WALTER DEWEY OF PASSAIC COUNTY COMMITTED PROSECUTORIAL MISCONDUCT AND VIOLATED 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

RONALD LUCAS AND VICTOR D'AGOSTINO, TWO PASSAIC COUNTY OFFICERS COMMITTED PERJURY DURING GRAND JURY TESTIMONY

WALTER DEWEY, JR. OF PASSAIC COUNTY COMMITTED PROSECUTORIAL MISCONDUCT AND VIOLATED 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

Color of Law Abuses

U.S. law enforcement officers and other officials like judges, prosecutors, and security guards have been given tremendous power by local, state, and federal government agencies—authority they must have to enforce the law and ensure justice in our country. These powers include the authority to detain and arrest suspects, to search and seize property, to bring criminal charges, to make rulings in court, and to use deadly force in certain situations.

Preventing abuse of this authority, however, is equally necessary to the health of our nation’s democracy. That’s why it’s a federal crime for anyone acting under “color of law” willfully to deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. “Color of law” simply means that the person is using authority given to him or her by a local, state, or federal government agency.

The FBI is the lead federal agency for investigating color of law abuses, which include acts carried out by government officials operating both within and beyond the limits of their lawful authority. Off-duty conduct may be covered if the perpetrator asserted his or her official status in some way.

During 2012, 42 percent of the FBI’s total civil rights caseload involved color of law issues—there were 380 color of law cases opened during the year. Most of the cases involved crimes that fell into into five broad areas:


Excessive force;
Sexual assaults;
False arrest and fabrication of evidence;
Deprivation of property; and
Failure to keep from harm.

Excessive force: In making arrests, maintaining order, and defending life, law enforcement officers are allowed to use whatever force is “reasonably” necessary. The breadth and scope of the use of force is vast—from just the physical presence of the officer…to the use of deadly force. Violations of federal law occur when it can be shown that the force used was willfully “unreasonable” or “excessive.”

Sexual assaults by officials acting under color of law can happen in jails, during traffic stops, or in other settings where officials might use their position of authority to coerce an individual into sexual compliance. The compliance is generally gained because of a threat of an official action against the person if he or she doesn’t comply.

False arrest and fabrication of evidence: The Fourth Amendment of the U.S. Constitution guarantees the right against unreasonable searches or seizures. A law enforcement official using authority provided under the color of law is allowed to stop individuals and, under certain circumstances, to search them and retain their property. It is in the abuse of that discretionary power—such as an unlawful detention or illegal confiscation of property—that a violation of a person’s civil rights may occur.

Fabricating evidence against or falsely arresting an individual also violates the color of law statute, taking away the person’s rights of due process and unreasonable seizure. In the case of deprivation of property, the color of law statute would be violated by unlawfully obtaining or maintaining a person’s property, which oversteps or misapplies the official’s authority.

The Fourteenth Amendment secures the right to due process; the Eighth Amendment prohibits the use of cruel and unusual punishment. During an arrest or detention, these rights can be violated by the use of force amounting to punishment (summary judgment). The person accused of a crime must be allowed the opportunity to have a trial and should not be subjected to punishment without having been afforded the opportunity of the legal process.

Failure to keep from harm: The public counts on its law enforcement officials to protect local communities. If it’s shown that an official willfully failed to keep an individual from harm, that official could be in violation of the color of law statute.

Filing a Complaint

To file a color of law complaint, contact your local FBI office by telephone, in writing, or in person. The following information should be provided:


All identifying information for the victim(s);
As much identifying information as possible for the subject(s), including position, rank, and agency employed;
Date and time of incident;
Location of incident;
Names, addresses, and telephone numbers of any witness(es);
A complete chronology of events; and
Any report numbers and charges with respect to the incident.

You may also contact the United States Attorney’s Office in your district or send a written complaint to:

Assistant Attorney General Civil Rights Division Criminal Section 950 Pennsylvania Avenue, Northwest Washington, DC 20530

FBI investigations vary in length. Once our investigation is complete, we forward the findings to the U.S. Attorney’s Office within the local jurisdiction and to the U.S. Department of Justice in Washington, D.C., which decide whether or not to proceed toward prosecution and handle any prosecutions that follow.

Civil Applications

Title 42, U.S.C., Section 14141 makes it unlawful for state or local law enforcement agencies to allow officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or U.S. laws. This law, commonly referred to as the Police Misconduct Statute, gives the Department of Justice authority to seek civil remedies in cases where law enforcement agencies have policies or practices that foster a pattern of misconduct by employees. This action is directed against an agency, not against individual officers. The types of issues which may initiate a pattern and practice investigation include:


Lack of supervision/monitoring of officers’ actions;
Lack of justification or reporting by officers on incidents involving the use of force;
Lack of, or improper training of, officers; and
Citizen complaint processes that treat complainants as adversaries.

Under Title 42, U.S.C., Section 1997, the Department of Justice has the ability to initiate civil actions against mental hospitals, retardation facilities, jails, prisons, nursing homes, and juvenile detention facilities when there are allegations of systemic derivations of the constitutional rights of institutionalized persons.

Report Civil Rights Violations


File a Report with Your Local FBI Office
File a Report over Our Internet Tip Line
Visit Our Victim Assistance Site

Resources

Deprivation of Rights Under Color of Law Statute
Principles for Promoting Police Integrity (pdf)
Addressing Police Misconduct

FBI Newark Claremont Tower 11 Centre Place Newark, NJ 07102 Phone: (973) 792-3000 Fax: (973) 792-3035 -------------------------------------------------------------------------------- The corrupt and/or incompetent Chancery Judge McVeigh.  She conspired with Robert Del Vecchio, American Tax Funding and other convicted felons to sign off on judgments of possession without having subject matter jurisdiction over land possession issues and without performing any hearings.  Land possession judgments are adjudicated by the Law Division and not by the Chancery Court.  She caused millions of dollars in damages by illegally evicting people from their homes;  she also violated the anti-eviction act and the summary dispossess act of New Jersey. /////////////////////-------------------------///////////////////// Dear Chancery Judge McVeigh and Assignment Judge Jacobson: I believe that I have given you plenty of time to respond to the VERY SERIOUS CHARGES against you (see attached emails).  As of now, you have failed to respond.  As you know, when a person has a duty to respond and fails to do so, this silence can be used against that person as evidence of guilt. All the news reports indicate that because of your recklessness, or incompetency, or even conspiracy, you injured thousands of property owners and that you forced people out of their properties by issuing fraudulent "judgments of possession" without having any subject matter jurisdiction and without performing any hearing or trial and without providing any notice.  Even worse, when the shocked property occupant saw the eviction notices and asked for the 6-month stay written in the NJ statutes, you refused to do that and allowed the sheriff to forcefully throw these people onto the street.  All that without you having a subject matter jurisdiction and without performing any hearing or fact finding or application of the law to the facts. You are also charged of violating a number of New Jersey Court Rules:  see R. 4:6-7, Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:6-7 (2015); 1:13-4. Transfer of Actions, Rule 1:7-4(a).  DISGRACEFUL, CORRUPT NEW JERSEY JUDICIARY. THESE ARE SOME PRETTY SERIOUS, HORRIFIC AND TERRIFYING ACCUSATIONS AGAINST YOU. How do you respond?  The public and the victims await to hear from you.  Please do not continue to bring disgrace to the honorable New Jersey Judiciary.  ////////////////-------------------------///////////////////////////---------------------/////// Office of the Passaic County Sheriff William Maer Media Information & OPRA Processing Unit 11 Sheriff's Plaza Paterson, NJ 07502 bmaer@pcsheriff.org 973-389-5900 Dear Sheriff Berdnik/Mr. Maer: There are some news reports that the Chancery Judge Margaret McVeigh has been issuing judgments of possession without having subject matter jurisdiction and without performing any hearings.  The news reports state that the Passaic County Sheriff has been executing orders issued by this judge (Margaret Mary McVeigh), although she had no subject matter jurisdiction over land possession.  The land possession is adjudicated in the Law Division, Special Civil Part or regular Law Division. As you know, at least 20 individuals and entities pleaded guilty to defrauding homeowners using tax foreclosure proceedings.  One of the ways to do this was to fool this Judge McVeigh into drafting the "judgments" or "orders".  For example, the accusations say that she apparently allowed the issuance of a "Final Judgment" where the following language was inserted by the convicted felon Robert Del Vecchio, American Tax Funding, and others: “AND IT IS FURTHER ORDERED AND ADJUDGED that the plaintiff dully recover against the said defendant …possession of the premises… and that a Writ of Possession issue thereon”. This Chancery Court judge had no jurisdiction over the subject matter of land possession.  As of today, she has refused to respond as to why did she insert or allowed that language to be inserted into that "final judgment"? Further accusations are that she never even held any hearing over the land possession issue.  Margaret McVeigh just merely allowed that language to be inserted into the text, so that the convicted felon Robert Del Vecchio immediately seizes the property of the land possessor without any due process and in violation of several New Jersey statutes. From what we understand, you (the Passaic County Sheriff) executed these obviously void and illegal judgments or orders despite the fact they were not issued by the Law Division. In some cases, you forcibly removed the possessors of the land or tenants and that you did cause damages.  You then filed charges against homeowners who would refuse to leave their properties by refusing to obey void judgments or orders from a court that has no subject matter jurisdiction or personal jurisdiction. How do you respond to such accusations or questions?  Didn't you know that only the Law Division has subject matter jurisdiction over property possession?  Did you know that land possession judgments/orders issued by a Chancery Court are void and have no legal effect?  Did you know that you may be held liable for damages based on the Forceful Entry and Detainer statutes? I look forward to your reply. Sincerely, Emma Rogers emmarogers456@aol.com /////////////////////////---------------------------//////////////////////   Dear Judge Margaret McVeigh: We have uncovered some new HORRIFIC AND TERRIFYING ACCUSATIONS AGAINST YOU.  You apparently allowed the issuance of a "Final Judgment" where the following language was inserted by the Plaintiffs (convicted felon Robert Del Vecchio, American Tax Funding, and others): “AND IT IS FURTHER ORDERED AND ADJUDGED that the plaintiff dully recover against the said defendant …possession of the premises… and that a Writ of Possession issue thereon”. Of course you had no jurisdiction of the subject matter of land possession.  Why did you insert or allowed that language to be inserted into that "final judgment"? The HORRIFIC AND TERRIFYING ACCUSATIONS AGAINST YOU is that you never even held any hearing over the land possession issue.  You just merely allowed that language to be inserted into the text, so that the convicted felon Robert Del Vecchio immediately seizes the property of the land possessor without any due process and in violation of several New Jersey statutes.   They did not follow the Wrongful Entry and Detainer Act and the Anti-Eviction Act, or the Summary Dispossess Act.  As a result, they caused millions of dollars in damages by forcibly removing tenants or land possessors without due process. FYI, subject matter jurisdiction can neither be conferred by agreement of the parties nor waived as a defense, and a court must dismiss the matter if it determines that it lacks subject matter jurisdiction. Macysyn v. Hensler, 329 N.J. Super. 476, 481 (App. Div. 2000) (indicating that such a motion can be made "at any time"); see also R. 4:6-7; Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:6-7 (2015). How do you respond to these new charges against you? Sincerely, Mary Brown Crime Investigator  //---------------------///////////////-----------------  ISSUANCE OF JUDGMENTS OF POSSESSION OR WRITS WITHOUT SUBJECT MATTER JURISDICTION Dear Judge Margaret McVeigh: There are numerous reports in the media that you have been issuing judgments of possession or facilitating the issuance of same, although you have no subject matter jurisdiction over land possession issues.  The Law Division has exclusive jurisdiction over land possession judgments and issuance of writs or warrants - the Chancery Court has no jurisdiction over land possession issues, yet you have been issuing judgments of possession and associated orders.  You know of course that such judgments are void ab initio, a legal nullity. Apparently, you have caused significant financial and other damage to residents of this state as a result of your allegedly reckless or even criminal acts. There are a lot of people accusing you of corruption and even conspiracy to intentionally damage homeowners and business owners through your reckless acts to ensure tax collection.  How do you plea?  Many people are calling for your arrest and resignation.  See for example this post: MEET THE CORRUPT AND/OR INCOMPETENT CHANCERY JUDGE MARGARET MCVEIGH.  SHE CONSPIRED WITH OR WAS MISLEAD BY ROBERT DEL VECCHIO, AMERICAN TAX FUNDING AND OTHER CONVICTED FELONS  TO SIGN OFF ON JUDGMENTS OF POSSESSION WITHOUT HAVING SUBJECT MATTER JURISDICTION OVER LAND POSSESSION ISSUES. http://metroforensics.blogspot.com/2016/03/the-corrupt-andor-incompetent-chancery.html Do you have anything to say to these serious charges?  Did you issue or facilitated the issuance of judgments of possession or writs or warrants of possession without having subject matter jurisdiction?  A simple YES or NO would suffice.  The public and victims need to know. Thank you in advance for your cooperation with this inquiry.  We want to make sure that unfounded allegations are not released into the media. Sincerely, Mary Brown Crime Investigator NOTE:  As of today's date (3-7-2016), this judge has not responded to the accusations above.  //------------------------///////////////////////-------------------- Office of the Passaic County Sheriff William Maer Media Information & OPRA Processing Unit 11 Sheriff's Plaza Paterson, NJ 07502 bmaer@pcsheriff.org 973-389-5900 Dear Sheriff Berdnik/Mr. Maer: There are some news reports that the Chancery Judge Margaret McVeigh has been issuing judgments of possession without having subject matter jurisdiction and without performing any hearings.  The news reports state that the Passaic County Sheriff has been executing orders issued by this judge (Margaret Mary McVeigh), although she had no subject matter jurisdiction over land possession.  The land possession is adjudicated in the Law Division, Special Civil Part or regular Law Division. As you know, at least 20 individuals and entities pleaded guilty to defrauding homeowners using tax foreclosure proceedings.  One of the ways to do this was to fool this Judge McVeigh into drafting the "judgments" or "orders".  For example, the accusations say that she apparently allowed the issuance of a "Final Judgment" where the following language was inserted by the convicted felon Robert Del Vecchio, American Tax Funding, and others: “AND IT IS FURTHER ORDERED AND ADJUDGED that the plaintiff dully recover against the said defendant …possession of the premises… and that a Writ of Possession issue thereon”. This Chancery Court judge had no jurisdiction over the subject matter of land possession.  As of today, she has refused to respond as to why did she insert or allowed that language to be inserted into that "final judgment"? Further accusations are that she never even held any hearing over the land possession issue.  Margaret McVeigh just merely allowed that language to be inserted into the text, so that the convicted felon Robert Del Vecchio immediately seizes the property of the land possessor without any due process and in violation of several New Jersey statutes. From what we understand, you (the Passaic County Sheriff) executed these obviously void and illegal judgments or orders despite the fact they were not issued by the Law Division. In some cases, you forcibly removed the possessors of the land or tenants and that you did cause damages.  You then filed charges against homeowners who would refuse to leave their properties by refusing to obey void judgments or orders from a court that has no subject matter jurisdiction or personal jurisdiction. How do you respond to such accusations or questions?  Didn't you know that only the Law Division has subject matter jurisdiction over property possession?  Did you know that land possession judgments/orders issued by a Chancery Court are void and have no legal effect?  Did you know that you may be held liable for damages based on the Forceful Entry and Detainer statutes? I look forward to your reply. Sincerely, Emma Rogers emmarogers456@aol.com //-------------------------/// The following brief provides all the details of the perjury and prosecutorial misconduct of the Passaic County employees against Dr. Basilis N. Stephanatos.  These corrupt individuals not only took his home that he fully owned, but they also filed fraudulent charges to keep him in jail and justify their wrong doing.  Many of them in Passaic County (that has a reputation that is one of the most corrupt counties in the state) are corrupt as they know that they will get away with it.

