility to defendant’s contentions and proving yet again that Lucas lied to the grand jury.

It also was not possible that the officers did not say anything to defendant, without announcing that they were sheriff officers or law enforcement officers and without defendant saying anything to them (as they have testified).  It makes no sense that they simply walked away;  the only way this could have happened is if the doors were both locked (i.e., both the storm and the main wooden door) and they could not have any contact or communication with defendant at that time. 

Officers Lucas and D’Agostino are partners.  They drove in the same car.  They testified that they both walked toward the front steps at the same time.  It doesn’t make sense that Lucas would go behind defendant’s front bushes (the yews and the rhododendrons), while D’Agostino would go toward his car.  This scenario is only likely if Lucas was located in front of the side door window and at the very edge of it (which is where defendant saw him standing, with his face on the glass window and illegally peering inside the home).  There was no reason for him to do this, if he was just delivering papers, as he testified.  He could have left the papers in the mailbox or left them at the door step.  Furthermore, the yews/rhododendrons consisted of very hard wood.  It was difficult to go behind them without being scratched.  Lucas in fact stated to his partner and two other officers that he was scratched by the wood.  This proves that Lucas was standing at the inaccessible to the public window and was peering inside defendant’s residence.

Furthermore, Lucas and D’Agostino testified/wrote that they split in two different directions.  Lucas went towards the “woods” (he meant the bushes located before defendant’s’ residence), while D’Agostino went towards the sheriff’s cars parked at the top of the driveway.  This coud only happen if Lucas was standing at the edge of the porch at the side door window and from there he went behind the bushes (the “woods”) located in the front of the home.  That was the only route he had available, because the two planters were in his way and he could not go back toward the door easily. 

If both of them were standing in front of the door, there was no reason for them to take different routes. 

In sum, it is important to note that Lucas has changed his story a number of times:  at one time he claims that he was walking up the front stairs and he saw a man standing there and pointing a gun; in another version he claims that he was standing at the open door and that he then saw a person coming toward him; at a third time, he claimed that there was an altercation; a fourth scenario was that he claimed that defendant never said anything to him (i.e., that there was no altercation); a fifth scenario is that he wrote in his report that he “jumped off the porch” (meaning that he was already on the porch and not just coming up the stairs); a sixth version was that he claimed that he never rang the doorbell; a seventh scenario is that he stated to his colleagues that he rang the doorbell (this is confirmed by the statement of other officers who wrote that Lucas told them that defendant answered the door); in another version, he claimed that defendant was barricaded, yet he also claimed that defendant had his front door wide open;  yet another version was he claimed that he saw a “shotgun” pointed at him, but then he changed his story (after he had a chance to illegally enter defendant’s home) and he claimed that he saw a single-shot Ruger hunting rifle; in another version he claimed that he saw a bomb at the porch, only to change his story and claim that he saw a “metal ammunition box”.

The grand jury was mislead by the State when testimony was elicited from D’Agostino regarding the pointing of a gun out of a “window” by the defendant.  The officers had indicated that they saw defendant standing behind a glass storm door and he never opened the door.

In State v. Hogan 144 N.J. 236, the Court stated the obvious: That the prosecution is precluded from deceiving the grand jury or presenting evidence in a way that is tantamount to telling the grand jury a half-truth because any distorted version of the facts interferes with the grand jury’s decision-making function.

Q: At the Grand Jury, the presenting Prosecutor asked a witness: And you have been made aware that prior to the eviction Mr. Stephanatos had made threats indicating I’m not going anywhere, I don’t have to pay taxes to Wayne, because I don’t have any children in the school system, correct?

A That’s correct. (GJT8-18 to 23).

Contrary to the prosecutor’s misstatement, the defendant never claimed that he did not “have to pay taxes to Wayne.”  As the prosecutor was aware, it was the defendant’s contention that he did not owe taxes as his house had been “over-assessed.”  The defendant had gone through legitimate means in civil courts to attempt to redress this issue.  Prejudice to the defendant was intentionally created by the State and can’t be countenanced.