MILES R. FEINSTEIN, ESQ.

1135 CLIFTON AVENUE

CLIFTON, NEW JERSEY 07013

TEL: (973) 779-1124

FAX: (973) 779-9883

Attorney for Defendant

Basilis N. Stephanatos

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

SUPERIOR COURT OF NEW JERSEY CRIMINAL DIVISION, PASSAIC COUNTY DOCKET NO.  11002878 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 Wednesday, December 16, 2015, the defendant, Basilis 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 jurors 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 jurors so that they are prejudiced against the defendant regarding the commercial instrument located in the front porch of defendant’s place of business; elicited damaging false testimony from witnesses to prejudice the grand jurors against the defendant; refused to allow the defendant to 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 Ronald Lucas and Victor D’Agostino lied; refused to allow the defendant to provide clearly exculpatory evidence to the grand jurors refuting the allegations of the witnesses and/or negating elements of the alleged offenses; refused to allow the defendant to inform the grand jury that several of his constitutional rights and several state laws were violated by conspirators and the State; refused to allow the defendant to inform the grand jury that Judge Margaret McVeigh violated a number of state laws and NJ Court Rules and other legal procedures 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 (Point I in brief);

(2) An Order dismissing the indictment with prejudice because the more than four (4) year case delay deprived the defendant of his constitutionally-guaranteed right to a speedy trial causing severe economic and non-economic hardship, loss of employment and professional licenses, loss of reputation, and other hardships. 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), State v. Jonathan E. Downs, Docket No. A-0, N.J. Superior Court, Appellate Division, February 14, 2014  (Point II in brief);

(3) An Order dismissing the indictment with prejudice as the grand jury presentation is fatally flawed as no definitions as to “culpability”: (“purposely”, “knowingly,” “recklessly” and “negligently”) were provided to the grand jurors; and the State fraudulently refused to 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 criminal and/or illegal activity (Point III);

(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 Mr. Carl Herman, Esq. 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 (but incorrect or unreasonable) belief (Point IV);

(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 or duress or entrapment (Point V);

(6) An Order dismissing the indictment with prejudice as the State never instructed the grand jurors as to the New Jersey’s self-defense law and defense of dwelling or place of business (Point VI);

(7) An Order dismissing the indictment with prejudice due to the use of perjured testimony, the use of false, misleading and/or fraudulent evidence, the intentional fabrication of damaging or misleading testimony, the exclusion of clearly exculpatory witnesses’ testimony, and the State’s failure or refusal to present clearly exculpatory evidence negating elements of the alleged offenses (Point VII);

(8) An Order dismissing the indictment with prejudice due to the outrageous government conduct in misleading and lying to the grand jury (Point VIII);

(9) 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 Ronald Lucas and Victor D’Agostino; and the medical records of Officer Lucas evidencing no past sport-related or other injuries.  At the very least, there should be in camera review (Point IX);

(10) An Order requiring a pretrial hearing in this matter pursuant to the criteria set forth in State v. Driver, 38 N.J. 255 (1962) (purpose of a Driver hearing is to be sure that the recording device was capable of taking the statement, that its operator was competent, that the recording is authentic and correct, and that no additions or deletions have been made) (Point X);

(11) 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 or police or S.W.A.T. vehicle video and/or audio tapes, telecommunications between the sheriff officers and other state or county personnel during the day of the incident and afterwards, photographs obtained by the S.W.A.T. team and the sheriff personnel or other law enforcement personnel involved.  Finally, any incident reconstruction report will also be beneficial for the defense of the charges.  This was a major event that made headlines in the printed, online and broadcast media and the sheriff radically changed its process division afterwards.  Thus, it is safe to assume that such reconstruction investigation is available from the State or Passaic County or the Sheriff.  Defendant hereby requests that such incident reconstruction report and/or records be made available to the defense.

Any evidence whatsoever which would tend to exculpate the defendant.  Defendant relies upon 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. DiRienzo, 53 N.J. 360 (1969); Rule 20, Rules of Evidence; United States v. Bonanno, 430 F.2d 1060 (2nd Cir. 1970), cert. denied, 400 U.S. 964 (1971); State v. Satkin, 127 N.J. Super. 306 (App. Div. 1974); State v. Carter, 69 N.J. 420 (1976).

(12) The defendant moves for an Order compelling the Prosecutor to make disclosure to the defendant, and, in the case of a tangible item, to produce for inspection and copying by the defendant, all evidence in the possession, custody and control of the prosecutor and/or any of its agents, or others, if the existence is known to the State, when the evidence is favorable to the defendant, and material to the issue of credibility, guilt, or punishment, or bears upon, or could reasonably weaken or effect the credibility of any evidence proposed to be introduced against this defendant by the State, or bears in any material degree on the charges contained in the indictment and prosecution under it, or in any manner may aid the defendant in the ascertainment of the truth.  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 the trial of this cause. Brady v. Maryland, 373 U.S. 83.

(13) The defendant moves for sequestration of witnesses during pretrial hearings and trial.

(14) The defendant specifically reserves the right to challenge the array in the jury pool;

(15) Defendant moves for an Order compelling the State to disclose if the State is going to call an expert at the trial of this matter; and whether any forensic examinations of the computers seized has been done.

(16) An Order compelling the production of all tape, video and electronic or printed matter recordings made in this matter.

(17) 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.  Defendant will rely upon oral argument regarding this request.

(18) An Order suppressing all evidence seized (and dismissing the indictment) as the product of an unlawful search, contrary to the Fourth Amendment of 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, see State v. Reid, 389 N.J. Super. 563, motion for leave to appeal granted, 190 N.J. 250 (2007); U.S.Const. Amend. I; XIV; N.J.Const. Amend. Art I, Par. 6 and Par. 7.  Peering into dwelling places, is a crime that has been committed by the sheriff and county employees as they did not have a law-mandated Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited, et seq.), and were trespassing on defendant’s property and peering through his residential window(s).  See 2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into dwelling places.

(19) An Order suppressing the legally-owned firearms seized, the defendant did not voluntarily consent to the illegal search, Officer Lucas was illegally peering through the front door side window of the defendant’s residence (this is a criminal act, see 2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into dwelling places), he had no law-mandated Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited), the Sheriff employees 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.

(20) 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) (information in the possession, custody and control of the prosecutor concerning the source of the information in the affidavit should have been provided in discovery). 

(21) An Order suppressing all evidence seized based upon irregularities in the execution of the search warrants (including the failure of law enforcement to “knock”); State v. Johnson, 168 N.J. 608 (2001).

(22) An Order suppressing the statement given by the defendant; at the very least, a Jackson-Denno-Miranda hearing must be held to determine the 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).

(23) 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 of the same.

(24) 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 the federal 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).

(25) The charges under the N.J.S. 2C:12-1b(9) statute must be dismissed with prejudice as they are applicable in law enforcement officer activities; Ronald Lucas and Victor D’Agostino were serving court papers, as per their grand jury testimony, they were not wearing dark blue or black law enforcement uniforms (only 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).  The state fraudulently charged the defendant under 2C:12-1B(9) to demand an additional $200,000 cash bail to try to hold the defendant in jail (Point XII).

(26) The charges under the N.J.S. 2C:17-2c statute must be dismissed with prejudice as defendant’s home was located in a 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.  Furthermore, defendant at no time was notified that he had committed an offense or that he was under arrest, at no time did he display a weapon, and at no time did he barricade inside his home (Point XIII).

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

LATEST DEVELOPMENTS REGARDING THE CONSPIRACY AGAINST THE DEFENDANT AND OTHER NEW JERSEY HOMEOWNERS BY THE CRIMINALS WHO HIRED THE SHERIFF TO REMOVE THE DEFENDANT FROM HIS HOME

For this section only, the term “defendant(s)” refers to the conspirators Robert Del Vecchio, American Tax Funding, and many others.  The term “plaintiff(s)” refers to the defrauded homeowners and other property owners in New Jersey, including the defendant, Dr. Basilis N. Stephanatos.

Federal Judge Michael Shipp Orders that Claims of Bid-Rigging in New Jersey Real Estate Tax Auctions May Proceed

Individuals and businesses whose properties were subject to sale for delinquent real estate taxes could pursue antitrust claims against numerous purchasers of tax liens or tax sale certificates for allegedly engaging in an unlawful conspiracy to allocate bids at municipal auctions of tax liens, the federal district court in Trenton has ruled (In re New Jersey Tax Sales Certificates Antitrust Litigation, October 31, 2014, Shipp, M.).

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.  Additionally, 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,” said Scott D. Hammond, Deputy Assistant Attorney General for the Antitrust Division’s criminal enforcement program. “Protecting Americans from these types of bid-rigging schemes remains a high priority for the division.”

The case is No. 12-1893.

Class litigation alleging investors colluded to ratchet up interest rates in municipal auctions of tax liens will move forward after a New Jersey federal judge declined to strike down state and federal antitrust claims.

The plaintiff property owners “allege more than a sufficient amount of factual material tending to show the existence of collusion on the local level,” U.S. District Judge Michael Shipp said Oct. 31 in In re New Jersey Tax Sales Certificates Antitrust Litigation.

“Furthermore, plaintiffs have included allegations sufficient to establish the larger, statewide conspiracy,” 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 the 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. The plaintiffs, after Shipp ruled that there were insufficient facts to allege a conspiracy, amended the consolidated complaint and documented 49 auctions in which two or more defendants conspired beforehand, as well as the numerous investigations and indictments that eventually came about, according to the opinion.

The complaint includes four counts: violation of the federal Sherman Act, the New Jersey Antitrust Act and the New Jersey Tax Lien Law, as well as a common-law claim of unjust enrichment.

The defendants moved for dismissal, calling the pleadings insufficient.

Shipp did dismiss the latter two counts, but declined to strike the two antitrust claims, noting that the complaint “provides the date and location of each alleged instance of collusion.”

The judge 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, Shipp said.

 Not all the defendants were present at each of the auctions cited by the plaintiffs, and none of the defendants was present at the auctions during which the plaintiffs’ debts were sold, the companies pointed out.

“Yet, plaintiffs allege a conspiracy involving bid rotation or bid allocation,” 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.”

Shipp also rejected the defendants’ standing arguments, noting that “it is of no consequence that the moving defendants did not purchase any lien connected to property by plaintiffs or were not present at the auction where those liens were purchased.”

Finally, 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 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.

I.              DESCRIPTION OF THE OFFENSE

In 2000 and though 2009, the defendants and co-conspirators entered into and engaged in a conspiracy to suppress and eliminate competition by rigging bids and engaging in other collusive and fraudulent activities during the real estate foreclosure auctions process in the District of New Jersey. The combination and conspiracy engaged in by the defendants and co-conspirators unreasonably restrained interstate trade and commerce in violation of Sections 1 and 2 of the Sherman Act (15 U.S.C. § § 1 and 2).

The charged combination and conspiracy consisted of a continuing agreement, understanding, and concert of action among the defendant and co-conspirators, the substantial terms of which 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; and

·         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.

II. MEANS AND METHODS OF THE CONSPIRACY

For the purpose of forming and carrying out the charged combination and conspiracy, the defendant and co-conspirators did those things that they combined and conspired to do, including, among other things:

·         engaged in discussions concerning refraining from filing upset bids against each other on real estate subject to the foreclosure auction process;

·         agreed to and did refrain from filing upset bids against each other in order to effect the ultimate selling price of the real estate;

·         agreed to make payoffs to, and receive payoffs from, and made payoffs to and received payoffs from, each other in return for suppressing competition during the real estate foreclosure process;

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

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

·         filed 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.

The Sass Co-Conspirators Have a History Collusion in Tax Lien Auctions in Other Jurisdictions

In addition to the Sass entities’ participation in the collusive activities with respect to TSC auctions in New Jersey, Sass has colluded with other persons and entities at tax lien auctions in other jurisdictions and has been ordered to pay millions of dollars for its participation in such activities.

For example, in 2007, MD Sass Investors Services, Inc., MD Sass Tax Lien Mgmt., LLC, Sass-Muni IV, LLC, Sass-Muni V, LLC, as well as two Sass executives, coconspirator Vinaya Jessani and Kirk Allison, were sued in a federal RICO action in United States District Court for the Northern District of Illinois, captioned BCS Services, Inc. and Phoenix Indemnity Co. v. Heartwood 88, LLC, et al., 07-1367 (N.D. Ill.) (“BCS Services”). Messrs. Jessani and Allison were Vice Presidents at Sass in New York, and were responsible for Sass’ tax lien purchases nationwide, including in the State of New Jersey. Messrs. Allison, as well as Co-Conspirator Jessani, were terminated from their employment with M.D. Sass as a result of their participation in the conspiracy alleged herein as well as the conspiracy alleged in BCS Services.

 In BCS Services, the plaintiffs alleged that the Sass entities and other persons and entities colluded at annual tax lien auctions in Cook County, Illinois during the period 2002 through 2007. The complaint filed against the defendants alleged, inter alia, violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962 et seq. 89. Specifically, the plaintiffs alleged that the defendants, including the Sass entities, Jessani and Messr. Allison, conspired in an effort to undermine the integrity of the tax lien auction process in Cook County. Sass and the other defendants falsely certified their compliance with Cook County auction requirements, and also created a number of sham entities to bid at auctions in Cook County in order to obtain as many tax liens as possible. Like the Sass entities did here, prior to each auction, Sass would collude with other persons and entities by divvying up the liens to be auctioned and deciding in advance which liens each auction attendee would bid on.

Following a jury trial, the jury found the defendants, including the Sass entities, guilty of violating in RICO in connection with its activities at the Cook County auctions. The Sass entities were ordered to pay the plaintiffs $2.5 million as compensatory damages and approximately $2 million in punitive damages.

VI. FRAUDULENT CONCEALMENT

Defendants and their Co-Conspirators deliberately hid their anticompetitive practices from Plaintiff, engaging in affirmative and fraudulent concealment of their unlawful scheme, conspiracy and course of conduct from Plaintiff.

Defendants and their Co-Conspirators have also engaged in an elaborate series of affirmative acts, including secret bid-rigging, to create the illusion of a competitive market where none existed.

Defendants and their Co-Conspirators failed to disclose their unlawful practices of rigging bids at municipal tax lien auctions in New Jersey in any documents provided to Plaintiff.  Further, Plaintiff would not be among the attendees and/or bidders at public tax lien auctions and thus, would not have observed any collusion among the Defendants and their Co-Conspirators. In addition, Co-Conspirator Mooring denied the existence of the conspiracy, and as recently as 2010, Co-Conspirators Mooring and Xspand were touting their rigorous antitrust training practices. See JPMorgan Unit Subpoenaed.

Plaintiff therefore could not have reasonably discovered the deceptive and anticompetitive practices of Defendants and their Co-Conspirators until the Department of Justice’s investigation into the conspiracy in New Jersey was made public in or around mid-2011.

Defendants and their Co-Conspirators continued to engage in and conceal their fraudulent scheme since the conspiracy began at least as early as 1998 through at least February 2009.

Plaintiff did not and could not have discovered their causes of action until the time at which an investigation was made, thereby tolling any applicable statute of limitations.

In addition, Defendants and their Co-Conspirators engaged in a successful bid rigging conspiracy that they affirmatively concealed by meeting secretly (including through the use of private, in-person communications) to discuss auctions for tax liens throughout the State of New Jersey, and by agreeing among themselves at meeting and in communications not to discuss publicly, or otherwise reveal, the nature and substance of the acts and communications in furtherance of their alleged scheme

As a result of the fraudulent concealment of Defendants and their Co-Conspirators of their bid-rigging scheme, any applicable statute of limitations related to any claims which Plaintiff have brought or could bring have been tolled.

VII. EFFECTS OF THE DEFENDANTS’ UNLAWFUL CONSPIRACY

The conspiracy to rig bids and allocate the market for TSCs auctioned in New Jersey during the conspiracy period harmed Plaintiff. The unlawful scheme resulted in an artificially inflated interest being associated with liens that have been placed on properties owned Plaintiff. This inflated interest: 1) forced Plaintiff to pay artificially inflated interest on delinquent tax obligations; and/or 2) resulted in an artificially inflated interest being associated with the delinquent tax obligation which encumbers the property of Plaintiff which he is legally required to repay in order to maintain ownership over the property.

As a direct and proximate result of Defendants’ and their Co-Conspirators unlawful contract, combination and conspiracy, Plaintiff was 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 Defendants’ and their 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. The total amount of damages is presently undetermined but is in the millions of dollars.

ADDITIONAL CRIMINAL ACTS COMMITTED BY DEL VECCHIO, AMERICAN TAX FUNDING, LLC AND OTHER DEFENDANTS

Robert A. Del Vecchio committed a number of other crimes against Plaintiff: by making an ex-parte fraudulent certification to a Mercer County Clerk in May 2011 (Dr. Stephanatos’ home was located in Passaic County;  to fool the courts and to violate the possessory rights of Dr. Stephanatos, Del Vecchio made the conscious decision to file his fraudulent ex-parte certification in a Mercer County Clerk (not before a Law Division Judge), in violation of state law) that Plaintiff had no possessory interests in his home; he 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 Plaintiff’s home and committed a forceful entry in violation of the New Jersey Forceful Entry statutes, he lied to judge McVeigh that Plaintiff owed $65,000 in taxes without revealing to the Judge McVeigh that Plaintiff was in dispute with Wayne Township due to the over-assessment of his property and that the taxes allegedly “owed” (Plaintiff 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 (such as that Plaintiff had not paid taxes since 1993).

These are the same practices that the Del Vecchios have used throughout his area of fraudulent activities (Townships of Wayne, Borough of Fort Lee, his home town of Hawthorne, New Jersey, and many other municipalities).  For example, on September 28, 2010, Robert Del Vecchio purchased Tax Sale Certificate #2010-04, from the Town of Hawthorn, NJ, charging more than 20 percent interest.  He received more than $4,200 in interest alone when the property owner redeemed the certificate on August 6, 2012.  This interest is in excess of twenty percent.  There are numerous instances like that available and known to the Plaintiff that will be provided to the Court at trial.

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 ( a subsidiary of J.P Morgan Chase).  Del Vecchio reached an agreement with these defendants 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 the 18 percent or greater rate onto the tax lien certificate.  In exchange, Del Vecchio would represent these defendants 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 these conspirators would seize homeowners’ property, enriching themselves and causing many millions in property and business damages to homeowners, including the Plaintiff.

Del Vecchio and American Tax Funding, LLC met in person or communicated through the internet, email, voice mail, fax or telephone communications numerous times during this period to discuss their parallel conduct, to form a strategy for defrauding Plaintiff of his property; 

The purpose of all the communications between the defendants was to facilitate the conspiracy.

As indicated earlier, 15 individuals and companies have already pled guilty to conspiracy charges filed against them by the United States.

SUBSEQUENT CONSPIRATORIAL ACTS OF THE DEFENDANTS TO FORCE DR. STEPHANATOS OUT OF HIS HOME AND PLACE OF BUSINESS

I will include below a summary of the subsequent conspiratory acts of the defendants so that the Court sees the magnitude of the criminal activities of American Tax Funding, Del Vecchio, Weisenbacher, Brian Lynch, and others.

Dr. Stephanatos 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 municipally 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 defendants 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 Plaintiff and no personal liability attaches, these defendants 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 defendants are thoroughly unlawful and also prohibited by the Public Use Clause of the Federal and State Constitutions.  These irregularities also raise issues of Taking of Private Property without Due Process of Law, i.e., a Due Process 14th Amentment violation.

The “private taking” that was conducted by the defendants is prohibited by the federal constitution. The Public Use Clause provides that “one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation is paid.” Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984) (quoting Thompson v. Consol. Gas Corp., 300 U.S. 55, 80 (1937). Because a private taking cannot be constitutional even if compensated, “[a] plaintiff that proves that a government entity has taken its property for a private, not a public, use is entitled to an injunction against the unconstitutional taking, not simply compensation.” Carole Media LLC v. N.J. Transit Corp., 550 F.3d 302, 308 (3d Cir. 2008).

Here, there is no dispute that Plaintiff’s property was taken for a private purpose, as the almost $500,000 was given by corrupt or incompetent Judges such as Margaret McVeigh to ATF and Robert Del Vecchio for few thousand dollars in taxes.  In a recent (July 3, 2014) decision, in Royal Tax Lien Services, LLC v Morodan, Appellate Division, Docket No. A-6030-12T1, July 3, 2014 the New Jersey Appellate decision vacated a 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 determine the applicable law.  Here is a brief summary of the reasoning provided by the Appellate Division in vacating the Chancery judge’s decision.

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 conspirators and the sheriff knew that the above statutes and Appellate case law protect Plaintiff’s right to remain in actual possession of his residence.  In addition, N.J.S.A. 2A:39-7 says that title shall not be an issue since Plaintiff 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.

Dr. Stephanatos wants to inform the Court that New Jersey Law (N.J.S.A. 2A:39-1) cited by the Mercer County Judge Jacobson (the court should note that Dr. Stephanatos’ residence was located in Passaic County, not Mercer County; therefore, Judge Jacobson had no jurisdiction over the property or the person;  all her orders were null and void ab initio), 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., as amended and supplemented, including in accordance with a host of other laws.[1]  The above law specifically applies to Dr. Stephanatos, because Dr. Stephanatos was in possession of this home continuously since 1995 and it was being used as his residence. 

In May 2011, following the fraudulent issuance of a judgment by a Mercer County Court that had no jurisdiction over neither the Plaintiff nor his residence, Dr. Stephanatos became at least a “tenant at sufferance”.[2] Dr. Stephanatos also had significant possessory interest, including the filing of a Suit to Vacate the Tax Deed[3], 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. 

N.J.S.A. 2A:18-61.1a. Findings

The Legislature finds that:

a. Acute State and local shortages of supply and high levels of demand for residential dwellings have motivated removal of blameless tenants in order to directly or indirectly profit from conversion to higher income rental or ownership interest residential use.

b. This has resulted in unfortunate attempts to displace tenants employing pretexts, stratagems or means other than those provided pursuant to the intent of State eviction laws designated to fairly balance and protect rights of tenants and landlords.

c. These devices have circumvented the intent of current State eviction laws by failing to utilize available means to avoid displacement, such as: protected tenancies; rights to purchase; rent affordability protection; full disclosures relevant to eviction challenges; and stays of eviction where relocation is lacking.

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 here that ATF and Robert Del Vechhio did not take possession of the property;  they only wanted to remove Dr. Stephanatos from the property.  They immediately sold the property for $330,000 to a third party.  The Court should note that the conspirators could have sold the property without violently removing Dr. Stephanatos from his home and place of business.

Based on New Jersey and New York law, including the law of all 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 have allowed these defendants to enter Dr. Stephanatos’ property and to remove him from his dwelling in tax lien cases.

The defendants 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 (see Exhibit C for the willful misrepresentation by Robert Del Vecchio that no persons with possessory interests were present at the residence of Dr. Stephanatos) 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. 

These criminals[4] (especially 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 this was not a mortgage foreclosure case and they knew that they had to comply with the Unlawful Entry and Wrongful Entry statutes – but they knowingly decided not to comply with the state law.  This way they managed to fool the sheriff (there is significant evidence, however, that Del Vecchio, D’Agostino and Lucas formed a conspiracy to violate the legal rights of the Plaintiff) to perform an unlawful search and unlawful entry and to forcefully remove Dr. Stephanatos from his lawfully-occupied residence on June 28, 2011.

State statute 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)).

2009 New Jersey Code

TITLE 2A - ADMINISTRATION OF CIVIL AND CRIMINAL JUSTICE

Section 2A:18

2A:18-57.  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 defendants fraudulently and willfully refused to obtain such 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 Plaintiff was in actual peaceful possession continuously since 1995.

On September 30, 2013, Robert U. Del Vecchio pleads guilty to Sherman Act violations from 2000 to 2008.  Multiple felony charges will be filed soon against American Tax Funding, LLC, and others.

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).

PROOF OF THE IMPERMISSIBLE OVER-ASSESSMENT OF DR. STEPHANATOS’ PROPERTY

Plaintiff’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 Plaintiff’s property at $237,000/0.50 = $474,000;  this is the “true value” used by the Assessor in determining Plaintiff’s assessed valuation;

The actual value of Plaintiff’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 Dr. Stephanatos from his home;  thus, the Assessor’s “true value” was forty percent (40%) greater than the actual value of Plaintiff’s property (40%= $474,000/$330,000);  this overvaluation resulted in forty percent (40%) more taxes being levied onto Plaintiff’s property;

In May 1995, the Plaintiff 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 Plaintiff’s property as if his property was valued at $475,000; this is impermissible over assessment because it exceeds the common level ratio by more than 15 percent;  this over assess Since Plaintiff has been writing to the municipality that his property was in fact over assessed, there is a question of fact as to what the municipal defendants knew, when it knew it and what they decided to do about it.  Plaintiff informed the municipality numerous times that the collection that they were attempting was illegal and unconstitutional, but to no avail.  Now, these defendants do not want this Court to adjudicate the issues of over assessment and illegal state school taxes and illegal collection in a summary proceeding, without any discovery, as if they have done nothing wrong, while Plaintiff’s person and property have been damaged irreparably.

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

Further proof of the negligence or deliberate indifference of the municipal defendants is provided by the fact that as of today’s date, the municipal defendants have not revised the assessment of the 687 Indian Road property, despite having proof of the fair market value of the property.

The Plaintiff has clearly provided evidence that his property was over-assessed by impermissible amount and no taxes were in fact due and that the municipality was informed of the Ramapo River flooding and the reduction in the value of his property for many years.

Throughout the 2001-2011 period, the area was subjected to flooding and/or elevated groundwater levels causing damages through water intrusion into Plaintiff’s home.  Exhibit D also provides evidence of the damage by flooding to Plaintiff’s home because the insurance company provided reimbursement for the flooding caused by the sump pump failure.  The sump pumps were operating continuously for several months due to the massive amounts of water entering the subsurface area of his home.

Yet, they decided not to act by reducing the value of the assessed property and they never visited the property to confirm the statements by the Plaintiff; instead, they decided to intentionally violate Plaintiff’s Fourth Amendment rights  (see also N.J. Const. (1947), Art. I, Par. 7) against unreasonable seizures and in the process they caused Plaintiff very significant economic and non-economic losses.  In fact, these defendants claim that the Court shall order no discovery on their obviously egregious conduct.