The fallacy of that statement can also be easily revealed by the significant taxes paid by residents in Wayne Township:  the average taxes are $10,000, so if defendant had not paid taxes since 1993 (the false statement made by the conspirators), then the amount of taxes due would have been $200,000 and more.  However, the amount of disputed taxes was $20,000 or less.

By falsely advising the grand jurors that the defendant did not believe he had to pay taxes, the Prosecutor depicted the defendant as a criminal and as an individual who the grand jury (who all pay taxes) would resent.  The picture painted of defendant was damning – depicting him in this fashion and as a violent person.  All of this created irreparable harm to the defendant and the grand jury proceedings.  If the defendant had been permitted to testify, the grand jury would have gotten a true picture of the man and his background; been able to judge his credibility; and would have heard a consistent, true version of events with corroborating documentary and physical evidence.

POINT VIII

The defendant is entitled to the personnel and medical history files of officers Lucas and D’Agostino.  At the very least, there should be an in camera review.

The evaluation of “whether police personnel records should be disclosed” as evidence of an arresting police officer’s prior bad acts “involves a balancing between the public interest in maintaining the confidentiality of police personnel records and a defendant’s guarantee of cross-examination under the Confrontation Clause” of the Sixth Amendment of the United States Constitution and Article 1, Section 10 of the New Jersey Constitution. State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div. 1998).

Defendant’s right to confront witnesses is guaranteed by both the Federal and New Jersey Constitutions. State v. Budis, 125 N.J. 519, 530 (1991) (citing U.S. Const. amend. VI; N.J. Const. art 1, ¶ 10).  “The right to cross-examine is an essential element of that right.” State v. Harvey, 151 N.J. 117, 188 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000).  The right of confrontation affords a defendant the opportunity to question the State’s witnesses, protects against improper restrictions on the questions asked during cross-examination, and affords the accused the right to elicit favorable testimony on cross-examination. Budis, supra, 125 N.J. at 530-31.  “Cross-examination is the principal means by which a witness’s credibility is tested.” State v. Harris, 316 N.J. Super. 384, 397 (App. Div. 1998). 

The credibility and truthfulness of Officers Lucas and D’Agostino is in question in this matter.  The State’s case is absolutely dependent upon their testimony.

A criminal defendant “‘must be afforded the opportunity through effective cross-examination to show bias on the part of adverse state witnesses.’” State v. Williams, 403 N.J. Super. 39, 49-50 (App. Div. 2008) (quoting State v. Sugar, 100 N.J. 214, 230 (1985)), aff’d as modified, 197 N.J. 538 (2009).  A “witnesses’ credibility may be attacked by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate to issues in the case at bar.” Harris, supra, 316 N.J. Super. at 397 (citing Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974).  Specifically, “[c]ourts have permitted the disclosure of police personnel records where they may reveal prior bad acts that bear ‘peculiar relevance’ to the issues at trial.” Id. at 398.  For example, courts “allow either direct or in camera inspection of police personnel records when the defense claims the officer was the aggressor and the court finds that parts of the officer’s personnel history may be relevant to the officer’s credibility or to the defendant’s claim of self-defense.” Ibid.

As to the issue before this Court, “The determination of whether police personnel records should be disclosed involves a blending between the public interest in maintaining the confidentiality of police personnel records and a defendant’s guarantee of cross-examination under the Confrontation Clause.” Harris, supra, 316 N.J. Super. at 397-98.  In furtherance of that balancing test, the Appellate Division has held that where a defendant seeks to review a police officer’s personnel file the defendant:  “must advance ‘some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw.’” Id. at 398 (quoting State v. Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980)).  However, it’s not required that the defendant first establish that the personnel file “actually contains relevant information.” Ibid. On establishing a right to inspect the police officer’s personnel file, “[t]he disclosure . . . should be made to both the defense and the State in chambers and on the record.” Id. at 387.

In Harris, the Court directed that the State turn over the arresting officer’s personnel file for an in camera review, in a post-conviction relief motion.  The defendant had presented evidence that the arresting officer had taken money from him and his friends; had planted drugs on them; and had harassed them on other occasions prior to the incident leading to arrest. Harris, supra, 316 N.J. Super. at 391.  Also, that the arresting officer was a drug user, and had been suspended from the police department.  A newspaper had reported that the police department was investigating the arresting officer for alleged shakedowns of other individuals. The Court determined that because the defendant had produced evidence of a factual predicate that would make it reasonably likely that information in the personnel file could affect the officer’s credibility, the Court directed that the personnel file be turned over for an in camera inspection.