The grand jurors were not allowed to hear Dr. Stephanatos’ 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.  Dr. Stephanatos initially hired Mr. 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 the prosecutors (Walter Dewey) refused to allow us to present any evidence to the grand jury.  Instead, they committed the above stated violations of state laws and procedures.

APPELLATE DECISIONS ARE IN FAVOR OF DR. STEPHANATOS KEEPING HIS HOME

In a recent (July 3, 2014) decision, in Royal Tax Lien Services, LLC v Morodan, Appellate Division, Docket No. A-6030-12T1, July 3, 2014 the New Jersey Appellate decision vacated a 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 determine the applicable law.  Here is a brief summary of the reasoning provided by the Appellate Division:

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6030-12T1

ROYAL TAX LIEN SERVICES, LLC,

d/b/a CRUSADER LIEN SERVICES,

Plaintiff-Respondent,

v.

JOSEPH MORODAN and SYLVIA MORODAN,

husband and wife,

Defendants-Appellants,

and

STATE OF NEW JERSEY and

THE NEW JERSEY ECONOMIC

DEVELOPMENT AUTHORITY,

Defendants.

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").

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, I had full equity in my home which was valued by the Wayne Township for almost $500,000.  Judge McVeigh failed to perform a fact-finding and rule of law to determine the significant equity I had in my home and that based on the above case law cited by the Appellate Division, weighted heavily on my favor.  The alleged taxes owed (although I disputed the taxes due to overvaluation of the home) were about $20,000.  Judge McVeigh, to justify her actions stated that I did not pay taxes since 1993, which was not true.  I only disputed the over-assessment of my property and I did pay all taxes from 1993 through 2005; then, after my property was damaged by flooding, I paid about 50 percent of the taxes assessed.  In January 2013, Dorothy Kreitz, the Wayne Township Tax Assessor admitted that the properties are overvalued and that no assessment has been performed since 1995.  These statements were made by Dorothy Kreitz in a letter to Dr. Stephanatos.

Thus, as in Royal Tax Lien Services, v. Morodan case, supra, Judge McVeigh failed to perform any fact finding and statement of the law in violation of NJ Court Rule 1:7-4(a), and instead repeated all the falsehoods of the conspirators:  Robert Del Vecchio and American Tax Funding.  Consistent with the decision of the Appellate Division cited above, I submit to this Court that the Appellate Division would have vacated the Chancery Court’s judgment that it issued in May 2011.  But the conspirators acted in speed and fraud and hired the sheriff to force me out of my home without the docketed appeals ever being heard.  Criminal thugs all around.

VIOLATION OF THE FORCEFUL ENTRY AND DETAINER LAWS OF NEW JERSEY BY THE SHERIFF

What is Forcible Entry and Detainer?

A Forcible Entry and Detainer is an action that a landlord, or new property owner can take if the existing occupant refuses to leave after appropriate notice.  This 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.  The term of the period to vacate is dictated by the type of occupancy - whether commercial or residential and whether a tenant or an owner that was foreclosed on.  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 refuse 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 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. Cite: N.J.S.A. 2A: 39-1 and 2; N.J.S.A. 2A:18-57; N.J.S.A 2A:42-10.16; and related statutes.  Source: http://www.lsnjlaw.org/Housing/Landlord-Tenant/Evictions/Pages/Fighting-Evictions.aspx#.ViqUTysuxSM

But even though the law is clear, some landlords still evict tenants illegally, or scare tenants into leaving by threatening to throw them out. The problem is that many times, when frightened tenants call the police, the police will not help. The police say that they can’t help because what the landlord is doing is not listed in the criminal part of the law books as a “disorderly persons offense” or a “crime.” The police often say that they only deal with crimes, even if they know that what the landlord is doing is wrong.

The New Jersey Tenants Organization (NJTO) had been trying for many years to solve this problem. They finally succeeded. On January 12, 2006, the law was changed. (See P.L. 2005, c. 319.) Illegal evictions are now a disorderly persons offense, and the new law is in the criminal part of the law books. The police now know that they must help tenants who are being illegally evicted by their landlords.

Here are some of the things this law does. Cite: N.J.S.A. 2C:33-11.1.

·                     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.

·                     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.

·                     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.

·                     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.

·                     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.

This last part is very important. It makes the job of the police officer who is called by a frightened tenant very easy. 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.

·                     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.

Source: http://www.lsnjlaw.org/Housing/Landlord-Tenant/Evictions/Pages/Fighting-Evictions.aspx#.ViqUTysuxSM

The sheriff admits and 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. 

These sheriff employees also testified that Dr. Stephanatos had stated

“I am not going anywhere”. 

Therefore, it is irrefutable fact that the sheriff knew that he had to obtain a Warrant for Removal but he failed to do so.  The sheriff decided to forcibly evict Dr. Stephanatos in violation of state law, and the motive of the sheriff must be questioned, as the sheriff 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 jury when they said that they were merely trying to deliver eviction papers.  The reason we believe they lied is that 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  cars and several officers went at the dwelling of Dr. Stephanatos not to serve documents only but also to remove him in violation of the New Jersey Forceful Entry and Detainer laws.  So, Lucas continues to lie about his objectives during June 28, 2011.  It is possible that Lucas has been part of the Italian Mafia Tax Lien organized conspiracy against the defendant and many New Jersey homeowners.

The Court should note that these convicted criminals used the mortgage foreclosure procedures that are not applicable to a tax lien foreclosure case.  This is very critical for the Court to understand.  The grand jurors were never informed of these crucial facts.

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

POINT I

THE INDICTMENT MUST BE DISMISSED WITH PREJUDICE BECAUSE THE STATE NEVER INFORMED THE GRAND JURORS THAT THE PASSAIC COUNTY SHERIFF FAILED TO OBTAIN A MANDATORY WARRANT OF REMOVAL; MISLED THE GRAND JURORS REGARDING THE COMMERCIAL INSTRUMENT LOCATED IN DEFENDANT’S PLACE OF BUSINESS; FAILED TO 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 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

I.1 THE INDICTMENT MUST BE DISMISSED WITH PREJUDICE BECAUSE THE STATE: NEVER INFORMED THE GRAND JURORS 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 EMPLOYEES WERE TRESPASSING ON DEFENDANT’S PROPERTY

THE GRAND JURY WOULD HAVE ISSUED A NO BILL, IF THE PROSECUTOR DID NOT COMMIT FRAUD AND BEHAVED OUTRAGEOUSLY AND UNETHICALLY DURING THE GRAND JURY PROCEEDINGS.

In November 2011, Peter Roby admitted before Judge Filko that no warrant for removal was obtained prior to the Passaic County sheriff entered my property and my 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).  These individuals (the Sheriff 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 my door step.  To further mislead the grand jurors, Lucas and D’Agostino testified that they were just delivering process papers, when in reality they were trying to evict Dr. Stephanatos 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 Dr. Stephanatos. 

The conspirators (Robert Del Vecchio, American Tax Funding, et al) and the sheriff employees admit that they performed such 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 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 s/he has the right to apply to the court for a stay of execution of the warrant, along with other notifications.  The question again is:  why did Judge Margaret McVeigh interfered with my possessory rights and encouraged the conspirators to violate the above stated state laws?  The conduct of this Judge is very much in question, requiring an investigation.  I have already suffered $10M in damages and the violation of many state laws, including Appellate Division decisions by Judge McVeigh is the sole reason.

As I stated in other letters to this Court, in a hearing held before Judge Roy McGeady, Municipal Court Presiding Judge, he was shocked to find out that no Warrant for Removal was obtained prior to entering my home.  The indictment must be dismissed with prejudice and all evidence obtained and/or seized must also be excluded and returned to the defendant.

N.J.S.A. 2A:39-7 says that title shall not be an issue since I was in continuous possession of my 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. 

The Passaic County employees and the conspirators who hired them (ATF, Robert Del Vecchio, and others) prevented me from going before a Law Division judge to assert this defense.  That is why they acted with haste and fraud to remove me from my property.  They never stated to the grand jury that my possession of my home was protected by New Jersey statutes and I had the right for a hearing before a Law Division judge.  They took this right away from me.  The conspirators (Robert Del Vecchio and American Tax Funding) received a fraudulent conveyance (a title transfer) and they could have sold the home with me still inside it.  There was no reason at all to force me under the 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 for the Court to understand and enter into the record.  The grand jury was never notified of this law and the indictment must be dismissed for that reason alone.

I respectfully submit to this Court that the prosecutor before the grand jury had the same duty to present the exculpatory evidence and defenses outlined earlier and that, then I was entitled to a no bill under the law.

Our case law has made clear that under certain circumstances there is a prosecutorial 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. Hogan, 144 N.J. at 237. See also Smith, 269 N.J. Super. At 95 (“prosecutor’s obligation to exercise his discretion in good faith encompasses the obligation to give the grand jury evidence in the prosecutor’s possession which clearly exculpates a defendant”).  In doing so, the Supreme Court explained that the state grand jury clause precludes the prosecution 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”. Hogan, 144 N.J. at 236. 

Here, I allege that that the prosecutor fabricated evidence, lied to the grand jurors, refused to provide clearly exculpatory evidence and defenses and refused to allow the defendant and/or his witnesses to testify.  This is outrageous and shameful government conduct of a really grand scale.

I2.  Judge McVeigh Failed to Take into Consideration the Full Equity that Dr. Stephanatos had in his Home;  She Also Violated New Jersey Court Rules by Failing and/or Refusing to Render a Decision in Compliance with Rule 1:7-4(a).

SIGNIFICANT CASE: ROYAL TAX LIEN SERVICES, LLC, D/B/A CRUSADER LIEN SERVICES, V. JOSEPH MORODAN AND SYLVIA MORODAN, DOCKET NO. A-6030-12T1, JULY 3, 2014

In a recent (July 3, 2014) decision, the New Jersey Appellate decision vacated a judgment issued by a Chancery Judge on the basis that the Chancery Judge failed to weigh the significant equity of the homeowner.  Here is a brief summary of the reasoning provided by the Appellate Division.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6030-12T1

ROYAL TAX LIEN SERVICES, LLC,

d/b/a CRUSADER LIEN SERVICES,

Plaintiff-Respondent,

v.

JOSEPH MORODAN and SYLVIA MORODAN,

Husband and wife,

Defendants-Appellants,

and

STATE OF NEW JERSEY and

THE NEW JERSEY ECONOMIC

DEVELOPMENT AUTHORITY,

Defendants.

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").

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, I had full equity in my home which was valued by the Wayne Township for almost $500,000.  Judge McVeigh failed to perform a fact finding and rule of law to determine the significant equity I had in my home and that based on the above case law cited by the Appellate Division, weighted heavily on my favor.  The alleged taxes owed (although I disputed the taxes due to overvaluation of the home) were about $20,000.  Judge McVeigh, to justify her actions stated that I did not pay taxes since 1993, which was not true, another false allegation that worked to defendant’s detriment during the grand jury proceedings.  I only disputed the over-assessment of my property and I did pay all taxes from 1993 through 2005; then, after my property was damaged by the Ramapo River flooding, I paid about 50 percent of the taxes assessed.  In January 2013, Dorothy Kreitz, the Wayne Township Tax Assessor, admitted that the properties are overvalued and that no assessment has been performed since 1995.  These statements were made by Dorothy Kreitz in an e-mail correspondence and it is available to this Court upon request.

Thus, as in Royal Tax Lien Services, v. Morodan case, supra, Judge McVeigh failed to perform any fact finding and instead repeated all the falsehoods of the conspirators:  Robert Del Vecchio and American Tax Funding.  Consistent with the decision of the Appellate Division cited above, I submit that the Chancery Court would have vacated its judgment that it issued in May 2011.  The conspirators however acted in speed and fraud and criminal intend and lied to the Sheriff employees that they can force me out of my home and place of business without any required Warrant for Removal.

Apparently, the Chancery Judge in the Morovan case, supra, had failed to follow the New Jersey Court Rules (failed to perform fact finding and conclusion of law in violation of Court Rule 1:7-4(a) and issued a judgment against a homeowner stripping him of his very substantial equity into his property) and also violated the property rights of homeowners and public policy this state.  The Appellate Division vacated that judgment.

Unfortunately, I did not have the chance to vacate a judgment that was wrongfully issued against me by Judge Margaret McVeigh of Passaic County.  A number of state employees acted in concert with a number of conspirators and stole my property under the gun point on June 28, 2011.  The tragic events of the armed sheriff officers and S.W.A.T. team raiding my home and place of business were widely publicized.

After I filed a complaint with the FBI and the U.S. Attorney’s Office, an investigation revealed a massive conspiracy that involves state employees.  We now know that the conspirators violently took my homestead property by violating the antitrust laws, by violating the tax sale laws, by violating to forceful entry and detainer laws, and many other offences, including the intentional overvaluation of Plaintiff’s property so that they collect more taxes while they knew that flooding had reduced my homestead property value.  We also now know that the Chancery Judge Margaret McVeigh violated the Court Rules and New Jersey law because she failed and/or refused to consider my full equity into my home and because she never conducted a bench trial to determine the facts consistent with Rule 1:7-4(a).  Another disgrace for the New Jersey legal system.

There was never any bench trial or other fact finding performed and the Chancery Judge Margaret McVeigh of New Jersey never stated the facts or the rule of law.  She simply issued a judgment against me based on the statements of the conspirators Robert Del Vecchio and American Tax Funding (ATF).  The New Jersey Court Rule, that the incompetent or reckless Judge McVeigh should have followed, specifically states:

1:7-4. Findings by the Court in Non-jury Trials and on Motions

(a) Required Findings. The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right, and also as required by R. 3:29 The court shall thereupon enter or direct the entry of the appropriate judgment.

The Appellate Division in the case cited below stated the following:  “It need not be reiterated that the judge considering the matter must render a decision in compliance with Rule 1:7-4(a). “ ROYAL TAX LIEN SERVICES, LLC, d/b/a CRUSADER LIEN SERVICES, v. JOSEPH MORODAN and SYLVIA MORODAN, DOCKET NO. A-6030-12T1, July 3, 2014.  In my case, the Chancery Judge Margaret McVeigh never conducted any finding of facts and never stated any conclusion of law in her actions without a jury.  Her decisions must be vacated on that ground as well.

Therefore, based on the Appellate Division ruling on an identical case and based on failure to obey many NJ Court Rules, I believe I have raised some very substantial Procedural and Substantive Due Process issues that in turn raise entrapment, duress, outrageous government conduct issues/defenses.

FACTS REGARDING THE JUDICIAL CONDUCT OF JUDGE MCVEIGH

1.            My residential property had been damaged by flooding along the Ramapo River and had lost a significant portion of its value.  The Wayne Township Assessor, Dorothy Kreitz, however, despite having knowledge of the flooding in Dr. Stephanatos’ property, assessed it as if his property was valued at $475,000 while the property was sold (after the seizure) by American Tax Funding at $330,000 – this sale value is proof of the fair market value of the residence and this is the value that the property should have been valued by the Wayne Township Tax Assessor – but the assessor has been assessing it for almost 40 percent more, at $475,000.  This is almost 40 percent over-assessment of Dr. Stephanatos’ residence and it is an impermissible over-assessment because it exceeds the common level ratio by more than 15 percent; this over assessment was void ab initio according to established New Jersey law. 

2.            The New Jersey Court In Village of Ridgefield Park et al., v. Bergen County Board of Taxation et al., 62 N.J.Super. 133, 162 A.2d 132 said that any assessment levied in violation of the constitutional mandate of uniformity is absolutely void Ab initio.  Thus, the taxes were void, as a matter of New Jersey law.  Therefore, all subsequent acts of the municipal, antitrust and county conspirators were illegal, as a matter of law.

3.            In a 2013 letter to concerned citizens, Dorothy Kreitz, Wayne Township Tax Assessor, stated that “we have not done a full revaluation since 1992”.  She also stated that “As you are well aware, the economy had dropped drastically in the last 4 or five years decreasing the value of real estate properties.”  Based on the above admissions by Dorothy Kreitz, Dr. Stephanatos’ claims that his property was over-assessed are well founded.  Therefore, the taxes levied onto Dr. Stephanatos’ property were illegal and Dr. Stephanatos did not owe any money to the municipality.  All the subsequent actions of the conspirators were therefore illegal and they are subject to the damages they caused the Dr. Stephanatos that they amount to several million dollars.  Dr. Stephanatos had requested a leave of the Court of Chancery 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”.  Then, Judge McVeigh relied on the assertions of the conspirators and stated that all issues had been adjudicated, that Dr. Stephanatos had not paid taxes since 1993 (another fraud on the grand juroros) and refused to perform any fact finding or any hearing or any trial to confirm the “facts” upon which the conspirators were relying.  This way, the conspirators charged Dr. Stephanatos with this impermissible over-assessment AND IN ADDITION, THEY ALSO CHARGED HIM WITH 18 PERCENT INTEREST RATE ON THESE OVER-ASSESSMENTS AND ADDITIONAL 6 PERCENT PENALTIES.   Thus, a small tax based on the illegal over-assessment of $20,000 or so end up being $49,000 to 65,000 or so.

4.            By knowingly including an improper (excessive and/or illegal) amount(s) as a charge asserted in a proof of claim, the lien holder must be found to have violated section N.J.S.A. 54:5-63.1 of the New Jersey statute on lien enforcement, and the Appellate Court must respond by disallowing the claim, avoiding the lien altogether and restoring Dr. Stephanatos to his residence.  Under the Fraudulent Transfer Act, a transferee is not protected and Dr. Stephanatos should be restored to his residence with the same speed that McVeigh, the sheriff employees and the conspirators  took it away from him.

5.            Here, I had full equity in my home which was valued by the Wayne Township for almost $500,000.  Judge McVeigh failed to perform a fact finding and rule of law to determine the significant equity I had in my home and that based on the above case law cited by the Appellate Division, weighted heavily on my favor.  The alleged taxes owed (although I disputed the taxes due to overvaluation of the home) were about $20,000.  Judge McVeigh, to justify her actions stated that I did not pay taxes since 1993, which was not true.  I only disputed the over-assessment of my property and I did pay all taxes from 1993 through 2005; then, after my property was damaged by flooding, I paid about 50 percent of the taxes assessed.  In January 2013, Dorothy Kreitz, the Wayne Township Tax Assessor admitted that the properties are overvalued and that no assessment has been performed since 1995.  These statements were made by Dorothy Kreitz in a letter to Dr. Stephanatos.

6.            Thus, as in Royal Tax Lien Services, v. Morodan case, supra, Judge McVeigh failed to perform any fact finding and statement of the law in violation of NJ Court Rule 1:7-4(a), and instead repeated all the falsehoods of the conspirators:  Robert Del Vecchio and American Tax Funding.  Consistent with the decision of the Appellate Division cited above, I requested that the Chancery Court vacates its judgment that it issued in May 2011.  However, after issuing a wrongful and void judgment against me for taxes that I did not owe, Judge McVeigh inappropriately interfered with the possessory interest I had in my home and place of business and encouraged the conspirators to force me out of my home and place of business causing over $10 million of dollars in damages.

7.            The question I have been asking is why this Chancery Judge interfered with my legal rights and also refused to follow the court rules (1:7-4(a)) and refused to conduct a factual hearing and refused to uphold my very significant equity rights.

8.            The conspirators and the sheriff employees admit that they performed such 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 by a Mercer County Clerk, who had no jurisdiction over the property, after the fraudulent certification by defendant Del Vecchio that no persons with possessory interests were present at the residence.

9.            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 s/he has the right to apply to the court for a stay of execution of the warrant, along with other notifications.  The question again is:  why did Judge Margaret McVeigh interfered with my possessory rights and encouraged the conspirators to violate the above stated state laws?  The conduct of this Judge is very much in question, requiring an investigation.  I have already suffered $10M in damages and the violation of many state laws, including Appellate Division decisions by McVeigh is the sole reason.

THE JUDGMENT WOULD HAVE BEEN VACATED FOR VIOLATION OF COURT RULE 1:7-4(A) BY THE CHANCERY COURT

Judge McVeigh never conducted a bench trial to determine the facts consistent with Rule 1:7-4(a).  This Court Rule specifically states:

1:7-4. Findings by the Court in Non-jury Trials and on Motions

·         (a) Required Findings. The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right, and also as required by R. 3:29 The court shall thereupon enter or direct the entry of the appropriate judgment.

The Appellate Division in the case cited above stated the following:  “It need not be reiterated that the judge considering the matter must render a decision in compliance with Rule 1:7-4(a). “ ROYAL TAX LIEN SERVICES, LLC, d/b/a CRUSADER LIEN SERVICES, v. JOSEPH MORODAN and SYLVIA MORODAN, DOCKET NO. A-6030-12T1, July 3, 2014.  Here, Judge McVeigh never conducted any finding of facts and never stated any conclusion of law in her actions without a jury.  Her decisions must be vacated on that ground as well.  She simply relied on the fraudulent statements of the conspirators and Wayne Township lawyers and allowed the issuance of a judgment against me without performing a bench trial or performing any other credible fact finding.  As a result of her errors and omissions in performing her judicial duties, I have suffered over $10 million dollar in damages.  I respectfully submit that an investigation is in order.

The New Jersey criminal statutes allow a person to carry a gun in his place of business or premises.

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 2008 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, Dr. Stephanatos has the federally-protected fundamental right to keep and bear arms inside his home for the protection of himself, his family and his property.

FALSE IN ONE - FALSE IN ALL

A TRIAL JUDGE, IN (HIS/HER) DISCRETION, MAY GIVE THIS CHARGE IN ANY SITUATION IN WHICH (HE/SHE) REASONABLY BELIEVES A JURY MAY FIND A BASIS FOR ITS APPLICATION - SEE STATE V. ERNST, 32 N.J. 567 (1960)

The following model jury instruction is available to this Court.

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). The same charge applies to the civil side. See Lawnton v. Virginia Stevedoring Co., 50 N.J. Super. 564, 581 (App. Div. 1958), Hargrave v. Stockloss, 127 N.J.L. 262, 266 (E.&A. 1941), Coleman v. Public Service Coordinated Transport, 120 N.J.L. 384, 387 (Sup. Ct. 1938). For a full discussion of the use and application of the maxim, see, Vol. 3A Wigmore on Evidence (1970) Sec. 1008 et. seq.

Considering that Lucas and D’Agostino have lied about the events of June 28, 2011 (see the detailed analysis under POINT VII), and have presented numerous conflicting versions and revisions without even having been cross-examined by the defense, we believe it is prudent to disregard the testimony of these two individuals and to dismiss the indictment with prejudice to avoid further humiliation of the State’s witnesses and/or case. 

It would be preferable though to bring in Lucas and D’Agostino to be cross-examined for potential perjury and civil right violation charges.

The entire Indictment must be dismissed with prejudice based on the numerous lies and fabrications and omissions of defenses and other exculpatory evidence by the State during the grand jury proceedings.

POINT II

THE INDICTMENT MUST BE DISMISSED WITH PREJUDICE BECAUSE THE FOUR (4) PLUS YEAR CASE DELAY DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONALLY-GUARANTEED RIGHT TO A SPEEDY TRIAL CAUSING HIM SEVERE ECONOMIC AND NON-ECONOMIC HARDSHIP, LOSS OF EMPLOYMENT AND PROFESSIONAL LICENSES, AND OTHER HARDSHIPS.  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), STATE V. JONATHAN E. DOWNS, DOCKET NO. A-0, N.J. SUPERIOR COURT, APPELLATE DIVISION, FEBRUARY 14, 2014

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) (see Exhibit A for the case syllabus), 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).

The Length of the Delay

“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 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 (4.5) year delay in proceeding with the case since the June 28, 2011 assault charges.  Considering that we are filing a significant number of substantive motions and we are asking for significant amount of discovery, it may very well several more years before this case reaches trial.  These enormous delays are presumptively prejudicial, considering that the defendant is a licensed expert witness whose reputation has been tarnished by the charges and cannot earn a living.

The Reason for the Delay

“Once a defendant asserts a violation of his right to a speedy trial, the government is required to identify the reason for the delay.” State v. Cahill, 213 N.J. at 266.

A deliberate delay is weighted heavily for the defense. Id. The Court explained however that “[a] more neutral reason, however, such as negligence or a heavy caseload, will also be weighed against the government … because it is the government’s ultimate responsibility to prosecute cases in a timely fashion.  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, this Court has one of the lightest caseloads that we have seen.  Thus, heavy caseload is not the reason for the delays.  This Court took two years to issue a ruling on a simple motion to change venue; this inexplicable delay is highly prejudicial considering that the defendant has been asking the Court to proceed with the case because of the economic and non-economic hardships he is facing.  To no avail.  The delays of this Court must be charged to the State.  State v. Farrell, 320 N.J. Super. at 450-451.  Thus, there is not much excuse for the delayed adjudication of the case.

Furthermore, the defendant has been asking for discovery of some very important evidentiary information that will assist in his full exoneration of most or all the charges.  Specifically, the defendant has been asking for copies of video recordings from any cameras on the sheriff vehicles that arrived at the defendant’s home on June 28, 2011.  These videotapes may show that Lucas and D’Agostino have been lying all this time regarding their location, and specifically Lucas’ 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, 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 committed perjury and prepared false reports).  Since the bushes have been removed, the Defendant will rely on photos he took prior to the incident on June 28, 2011 to demonstrate to this Court and/or the grand jurors the false allegations of Lucas and D’Agostino.

In addition, defendant has been asking for copies of any audiotapes of the conversations between the sheriff officers at the property on June 28, 2011 and other officers not located at the property at the time or conversations with any other sheriff or Passaic County personnel regarding the events of that date.  These audiotapes may show that Lucas committed perjury and 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.   As the Court may realize, this is absolutely crucial evidence that the sheriff has had plenty of time to completely destroy.

Finally, any incident reconstruction will also be beneficial for the defense of the charges.  This was a major event that made headlines in the printed, online and broadcast media.  Thus, it is safe to assume that such reconstruction investigation is available from the State.  Defendant hereby requests that such incident reconstruction be made available to the defense.

Assertion of Right

In Cahill, the Court said, “[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. The Court explained, “[i]t is the State’s obligation to prosecute and do so in a manner consistent with defendant’s right to a speedy trial … Assertion of the right … is not dispositive of the merits of the claim and is certainly not a pre-condition to the invocation of a defendant’s right to a speedy trial. Id. at 274.

Here, the defendant has been asserting his right for a speedy trial from the very beginning of the case four and half years ago, considering the clearly exculpatory evidence that shows that he never acted the way Lucas and D’Agostino claimed he did.  I want to remind this Court that more than a year ago (April 2014) I 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 addition to that correspondence, the defendant has been asking Mr. Feinstein on a weekly basis to move forward with the case on a speedy basis and to inform the Court that the defendant wanted to exercise his speedy trial rights.

Therefore, this balancing factor weighs in defendant’s favor.

Prejudice

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.

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, I have suffered very significant losses of employment, as employers performed background checks and refused to hire me, even after they made employment offers.  In addition, I lost several professional licenses due to the outstanding charges, leading to further economic losses.  I also have 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 me the application to sit for exams, causing me to lose very significant business and/or employment opportunities.  The net result of these prolonged delays is multi-million dollar economic damages.

Being a professional expert engineer, I have also suffered reputation loss that essentially destroyed my carrier that I worked for many-many years (several decades) to build.  These unresolved (not to mention fraudulent) charges have destroyed me economically and reputationaly.

Due to these losses and the continued and unresolved prosecution I suffer from anxiety, humiliation and withdrawal from social events.  Both my personal and professional life is essentially destroyed by the failed resolution of the pending wrongful charges.

As was also explained under the section “The Reason for the Delay”, the long delay has already prejudiced the defendant because the landscaping at the subject dwelling where Lucas was peering through the side window has been changed through the removal of the yews and rhododendrons.  Furthermore, defendant is prejudiced because discovery has not even started yet and he is concerned that along with the bushes, the sheriff may have destroyed videotaped and audiotaped evidence that is exculpatory to the defendant.  These are some very serious prejudices that hamper the defendant’s defense and they are the sole creation of the state.

I will briefly report below a state case where the charges were dismissed because the state failed to provide discovery to the defendant for 531 days (about 1.45 years).  Here, we did not have any discovery despite the passing of 4.5 years since the tragic events of June 28, 2011.