The contradictions, numerous versions of the offense and untruths dictate that the personnel files and the medical history files of Officers Lucas and D’Agostino should be disclosed to the defense in Stephanatos.  At the very least, there should be an in camera review.

POINT IX

Defendant is entitled to a hearing pursuant to State v. Driver, 38 N.J.. 255 (1962) to determine the admissibility of the recordings made in this matter.

Defendant moves for an Order requiring a pretrial hearing in this matter pursuant to the criteria set forth in State v. Driver, 38 N.J. 255 (1962) regarding the admissibility of any and all audio and video tapes to be offered in evidence in this matter.  Driver compels a hearing prior to admissibility that the particular recording device was capable of taking the statement; that the operator was competent and that the recording is authentic and correct.  The Court must assume that no deletions, additions or changes have been made to the recording and that it is audible.  The same applies to the accuracy of any transcripts of any recording.  Defendant reserves the right to object to any prejudicial content on a tape (R.403) and on the ground of relevancy (R. 401)  The same applies to “other acts” evidence contained therein (R. 404B).

Point X

The charges brought under N.J.S. 2c:12-1b(9) must be dismissed with prejudice as it is not applicable in non-law enforcement activities.  Officers Lucas and D’Agostino were not wearing law enforcement uniforms.  They were wearing process server uniforms, as per their grand jury testimony, they never announced themselves as police officers and they testified that they never knocked or rang the doorbell at defendant’s premises.

Officers Lucas and D’Agostino did not wear law enforcement uniforms. It is crucial that they did not identify themselves as law enforcement officers and that they did not have a mandatory Warrant for Removal.  In their own testimony, they never claimed that they ever announced themselves.  They are sheriff’s employees working to deliver documents (as they testified), not police officers.  Their duties during that day were not law enforcement duties, because this was a civil matter.

See 2C:25-19 - Definitions 

"Law enforcement officer" means a person whose public duties include the power to act as an officer for the detection, apprehension, arrest and conviction of offenders against the laws of this State.

Here, the public duties of Lucas and D’Agostino were not that of police officers.  Defendant never knew that they were acting as law enforcement officers, as they never had a Warrant for Removal from a Law Division Judge and they were not wearing law enforcement officer’s uniforms and they never announced themselves.  They never knocked or rang the doorbell.

It is respectfully submitted that 2C:12-1B(9) is meant to protect law enforcement personnel in the performance of their law enforcement duties.  It is not meant to apply to process server situations.  This is also demonstrated by the self-defense statutes that provide that the defense of one’s home is not applicable in law-enforcement situations where the police officer is armed with a warrant.

The two sheriff’s employees were not performing duties of law-enforcement officers (set forth above).  They know it and that is why they originally filed charges under section 2C:12-1b(4).  As they stated at the grand jury proceedings, they were only trying to “deliver documents”.  The officers initially filed charges under section 2C:12-1b(4) (the person or sheriff employee section); later, they changed their charges to fall under 2C:12-1b(9)(law enforcement officer).  Why did they change the charges when it is clear that they were working as process servers and not police officers?  Perhaps they changed the charges to be able to add an additional $200,000 in bail and to hold the defendant in jail.  Or, perhaps for public consumption and to force an unwarranted plea bargain.  The bail originally set was unconscionable considering the panorama of facts and circumstances, as well as the defendant’s impeccable background.  The officers did not have a Warrant for Removal as is mandated by law to allow them to enter a dwelling and remove a tenant.  2C:12-1b(9) is meant to protect law enforcement personnel in the performance of their law enforcement duties and not meant to cover sheriff’s officers in the performance of non-law enforcement duties.  This was a civil matter, not a criminal matter.   The public duties of the process server were not “detection, apprehension, arrest and conviction of offenders against the laws of this State”.  Buttressing this is the fact that the officers can be sued for damages under Section 1983 for a wrongful eviction, which means that they are not agents of the state in the circumstances of this case, but they were in fact agents of ATF/DelVecchio, pursuing a continuous unlawful conspiracy against the defendant from beginning to end, causing irreparable harm to the defendant.