STATE V. JONATHAN E. DOWNS, DOCKET NO. A-0, N.J. SUPERIOR COURT, APPELLATE DIVISION, FEBRUARY 14, 2014

A NJ appeals court recently dismissed a DWI charge for the State's failure to provide discovery to the defendant's attorney for 531 days. The court reasoned that the defendant's speedy trial rights were violated even though the defense attorney wasn't "energetic in his demands" for discovery.

531 Days to Turn Over Discovery Violates a NJ DUI Defendant's Speedy Trial Rights

The New Jersey courts have ruled twice in the last year that DWI defendants are entitled to the same speedy trial rights that are extended to criminal defendants. Recently in State v. Downs, an unpublished Appellate Division decision, the court ruled that the prosecution's failure to provide defense counsel with DWI discovery for 531 days violated the defendant's speedy trial rights pursuant to Barker v. Wingo, 407 U.S. 514 (1972), concluding that the defendant's rights were prejudiced by the State's delay.

The Downs decision echoes the 2013 case of State v. Cahill, 213 N.J. 253 (2013), where the court dismissed a NJ DWI charge after 16 months had passed between the date the case was remanded to the municipal court and a trial date was set. Downs essentially takes the Cahill case a step further inasmuch as the courts are more or less using a 1 year rule for a New Jersey drunk driving case to go to trial. If that trial date is delayed for the State's inaction[s], a speedy trial motion to dismiss may be a viable outcome for a defendant. What is notable in the Downs and Cahill decisions is that both of those cases were transferred to the superior court for review and then later remanded to the appropriate municipal court for handling. Cases which are transferred from one court to another can face delays, missing records, and other problems.

NJ Defense Attorney is Not Obligated to Continually Demand DWI Discovery from Prosecutor

The Downs case also touches on an issue which is constantly debated in New Jersey DWI defenses. What is the obligation of the defendant's lawyer to obtain all discovery from the prosecutor? The answer is complex. Many courts have their own methods regarding DUI discovery. Some prefer the request goes directly to the police records department. Some prosecutors prefer demands are made to their private law offices. And many New Jersey driving under the influence cases with blood or urine tests involve multiple law enforcement agencies. It appears that the defense in Downs made a timely written discovery request and a follow up phone call as well. The court said that was enough effort and that there is no need for defendants to "chase down" their DUI discovery.

Here, the defendant has been asking his lawyers (first Mr. Carl Herman and later Mr. Miles Feinstein) to proceed with the case on a speedy trial basis and to ask for the discovery of the audiotapes and video evidence that will help further exonerate him of all charges and to prove that Lucas and D’Agostino fabricated their stories and committed perjury during the grand jury proceedings.  His efforts to move on with the case is well documented in this Court, only to be threatened with revocation of his bail.  If this denial of speedy trial motion fails, then defendant respectfully submits to this Court that he has an Ineffective Assistance of Counsel claim, if he discovers that the audiotapes and/or videotapes have been destroyed or conveniently lost by the sheriff, the same way the bushes, where Lucas claims he fell, have already been removed.

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 Stephanatos in which the defendant legally possessed all of the firearms.  Even more significantly, one of the key defenses in Stephanatos 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 Corporal Ron Lucas and Officer Victor 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).

This charge here has three elements, with one element requiring the defendant to know that the other party is a law enforcement officer.  Here, the sheriff process servers testified that they never rang the doorbell, they never announced themselves.  They only stated that they were wearing uniforms, which means that a party must know that these individuals are acting as law enforcement officers; however, sheriffs do employ process servers who are not acting as law enforcement officers.  These servers are distinguished by their light blue uniforms, while law enforcement officers typically wear dark blue or black uniforms.  There are also private security personnel who also wear uniforms similar to the ones worn by law enforcement or process servers.  The state has not proved beyond a reasonable doubt that the defendant knew that Lucas and D’Agostino were in fact sheriff officers who were acting in their duties as law enforcement officers during the alleged incident.

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.”

It is important to note here that the defendant’s home is in a wooded, remote and 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.  There is another home to the west (about 100 feet away) where the owners were at work.  Thus, this charge is also fraudulent, as less than five people and less than five habitations were within 100 feet from defendant’s home.

 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 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.

These are also fraudulent charges, as at no time did anybody told the defendant that he is under arrest or that he charged with a crime.  He was on phone with Officer Celix for quite some time and he never informed the defendant that he was under arrest or anything to that effect.

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 Stephanatos 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 told him that he is 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.”  As has been reported earlier, 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 on injuring anyone, as the prosecutors 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 prosecutors.  However, the prosecutors refused to provide such exculpatory evidence to the grand jurors in order to secure a bill and also they wanted to punish the defendant by filing/securing wrong charges to obtain hundreds of thousands of bail money and/or to incarcerate the defendant.

To reiterate, Count 1 requires an unlawful purpose of the firearm (protecting one’s home and himself from intruders is not unlawful); Counts 2 and 3 require “knowingly” pointing the firearm under extreme indifference circumstances towards individuals who are in fact performing the duties of a law enforcement officer (protecting one’s home from intruders is guaranteed by state law; the process servers were not acting as police officers); Count 4 requires “recklessly” creating a risk of widespread injury or damage by “purposely or knowingly” barricading himself (here there were fewer than 5 people and fewer than 2 homes affected, if any); and Count 5 requires the “purpose” to prevent or obstruct (at no time during the 5-hour ordeal did the state informed the defendant that he committed a crime).

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

·                     I only wanted nobody to enter my home and my property, as I am authorized to do by New Jersey Law.  Only police officers armed with Warrants are allowed to enter my property and move me out;  however, the sheriff employees Lucas and D’Agostino did not have Warrants for Removal;

·                     I never threatened anyone;  I only stated that there will be my own bloodshed because of the aggressive and unlawful actions of the sheriff employees.

·                     I never pointed any gun at nobody;

·                     Officer Celix never told me that I am under arrest;

·                     He never told me that I have committed any offence;

·                     He never said that they have a search or arrest warrant;

·                     The only neighbor was a woman located at least 50 feet away; the home is in an isolated area of Wayne;  in fact, the State witnesses told the grand jurors that they evacuated just one neighbor.

·                     While on the phone, I told the sheriff officer Celix not to destroy the business equipment and that I was shocked that they thought it was bomb.  In October, the assistant prosecutor, Peter Roby admitted in open court before the Hon. Judge Filko that the instrument was not a bomb and that Dr. Stephanatos had placed it there to be picked up by a vendor, Pines Environmental, Inc.  Later, Lucas and D’Agostino changed their story and claimed that they thought it was a “metal ammunition box”, also a false assertion.

In addition to numerous fraudulent and misleading misinformation fed to the grand jurors by the State, 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 should have been given to the grand jurors:

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.

In Stephanatos, if the grand jurors found that the defendant acted “knowingly,” “recklessly,” or “negligently” as opposed to “purposely” as to Counts 1 and 5, then the grand jurors 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 jurors.  This is particularly egregious when the state of mind of the defendant is a key issue as to each charge.

As the Court can also see, we have major problems with the State evidence that supports each and every element of the alleged offenses.  The totality of the circumstance show that the sheriff employees were either hallucinating or were corrupt and fabricated most of the evidence and made unsupported inferences.  In other words, we believe the State’s case is a bunch of hooey, a bunch of filthy smelling hooey.

THE RELEVANT LAW REGARDING GRAND JURIES

The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”  The purpose of this amendment is to limit the jeopardy of a person to offenses charged by a group of his fellow citizens acting independently of either a prosecutor or a judge. Stirone v. United States, 361

U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).

The right to indictment for a criminal offense is guaranteed by the New Jersey Constitution, article I, section 8, which guarantees that “[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury.”  The grand jury has always occupied a high place as an instrument of justice in our criminal jurisprudence. State v. DelFino, 100 N.J. 154, 164 (1985).  It is for the grand jury to determine whether there is a prima facie case that a crime has been committed and the accused has committed it. State v. Hogan, 144 N.J. 216, 227 (1996).  It is the duty of the grand jury to bring to trial individuals who are probably guilty and to clear the innocent of baseless charges. In re Grand Jury Appearance Request by Loigman, 183 N.J. 133, 138 (2005) (citations omitted).  The grand jury “‘stand[s] between the defendant and the power of the State, protecting the defendant from unfounded prosecutions.’” Ibid.  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).

Although the Fifth Amendment’s guarantee of indictment by grand jury has not been incorporated into the Fourteenth Amendment so as to be binding on the states (Alexander v. Louisiana, 405 U.S. 625 (1972), comparable, if not even broader protection is written into the organic law of New Jersey. See, N.J. Const. of 1947, Art. I, Para. 8.  Given the virtually coterminous statements of the constitutional right to indictment by grand jury, the Courts of New Jersey “... have interpreted our constitutional guarantee of indictment by a grand jury, N.J.Const. of 1947, Art. I, Para. 8, in light of federal precedent.” State v. Murphy, 110 N.J. 20, 29 (1988) (New Jersey Constitution guarantees the right of a criminal defendant “to have his case considered by an impartial and unbiased grand jury”).  The grand jury performs two distinct roles—-one is to investigate and present for trial persons suspected of wrongdoing, while “At the same time–and equally important–it functions as a shield, standing between the accuser and the accused, protecting the individual citizen against oppressive and unfounded government prosecution. See United States v. Calandra, 414 U.S. 338, 342-43, 94 S.Ct. 613, 617-618, 38 L.Ed.2d 561 (1974); Branzburg v. Hayes, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 2659-2660, 33 L.Ed. 626 (1972). 

Our New Jersey Supreme Court has consistently recognized the dual function of the grand jury—charging the guilty but protecting the innocent from unfounded prosecution. State v. Hogan, supra, 144 N.J. at 228.

The Hogan Court remarked in the opinion that 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. See Murphy, supra, 110 N.J. at 35, 538 A.2d 1235 (recognizing general reluctance of courts to dismiss indictments, but noting that indictment may be dismissed if alleged misconduct infringes on grand jury’s decision-making function); DelFino, supra, 100 N.J. at 164-65, 495 A.2d 60 (criticizing grand jurors for voting to indict without having been present at all grand jury sessions, and stating that grand jurors who vote to indict must be informed of evidence presented at each session); see also Hart, supra, 139 N.J. Super. At 568-69, 354 A.2d 679 (dismissing indictment because prosecutor improperly encroached on independence of grand jury by telling some jurors that the initial vote not to indict was wrong). Id. at 229.

Thus, 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).

Our courts have not been shy about dismissing indictments where the grand jury process has been fundamentally unfair or the grand jury process has been tainted.  In State v. Riley, supra, the Appellate Division reversed the trial judge and remanded to the trial court for an Order dismissing the indictment because the prosecutor improperly presented defendant’s oral statement to the grand jury after he had been promised the statement would not be used “in court.” 

The Court reversed the trial court and ordered a dismissal “on principles of fundamental fairness.” Riley, 242 N.J. Super. At 118.  The opinion reasoned that due process requires the government to fulfill its promise when the government relies on it to its detriment.  The opinion of Judge Stein cautioned:

Due process requires that the government fulfill its promise when a defendant relies to his detriment on that promise and cooperates with the government.  Once defendant’s good faith compliance is established, the State must fulfill its part of the bargain and its failure to do so constitutes a per se bad faith prosecution. Id.; Cf. Acosta v. Turner, 666 F.1d 949, 953 (5th Cir. 1982).

The agreement between defendant and the prosecutor provided that neither defendant’s statement nor any fruits derived from that statement would be used against him in court. The Warren County Prosecutor’s Office acknowledged that they had no leads in the case prior to defendant’s statement.  Following defendant’s statement, law enforcement officials launched an investigation which resulted in information leading to the arrests and subsequent indictments of the participants.  The prosecutor then presented defendant’s statement as well as the fruits of that statement to the grand jury.

We reject the motion judge’s strict construction of the phrase “in court.”  Defendant and his attorney had every reason to believe that defendant’s statement and the fruits thereof would not be used in any legal proceeding which could lead him into a courtroom. Clossom v. State, supra, 784 P.2d at 666 (grand jury proceeding was “court proceeding” within meaning of immunity agreement; defendant’s failure to testify before the grand jury violated agreement).

The indictment upon which defendant’s plea was based was obtained in violation of the agreement.

An indictment should be dismissed on prosecutorial misconduct grounds where the State’s misconduct “is extreme and clearly infringes upon the [grand] jury decision-making function,” such that it “substantially influenced the grand jury’s decision to indict,” or raises “grave doubt that the determination ultimately reached was arrived at fairly and impartially.” State v. Hogan, 336 N.J. Super. 319, 339-40 (App. Div. 2001).  

In the Appellate Division case of State v. Triestman, 416 N.J. Super. 195 (App. Div. 2010), the Court found that instructions to a grand jury were sufficiently misleading as to warrant a reversal of defendant’s convictions and dismissal of the indictment.  In that case, the defendant was charged with fourth-degree criminal sexual contact for allegedly touching the breast of a co-worker and attempting to kiss her.  At the grand jury, the prosecutor charged as follows: “b. An actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in Section 2C:14-2c through (4).” Id. at 206.  In dismissing the indictment, the Appellate Division stated:

Needless to say, even had the prosecutor presented the case against defendant on September 23, 2008, the grand jury could not have applied the law to the facts.  First, the prosecutor in the above-quoted passage should have referenced “Section 2C:14-2c(1) through 4”, not “Section 2C:14-2c through (4).”  Second, the prosecutor never indicated that she was charging the jury on N.J.S.A. 2C:14-2c at all; she merely informed the jury that she was charging them on “sexual assault.”  Thus, although the jury knew it had been charged on offenses under N.J.S.A. 2C:14-2, it had no idea which portion of that charge contained the circumstances that would establish criminal sexual contact under N.J.S.A. 2C:14-3. Id. at 206-207.

In Stephanatos, the most 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. 

In the case at bar the indictment must be dismissed with prejudice due to the outrageous government conduct recounted above and in this brief, infra.

POINT IV

THE ENTIRE INDICTMENT (COUNTS 1, 2, 3, 4, AND 5) 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 JURORS WERE 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 jurors were never advised that a defense to Counts 1 through 3 is that the defendant was motivated by an honestly held but unreasonable belief.

It is the defendant Stephanatos’s position that New Jersey’s Anti-Eviction Act (N.J.S.A. 2A:18-61.1 et seq.) and New Jersey’s Foreclosure Fairness Act (N.J.S.A. 2A:50-69 thru 72) were violated by the State’s actions in this case.  Despite the luck of any fact finding by Judge McVeigh (Judge McVeigh never conducted a bench trial to determine the facts consistent with Rule 1:7-4(a)), on May 13, 2011, the Mercer County Honorable Mary C. Jacobson, P.J.Ch., entered a final judgment against defendant in favor of American Tax Funding, LLC (“ATFH”). (Final Judgment annexed at Da44-46).  This final judgment contains the language “This judgment shall not affect the rights of any person protected by the New Jersey Tenant Anti-Eviction Act (N.J.S.A, 2A:18-61.1 et seq.)” (Da45).  The significance of this clause is discussed in this brief, infra.  This Court should understand that in every property, there are two titles: a possessory title and a legal (ownership) title.  The above judgment (fraudulent or not), only covers the ownership and not possession of a property.  The possession of a property must be decided under the provisions of the Unlawful Entry and Detainer state law (see N.J.S.A. 2A:18-57).  This is very crucial for the Court to understand.

Robert A. Del Vecchio is the attorney for the conspirator ATFH, and he submitted a self-Certification (on an ex-parte basis) (filed May 13, 2011), with the Clerk of Mercer County, stating, in part, that:

The aforementioned person is not protected by the provision of the Anti-Eviction Act (the “Act”), as enunciated in the New Jersey Supreme Court Case of Chase Manhattan Bank v. Josephson, since that Act applies to tenants and this defendant is the prior owner of the property.  His ownership rights were foreclosed upon in the above-entitled action. (Da48).

This was an illegal and fraudulent ex-parte certification by the co-conspirator Robert Del Vecchio, on behalf of his client, ATF or ATFH.  This Court should note that the Chase Manhattan Bank v. Josephson case refers to mortgage foreclosures and not tax lien foreclosures, as the Appellate Division in Royal Tax Lien Services, LLC v Morodan has already ruled that homeowners who hold significant equity into their properties should not lose their home:

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").  Royal Tax Lien Services, LLC v Morodan, Appellate Division, Docket No. A-6030-12T1, July 3, 2014.

Mortgage foreclosure cases are lengthy and include trials and proofs and briefs, i.e., the mortgagee had many opportunities to adjudicate the issues.  There is always a fact-finding and a legal analysis.  So, due to the extensive fact-finding and legal analysis, in a mortgage foreclosure case, the defendant loses the title.  He also loses the possession, upon a self-certification by the bank’s lawyer.   Here, however, this case was not a mortgage foreclosure, as Dr. Stephanatos fully owned the almost $500,000-valued home.  There has been no fact-finding and no trial and no hearing to that effect, absolutely nothing.  This was pretty much an ex-parte judgment where Judge McVeigh relied on the certifications of co-conspirator Robert Del Vecchio and ATF.  To justify her actions, Judge McVeigh also falsely claimed that the defendant had not paid taxes since 1993- a massively fraudulent assertion that indicates the prejudice that the defendant faced.  Absolutely shocking behavior.

After the fraudulent self-certification of the co-conspirator Robert Del Vecchio, Esq., an Eviction Notice (dated May 20, 2011) was sent to the defendant from Richard H. Berdnik, the Passaic County Sheriff.  (Da47).  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 not 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 s/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, Dr. Stephanatos was left assured that the eviction will not move forward and he will be allowed to stay at the property while appeals are pending. 

In addition to these two appeals, in June 2011, Dr. Stephanatos had also filed a suit to vacate the tax deed (Passaic County, Law Division L-2973-11).  Dr. Stephanatos even sent a letter to the judges, to the co-conspirators Robert Del Vecchio, Matthew Marini and the sheriff that appeals are 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 are tenants on the property. (Da50-51) and that Dr. Stephanatos had no possessory rights.  As this Court hopefully understands, no possessory rights were ever determined in this case.

The defendant’s legal rights under the Anti-Eviction Act were violated with the procurement from the Clerk of Mercer County of an ex-parte writ of possession through the misrepresentations of Del Vecchio that there were no tenants present in the premises (and that the defendant “is not protected by the provisions of the Anti-Eviction Act.” (Da48).  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 s/he has the right to apply to the court for a stay of execution of the warrant, along with other notifications.  Nothing like that happened here, and all these long-standing New Jersey laws that are meant to protect tenants were not applied by the conspirators and the sheriff.

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 Dr. Stephanatos’ residence.  Yet she did, anyway.  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 absolutely illegal.

As explained infra, the defendant was entitled to have the grand jurors 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 Williams Court 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 (emphasis in original).  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 Stephanatos 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.

Our case law has made clear that under certain circumstances there is a prosecutorial duty to present exculpatory evidence to a grand jury.  In State v. Gaughran, supra, 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, supra, our Supreme Court held that there is a prosecutorial duty to present exculpatory evidence under circumstances where it directly negates guilt. Hogan, 144 N.J. at 237.

Consistent with that rationale that an indictment should be dismissed when vital exculpatory evidence is kept from the grand jury are the cases which have held that an indictment must be dismissed if a prosecutor encroaches on the independence or integrity of the grand jury. See State v. Hart, 139 N.J. Super. 565 (App. Div. 1976) (an indictment was dismissed because an assistant prosecutor improperly voiced his opinion to the grand jury that their initial vote not to indict was wrong and the grand jury subsequently chose to indict); see also State v. Butterfoss, 234 N.J. Super. 230 (Law Div. 198) (kidnapping charge was dismissed by Assignment Judge Martin Haines because improper comments by the prosecutor about the kidnapping charges interfered with the integrity of the system).

The criminal conspirators who hired the sheriff officers  (Del Vecchio/ATF) failed to apply to a Law Division Judge to obtain a Warrant for Removal as is mandated by state law (see N.J.S.A. 2A:42-10.1).  Instead, Del Vecchio and ATF fraudulently self-certified to a Clerk in Mercer County that Dr. Stephanatos had no possessory interests protected by the Anti-Eviction Act, by claiming to the clerk of the Mercer County Court that this was a mortgage foreclosure case (which was not- it was a tax lien case).  By this fraudulent self-certification, he obtained from the Clerk of Mercer County (not from a judge) a Writ of Possession.  Note that should he went to a Law Division Judge and obtained the required Writ of Removal, there would have been a hearing and I would be able to assert the defense of more than 3-years of possession.  These individuals knew that Dr. Stephanatos would not allow anyone onto his property without his consent and they failed to follow the procedures mandated by state law, i.e. the forceful entry and detainer statutes under N.J.S.A. 2A:39-1 Unlawful entry prohibited. 

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[5]. Furthermore, Dr. Stephanatos had full equity into 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, Dr. Stephanatos also filed for a stay of the proceedings.  I believe that these are the reasons for the conspirators acting in haste and fraud and criminal intend in removing me from my residence and place of business without following the Forceful Entry and Detainer statutes:  the Law Division would have found in my favor as a matter of law and they acted quickly by circumventing the New Jersey Forceful Entry law.

Meanwhile, Dr. Stephanatos 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, Dr. Stephanatos applied for a stay from the foreclosure judgment, to ensure that a higher court and/or a federal court hear his appeals.

In addition, Dr. Stephanatos had a home-based business in the premises (Metropolitan Environmental Services).  Finally, the Dr. Stephanatos expected that Governor Christie and Senator O’Toole would intervene and stop the illegal actions of the conspirators.   Also, The New Jersey Appellate decision would have vacated a 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 determine the applicable law.  See Royal Tax Lien Services, LLC v Morodan, Appellate Division, Docket No. A-6030-12T1, July 3, 2014.  Thus, Dr. Stephanatos had a recognized possessory property interest for Fourth, Fifth and Fourteenth Amendment purposes.  The conspirators working in concert, deprived Dr. Stephanatos of his personal, business and real estate property, valued at millions of dollars.

Conclusion

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.  In fact, defendant had full equity into his home, state law protected him (see 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 he had filed appeals to overturn the fraudulently-obtained judgment of possession. 

The indictment must be dismissed with prejudice due to the outrageous government conduct recounted above.

POINT V

THE ENTIRE INDICTMENT MUST BE DISMISSED WITH PREJUDICE AS THE STATE NEVER INSTRUCTED THE GRAND JURORS AS TO THE APPLICABLE DEFENSES OF IGNORANCE OR MISTAKE OR 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 or mistake or duress or entrapment. 

Right to Introduction of Defenses or Justifications

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 to disclosed to the Grand Jury are those that clearly tend to establish innocence.

If the jurors were misinformed, for example, about applicable defenses to the charges, their finding of sufficient cause to indict would be undermined.

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 (see New Jersey’s Anti-Eviction Act; N.J.S.A. 2A:18-16.1 et seq.) and New Jersey’s Foreclosure Fairness Act, P.L. 2009, c. 296, N.J.S.A. 2A:50-69 thru 72). 

The sheriff admits and Lucas and D’Agostino testified during the grand jury proceedings that they performed a forceful entry into a residential property in direct violation of the forceful entry and detainer laws of this state, N.J.S.A. 2A:18-57 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 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.  These sheriff employees also testified that Dr. Stephanatos had stated

“I am not going anywhere”. 

Therefore, it is irrefutable that the sheriff knew that he had to obtain a Warrant for Removal but he failed to do so.  The sheriff decided to forcibly evict Dr. Stephanatos in violation of state law, and the motive of the sheriff must be questioned, as the sheriff 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 jury when they said that they were merely trying to deliver eviction papers.  Yet, they end up removing Dr. Stephanatos from his residence anyway, in violation of the Unlawful Entry and Detainer state law (see N.J.S.A. 2A:18-57). 

The conspirators knew that the above law and other state statutes protect Plaintiff’s right to remain in actual possession of his residence.  Specifically, N.J.S.A. 2A:39-7 says that title shall not be an issue since Plaintiff 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.

The grand jurors were never informed of these crucial facts.

Accordingly, the Sheriff’s officers were unlawfully and wrongfully trying to and, in fact, did unlawfully evict the defendant form his residence. 

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 United States Supreme Court decision was the reason that defendant did not get out of his home, as he was never shown a valid arrest warrant.  Furthermore, at no time did anyone informed the defendant that he is under arrest.  He was on the phone for a long time with officer Celix, but he never once stated that Dr. Stephanatos has committed any crime and that he is under arrest.  Thus the charges of hindering apprehension are absolutely fraudulent.

In State v. Miller, 342 N.J. Super. 474 (App. Div. 2001), the Court made clear the separate distinctions between an arrest warrant and a search warrant. See id. at 488, citing Steagald v. United States, 451 U.S. 204, 212-13 (1981):

While an arrest warrant and a search warrant both serve to subject the probable-cause determination of the police to judicial review, the interests protected by the two warrants differ.  An arrest warrant is issued by a magistrate upon a showing that probable cause exists to believe that the subject of the warrant has committed an offense and thus the warrant primarily serves to protect an individual from an unreasonable seizure.  A search warrant, in contrast, is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individual’s interest in the privacy of his home and possessions against the unjustified intrusion of the police. Id.

 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. 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:

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

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

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:

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

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

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 maybe 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.

In State v. Burke, 362 N.J. Super. 55 (App. Div.), certif.  denied, 178 N.J. 374 (2003), the Appellate Division vacated a conviction under N.J.S.A. 2C:18-3c (the so-called “peeping Tom” provision) due to an insufficiency of the evidence.  The Burke Court cited State v. Livingston, 172 N.J. 209 (2002), which explained that “[I]n criminal cases we are guided by the rule of lenity, which requires us to construe penal statutes strictly and interpret ambiguous language in favor of the criminal defendant.” The Appellate Division concluded “that N.J.S.A. 2C:18-3c requires that the prohibited “peering into” be from a location outside, and into, the “window or other opening of a dwelling or other structure adapted for overnight accommodations[.]” Id. at 60.  Since the State’s proofs could not establish that essential element of the offense, the conviction had to be vacated. Id.

THE LAW CONCERNING SUFFICIENCY OF THE EVIDENCE BEFORE THE GRAND JURY

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).  A grand jury is “charged with the two-fold responsibility of bringing the guilty to trial while protecting the innocent from unfounded prosecution.”  Murphy, supra, 110 N.J. at 29.  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); State v. Kline, 277 N.J. Super. 623, 626 (Law Div. 1994); State v. Hill, 166 N.J. Super. 224, 229 (Law Div. 1978), rev’d on other grounds, 170 N.J. Super. 485 (App. Div. 1979).  Thus, a trial court should not hesitate to exercise its discretion to dismiss an indictment where there are clear, plain grounds to believe that it is manifestly deficient or palpably defective because it is:  (1) facially deficient, State v. Wein, 80 N.J. 491, 497 (1979); (2) not supported by sufficient evidence, Morrison, supra, 188 N.J. at 12; or (3) the product of prosecutorial misconduct clearly infringing upon or subverting the grand jury’s decision-making process, Murphy, supra, 110 N.J. at 35.  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. (internal quotation marks omitted). 

DEFENSE OF DURESS

Right to Introduction of Defenses or Justifications

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 to disclosed to the Grand Jury are those that clearly tend to establish innocence.  Here, we believe that the defense of duress should have been presented to the grand jury.

N.J.S.A. 2C:2-9 provides that it is an affirmative defense to a charge 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. Id. 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. Id.

According to the New Jersey’s Model Jury Instructions for NJSA 2C:2-9, “The State has the burden to disprove, beyond a reasonable doubt, the defense of duress. “

Note:  there is no question that I tried to talk to the authorities to ask them to intervene to prevent the sheriff from entering the home.  I even called the Wayne Police, as the phone record shows.  No person who allegedly tried to assault a sheriff employee would ask help from the government entities and even the police.

DEFENSE OF ENTRAPMENT (SEE N.J.S.A. 2C:2-12)

Right to Introduction of Defenses or Justifications

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 to disclosed to the Grand Jury are those that clearly tend to establish innocence.  Here, we believe that the defense of entrapment should have been presented to the grand jury.