POINT XI

The charges under N.J.S. 2c:17-2c must be dismissed with prejudice as defendant’s home was located in a heavily wooded, remote area of Wayne Township, where less than 2 homes were located and less than 2 people were within 100 feet of defendant’s home. 

Count 4 charges that the defendant “did recklessly create a risk of widespread injury or damage by purposely or knowingly barricading himself into 687 Indian Road . . . while armed with a deadly weapon, contrary to the provisions of N.J.S. 2C:17-2c.”.

 N.J.S.A. 2C:17-2c provides, in pertinent part:

 A person who recklessly creates a risk of widespread injury or damage commits a crime of the fourth degree, even if no such injury or damage occurs.

 N.J.S.A. 2C:17-2e provides: “For purposes of this section, widespread injury or damage means serious bodily injury to five or more people or damage to five or more habitations or to a building which would normally have contained 25 or more persons at the time of the offense.”

 It is important to note here that the defendant’s home was in a heavily wooded, isolated area of Wayne, New Jersey.  There are no homes neighboring to the north.  There is only one home neighboring to the east (about 50 feet away) where there was only one woman present and another to the west (about 100 feet away) where the owners were at work.  Thus, this charge should be dismissed, as less than five people and less than five habitations were within 100 feet from defendant’s home.  The only person at risk of serious injury or death was the defendant as the SWAT team got the go ahead to storm the house at about 1:30 pm on June 28, 2011.  It was a miraculous coincidence that at that time the defendant finished sending his emergent appeals to stop the reckless onslaught of the sheriff’s employees. 

The Prosecutor did not advice the grand jury regarding the “five or more people or damage to five or more habitations” requirement for this charge. 

Furthermore, defendant was not notified that he had committed an offense or that he was under arrest.  At no time did he display a weapon.  There was no evidence presented to the grand jurors that the defendant threatened anyone with a gun while inside his own home.  He did not barricade himself inside his home.  The media reports stated that on June 28, 2011, the Sheriff stated that the defendant was armed with a “shotgun”.  However, no such weapon was ever found, as it was a fabrication to perform an illegal arrest and seizure and an illegal removal without having a Warrant for Removal.

Evidence was not presented that the defendant had erected any barrier to prevent the advancement of the sheriff’s officers.  The defendant was sitting inside his office and doing his business, because he had been assured by the Sheriff in May 2011 that no tenants would be removed from the premises.  The defendant had no reason to erect a barricade as he knew that the Sheriff’s office did not have the requisite Warrant for Removal and no such “barricade” evidence was presented during the grand jury proceedings.  On the contrary, according to the sheriff’s officers, the defendant’s door was wide open.  It should be noted that the door of the home is not considered a barricade.   

The defendant is concerned that due to the delay in this case, evidence may have been destroyed.  The Sheriff has removed from his web pages all references to his process service.  Prior to June 28, 2011, the Passaic County Sheriff had prominently displayed the process service unit on his web pages, asserting therein that the “sheriff acts as the agent for the plaintiff”, consistent with the reply letter the Sheriff sent in May 2011 to the defendant stating that the Sheriff “only takes orders from the Plaintiff.”  The landscape before his former home has also been changed by removing the yews and rhododendrons from the front of the home.

An indictment should be dismissed as facially deficient “if it fails to charge an offense,” by failing to charge “‘all of the critical facts and each of the essential elements which constitute the offense alleged.’”  State v. Bennett, 194 N.J. Super. 231, 234 (App. Div. 1984) (quoting Wein, supra, 80 N.J. at 497).  An indictment should be dismissed for lack of sufficient evidence if the grand jury was not presented “with at least some evidence as to each element of a prima facie case.” Ibid.  Accordingly, Count 4 charge must be dismissed with prejudice.

POINT XII

State v. Orrechio, 16 N.J. 125(1954) should be applied in Stephanatos.

It is respectfully submitted that there are numerous serious legal issues raised regarding the unfair grand jury presentation in this matter.  In part, false testimony presented to the grand jury; not presenting evidence of the illegal background leading up to the charges perpetrated by the conspirators; the fact that this was a civil matter based upon profit for the same; and no explanation was given to the grand jury of the specific violations of the law by the conspirators and what is required to be done if there was to be legality and legitimate process, which brought Officers Lucas and D’Agostino to the defendant’s home on the day in question.  Add to this the constitutional violations (subject to the motion to suppress); the doctrine of “false in one, false in all” not explained to the grand jury; the fact that the grand jury was not charged as to the rights of protection by the homeowner where it involves his property (the defense of home) as well as the unlawful entry by the officers on defendant’s property.  The law of duress and self-defense should have been charged to the grand jury by the prosecutor.  Instead of a fair presentation there was a biased presentation in actuality depicting the defendant as a “monster”.

An accused is also entitled to have a valid defense or justification presented to the grand jury where it exonerates the accused.  This obligation does not, however, impose a duty on the prosecutor to investigate or cultivate every potential defense or justification for a felony offense for which indictment is being sought.  Defenses which must be disclosed to the grand jury are those that clearly tend to establish innocence.  The defenses set forth herein clearly and compellingly do so.  Furthermore, if the grand jurors were deceived and misinformed about applicable defenses to the charges, a finding of a “true bill” would be undermined and should not be allowed to stand.  In Stephanatos, there was a plethora of misinformation.  There was also the testimony of Lucas wherein he related damaging blatant hearsay statements made to him by Robert Del Vecchio.  This created further bias and damage, especially where Del Vecchio’s motivations, actions, background and co-conspirator status were not presented to the grand jury.  The State deliberately gave a false impression about him when they had information available, including documentary evidence, which completely negated his credibility.  The State should not be permitted to leave a knowingly false impression.

The fact that there was a completely one-sided, disregard for the truth, presentation tainted the proceedings irrevocably and constituted prosecutorial misconduct.  The totality of the circumstances must have been developed, and wasn’t.  Exculpatory evidence should have been presented.  Defendant incorporates by reference all of the other errors raised in this memorandum.  It is submitted that each of these points, taken singularly mandate a dismissal of the Indictment.  Moreover, taken cumulatively, the legal errors in this case are of such a magnitude that they undeniably prejudiced the defendant’s rights and, in their aggregate, rendered the grand jury proceedings totally unfair.  Fundamental fairness and constitutional concepts dictate a dismissal.  See State v. Orrechio, 16 N.J. 125 (1954).

The grand jury “has always occupied a high place as an instrument of justice” in New Jersey’s legal system, serving the dual purpose of determining whether an accused should be subjected to trial, while simultaneously safeguarding citizens against arbitrary, oppressive and unsupported criminal proceedings.  In re the Essex County Grand Jury Investigation, 368 N.J. Super. 269, 279 – 80, 845 A.2d 739 (Law Div. 2003) (quoting State v. Del Fino, 100 N.J. 154, 165, 495 A.2d 60 (1985)); see also State v. Sivo, 341 N.J.Super. 302, 325, 775 A.2d 227 (Law Division.2000) (“[t]he grand jury acts as the conscience of the community”).  In Stephanatos, the grand jury and its purpose was perverted and undermined.

CONCLUSION

The grand jury clause of the Fifth Amendment provides that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const., Amend. V. "Implicit in that language is the guarantee that a defendant will be indicted only upon the informed and independent determination of a legally constituted grand jury." United States v Sears, Roebuck and Company Inc., 719 F.2d 1386, 1391 (9th Cir. 1983), cert. denied, 465 U.S. 1079 (1984). "The prosecutor may not circumvent this safeguard by over-reaching conduct that deprives the grand jury of autonomous and unbiased judgment. If the grand jury is to accomplish either of its functions, independent determination of probable cause that a crime has been committed and protection of citizens against unfounded prosecutions, limits must be set on the manipulation of grand juries by overzealous prosecutors." United States v. Al Mudarris, 695 F.2d 1182, 1184(9th Cir. 1983), cert. denied, 461 U.S. 932 (1983). "Dismissal of an indictment is therefore warranted on constitutional grounds if prosecutorial misconduct has undermined the grand jury's ability to make an informed and objective evaluation of the evidence presented to it." Sears, 719 F.2d at 1391. "Although deliberate introduction of perjured testimony is perhaps the most flagrant example of misconduct, other prosecutorial behavior, even if unintentional, can also cause improper influence and usurpation of the grand jury's role." United States v. Samango, 607 F.2d 877, 882 (9th Cir. 1979). The Supreme Court has articulated the test as follows: Courts may dismiss indictments when the "violation substantially influenced the grand jury's decision to indict, or if there is a 'grave doubt' that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (citations omitted).

An indictment may also be dismissed through the exercise of the court's inherent supervisory power. United States v. Williams, 504 U.S. 36, 45-47 (1992); United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir.), cert. denied, 434 U.S. 820 (1977). "While a constitutional analysis focuses on preserving fairness for the individual defendant and remedying any harm that has been done to his basic rights, the exercise of a court's inherent supervisory power serves two institutional purposes: deterring governmental misconduct and protecting the integrity of the judicial process." Sears, 719 F.2d at 1394 (Norris, J., dissenting). "Because constitutional and supervisory power analyses serve fundamentally different purposes, application of either dictates that different factors be weighed in determining whether dismissal of an indictment is warranted. . . . [D]ismissal of an indictment on constitutional grounds requires a finding that the prosecutor's misconduct biased the grand jury. Dismissal on supervisory power grounds, on the other hand, is based on a combination of different factors: the egregiousness of the prosecutor's misconduct, the need to discipline the particular prosecutor in light of past misconduct, and the effectiveness of any available sanctions that are less drastic than dismissal of die indictment." Id. at 1395. In addition, before dismissing based on its supervisory powers, a court must find that the defendant has suffered actual prejudice as a result of the government's conduct. Bank of Nova Scotia, 487 U.S. at 263 ("The prejudicial inquiry must focus on whether any violations had an effect on the grand jury's decision to indict. If violations did substantially influence this decision, or if there is grave doubt that the decision to indict was free from such substantial influence, the violations cannot he deemed harmless."); United States v. Lopez, 989 F.2d 1032, 1041-42, as amended, 4 F.3d 1455 (9th Cir. 1993).

Although prosecutors are given broad latitude and dismissals based on misconduct before the grand jury are rare, the Ninth Circuit stated forcefully in United States v. Al Mudarris that abuses of the grand jury will not be tolerated by that court:

The government is on notice that this court will not brook behavior that degrades the grand jury into a rubber stamp, and the testing of the prosecutor's evidence into an empty ritual. "A line must be drawn beyond which prosecutor's control over a cooperative grand jury may not extend." United States v. Samango, 607 F.2d at 882. The "cumulative effect of [prosecutorial] errors and indiscretions," id. at 884, came uncomfortably close to crossing that line here. Prosecutors must stay well back of it in the future. It is only because of the overwhelming evidence of guilt that was presented to the grand jury, and our belief that this opinion will have the requisite prophylactic effect, that we affirm.

695 F.2d at 188-89.

For the foregoing reasons and authorities cited, the defendant Basilis N. Stephanatos respectfully submits that the indictment must be dismissed with prejudice.  Defendant also requests the specific relief delineated in the Omnibus Motions, including the cross examination of Officers Lucas and D’Agostino at a hearing to prove that their testimony before the grand jury was false, fraudulent and intentionally misleading.  Additionally, there must be a hearing on the motion to suppress.  Defendant will testify that his doors were all closed and locked with a deadbolt and that the two officers performed an unlawful search inside his dwelling in violation of his constitutionally guaranteed rights and in violation of state law prohibiting peering inside residences.  The state has admitted in proceedings before Judge Filko that the sheriff’s officers did not have a Warrant.  Thus, they were illegally attempting to remove defendant from his dwelling while working as agents for Robert Del Vecchio, ATF, et. al.  Defendant incorporates herein his prior submissions to this Court.

                                                                        Respectfully submitted,

___________________________________

Miles Feinstein, Esq.

Attorney for defendant                                   

Basilis N. Stephanatos

Dated: November 23, 2015