The model jury instructions regarding the defense of entrapment have the following:

The law does not authorize a law enforcement officer whether by himself/herself or through an agent or informant, or together with others to trap another person by inducing or encouraging him/her to commit an offense and then as a direct result of that inducement or encouragement, cause that other person to commit an offense.

The defendant must prove by a preponderance of evidence that he/she was induced or encouraged to commit the offense by the law enforcement officers (the officer's agent or informant, or others) or knowing false representations which by their very nature created a substantial risk that the crime would be committed by an average person who was NOT otherwise ready to commit it.

In addition, the defendant must prove that the police conduct in fact caused him/her to commit the crime; in other words, that the crime was a direct result of the police action.

There is no dispute here that but for the actions of the sheriff employees, the incident on June 28, 2011 would not have occurred.  The sheriff employees did not have a Warrant for Removal and were not legally authorized to forcibly remove him from his dwelling and place of business – they did it anyway, by sending several officers that day to remove him.  It was these actions of the sheriff employees that created the situation and not the defendant.  This is undisputable and requires a dismissal of all the charges with prejudice and the restoration of the defendant’s good name, reputation, business, property (or equivalent property) and lost income and expenses.

A. Statutory Entrapment

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 employees (lack of Warrant for Removal), no incident would have ever happened.  The grand jurors would have most likely find that the defendant was entrapped by the sheriff employees.

Objective entrapment existed 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).  Here, it is unquestionable that but for the illegal acts of the sheriff employees (lack of Warrant for Removal), no incident would have ever happened.  The grand jurors would have most likely find that the defendant was entrapped by the sheriff employees.

B. Due Process Entrapment

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.”

Traditional objective entrapment may apply to a defendant predisposed to commit the crime as due process entrapment, thus the principles of objective entrapment are relevant to an inquiry into due process entrapment. State v. Johnson, 127 N.J. 458, 473-75 (1992).

C. Procedural Issues and Burden of Proof

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. Id. at 577. 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).

None of these defenses were ever presented to the grand jurors.

In the case at bar the indictment must be dismissed with prejudice due to the outrageous government conduct recounted above.

POINT VI

THE ENTIRE INDICTMENT MUST BE DISMISSED WITH PREJUDICE AS THE STATE NEVER INSTRUCTED THE GRAND JURORS AS TO THE NEW JERSEY SELF-DEFENSE LAW CONSIDERING THAT THE CONSPIRATORS AND/OR LUCAS AND D’AGOSTINO DID NOT OBTAIN A WARRANT FOR REMOVAL AS IS REQUIRED BY NEW JERSEY’S UNLAWFUL ENTRY LAW

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 and images presented under POINT VII), 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 jurors, 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 from a Law Division Judge as is mandated by New Jersey’s unlawful entry law.  The New Jersey’s unlawful entry law prohibits unlawful entry or detainer.

ACTIONS FOR UNLAWFUL ENTRY OR DETAINER

N.J.S.A. 2A:39-1 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

ACTIONS FOR UNLAWFUL ENTRY OR DETAINER  2A:39-8.  Recovery of damages and possession of property;  treble damages in  lieu of possession.  In any action under this chapter, a plaintiff recovering judgment shall be entitled to possession of the real property and shall recover all damages proximately caused by the unlawful entry and detainer including court costs and reasonable attorney's fees.  When a return to possession would be an inappropriate remedy, treble damages shall be awarded in lieu thereof.  The judgment may be enforced against either party in a summary manner by any process necessary to secure complete compliance therewith, including the payment of the costs.

Here, the State has already admitted in November 2011 before the Hon. 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.

The defendants knew that the above law and other state statutes protect Plaintiff’s right to remain in actual possession of his residence.  Specifically, N.J.S.A. 2A:39-7 says that title shall not be an issue since Plaintiff 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.

Defendant, having just obtained a J.D. law degree at the time (June 2011), knew that only through a removal action before a Law Division judge could the sheriff remove him.  That is the reason he kept his doors closed and locked with deadbolts AT ALL TIMES.  The defendant also knew that the sheriff employees are in fact hired by the conspirators and they act as agents of the conspirator and not necessarily an agent of the state.  Lucas admitted in his testimony that he was hired by conspirator Robert Del Vecchio.  Sheriff 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.”

 Id.  In Gartland, the defendant wife (Ellen Gartland) was subjected to “seventeen years of spousal abuse” including physical and emotional abuse.  The Supreme Court reversed the wife’s manslaughter conviction for shot gunning her husband.  The Court’s ruling led to a Senate bill that provides that the duty to retreat by a person attacked in the person’s home is eliminated in all cases except if the person instigated the altercation.

In State v. Bilek, 308 N.J. Super. 1 (App. Div. 1998), the Appellate Division held that a self-defense jury charge was misleading and probably led to an unjust conviction for fourth degree aggravated assault.  The Appellate Division reversed and remanded the conviction on the ground that the jury instruction was flawed in that it did not advise the jury that the level of force used to defend need not be proportionate to unlawful force.  Additionally, the jury should have been expressly told that pointing a loaded firearm is “force” to which defense of one’s dwelling may apply. (emphasis added).  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. (emphasis added). State v. Gartland, supra, 149 N.J. at 467, 694 A.2d 564 (“N.J.S.A. 2C:3-4(c) provides special rules for the use of deadly force on an intruder into one’s dwelling.  For example, under this provision, deadly force may be used against an intruder to counter any level of unlawful force threatened by the intruder.”).  It is clear to us that the critical questions for the jury to resolve were whether the Lapas were the aggressors and what “force” defendant reasonably perceived himself to be confronted by.  The notion of disproportionality should have had no role in this consideration, yet the jury charge most certainly does not make that clear.  Indeed, it is quite to the contrary. Id. at 12 (emphasis supplied).

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 employees came onto defendant’s property to illegally remove him from his dwelling and place of business:

Fact #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. See Motion to Change Venue.

Fact #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 had a Warrant for Removal?”. 

A: (Peter Roby): “No, Your Honor.”

Then Judge Filko shook his head, realizing that the sheriff may have committed an illegal act.  At a later hearing before Judge McGeady in Bergen County Court (to address a criminal complaint against the conspirators), the Hon. Judge McGeady also shook his head when he heard that the sheriff failed to obtain a Warrant for Removal.  The Judge then asked at least two times:  “Are you sure that they did not obtain a Warrant for Removal?”.  I responded, “Yes, Your Honor.  The State has already admitted that before Judge Filko.”

Thus, it is obvious that competent judges are aware of the state law that must be followed in cases of residential entries.  That raises the competency and role of Chancery Judge Margaret McVeigh, and it will be addressed in another section.

Fact #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 cannot 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.  Should he have 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.

Fact #4:  Lucas tried to convince the grand jurors 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 lie, another Lucas fabrication, because there were several sheriff 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 of this state.  The defendant had already received the eviction papers, there was no need to serve the very same papers.  The Court should take note of the continued lies and fabrications of Lucas and the other sheriff employees.

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”. 

In the book entitled the “Duties and Liabilities of the Sheriffs”, by Ottis Allen, 1845, page 143, it is stated that

“The sheriff is considered the pro hac vice agent of the Plaintiff” – “for only this occasion”. 

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 a 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.

To summarize the law regarding force against intruders, subsection c (effective May 15, 1987) provides a separate rule for the use of force, including deadly force against intruders.  Since the sheriff employees failed to secure a law-mandated Warrant for Removal (a fact that has been already admitted in open Court by Peter Roby), they were in fact intruders and trespassers onto Dr. Stephanatos’ dwelling and property, with the intent to perform a Forceful Entry and Forceful Removal in violation of New Jersey Law.  The peering through the side window by Lucas are also criminal acts and the homeowner has the right to defend his dwelling, asking the intruder to leave his/her property.  Peering into dwelling places, is a crime that has been committed by the sheriff and county employees as they did not have a law-mandated Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited), and were trespassing on defendant’s property and peering through his residential window(s).  See 2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into dwelling places.

This rule does not replace the justification found in subsections a and b, it merely adds another justification where the particular requirements are met.  The justification requires that the actor be lawfully in a dwelling and using force against an intruder, a person who is actually unlawfully in the dwelling.  It further requires either: (1) that the actor reasonably believes that the force is necessary to protect against unlawful force by the intruder or (2) that the circumstances set out in paragraph c(2) are met; (c)(2) provides: “A reasonable belief exists when the actor, to protect himself or a third person, was in his own dwelling at the time of the offense or was privileged to be thereon and the encounter between the actor and intruder was sudden and unexpected, compelling the actor to act instantly”.  See Senate Judiciary Statement, October 2, 1986 to Assembly Comm. Sub. For A. 498, 323 and 297.

It should be noted that unlike most other provisions of Chapter 3, this provision does not limit the use of deadly force to responses to danger of a similar level of force. See e.g. 2C:3-4b(2).  Under this subsection, deadly force can be used against an intruder based on a reasonable belief that the intruder is about to use unlawful force (c(10)) or inflict personal injury (c(2)(a)) and can also be used if the intruder, after demand that he withdraw, disarm or surrender, fails to do so. (c(2)(b)).  The only time that the defendant could not ask the sheriff employees to leave his dwelling is if they had a Warrant for Removal, which is not the case here, as these potentially corrupt sheriff employees acted as agents for the conspirator Robert Del Vecchio and violated a number of state laws (peering into dwelling, unlawful entry and detainer, failure to obtain Warrant for Removal, etc.).

CREATION, BY USE OF EXCESSIVE FORCE, OF A SITUATION IN WHICH LATER JUSTIFIABLE FORCE IS USED IS ACTIONABLE

A classic Fourth Amendment (see also N.J. Const. (1947), Art. I, Par. 7) violation is stated by showing that officers used excessive force in creating the situation which caused a person to take the actions he did. When police create a situation in which their own actions cause them to use excessive force in response to force used by another person, then the police may be held liable for their use of responsive force even if, taken alone, their second use of force was justified. Use of excessive force which provokes a response of force and results in an additional, responsive use of police force is actionable. Alexander v. City and County of San Francisco, 29 F.3d 1355, 1366 (9th Cir.1994), cert. denied, 513 U.S. 1083, 115 S.Ct. 735, 130 L.Ed. 2d 638 (1995); Reynolds v. County of San Diego, 84 F.3d 1162, 1169 (9th Cir.1996) (quoting Alexander v. City and County of San Francisco, 29 F.3d 1355, 1366 (9th Cir. 1994), cert. denied, 513 U.S. 1083, 115 S.Ct. 735, 130 L.Ed.2d 638 [19951).

THE GRAND JURORS SHOULD HAVE ALSO BEEN INSTRUCTED ON THE USE OF CONSTRUCTIVE AUTHORITY

The grand jurors should have also been instructed on the use of constructive authority to exert control over a subject and not to necessarily injure the subject.

The use of constructive authority is recommended by the Attorney General to exert control over a subject.  Source: http://www.policeleak.com/useofforcepolicy

DEFINITIONS

A. Constructive Authority

1. Constructive authority does not involve actual physical contact with the subject, but involves the use of the law enforcement officer’s authority to exert control over a subject.

Similar constructive authority can be used by a homeowner to protect his home from intruders or possible intruders.  It involves the upholstering of a weapon as a show of deterrent against intruders, the same way armed guards are displaying their weapons to discourage intruders.

2. Examples include verbal commands, gestures, warnings, and upholstering a weapon.

3. Pointing a firearm at a subject is an element of constructive authority to be used only in appropriate situations.

D. Exhibiting a Firearm

A law enforcement officer shall not unholster or exhibit a firearm except under any of the following circumstances:

a.            For maintenance of the firearm;

b.            To secure the firearm;

c.            During training exercises, practice or qualification with the firearm;

d.            When circumstances create a reasonable belief that it may be necessary for the officer to use the firearm;

e.            When circumstances create a reasonable belief that display of a firearm as an element of constructive authority helps establish or maintain control in a potentially dangerous situation in an effort to discourage resistance and ensure officer safety.

Source: http://www.policeleak.com/useofforcepolicy

Here, the grand jurors should have been instructed that upholstering or pointing of a weapon can be used by a homeowner in self-defense when intruders are trying to enter or are at his dwelling without a lawful purpose or without having a Warrant for Removal.  The grand jurors should have also been instructed that the homeowner does not necessarily intends 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 discourage and send intruders away from his/her property. 

Here, such constructive authority would have been applicable, especially since the officers were both armed and trained to shoot to kill (there is ample record during the last few years that sheriff and police officers shoot to kill people in their back and then plant evidence, lying in court, use excessive force, etc.)  and were trying to illegally evict the defendant without possessing a law-mandated Warrant for Removal signed by a Law Division Judge; in other words, the sheriff officers were trying to commit an illegal act in violation of state law, and were illegally peering through the side window of a dwelling in violation of state criminal law, despite having notice that they are not allowed to do so at the property and without first applying to a Law Division Judge to obtain a Warrant for Removal.

In State v. Morrison, 188 N.J. 19-20, (2006), the Supreme Court of New Jersey performed its “fact-sensitive analysis based on the totality of the circumstances”, concluded that the evidence supporting the element of distribution was insufficient, and reinstated the Law Division’s dismissal of the indictment.

Here, the defendant has presented irrefutable evidence (emails and phone records), showing that he was conducting his home-based business during June 28, 2011, as he has been doing for many years.  He was also communicating with the legislature, the governor, the U.S. Attorney 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 (armed agents peering through his windows, armed agents intending on removing him by force without the requisite Warrants, and so on) to prevent from braking into his home. 

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 also never instructed the grand jury that the sheriff did not have a Warrant for Removal issued by a Law Division Judge and were in fact intruders who were intending on unlawfully removing the defendant from his home on June 28, 2011, and were peering unlawfully through defendant’s windows in violation of New Jersey law.  The state should have instructed the grand jurors that defendant had the right to defend himself and/or his dwelling and/or business from such threats and intrusions.  Finally, the State should have instructed the grand jurors on the use of constructive authority to establish or maintain control in a potentially dangerous situation in an effort to discourage breaking into his home or discourage resistance and ensure his safety.

Now we know that the conspirators ATF, Robert Del Vecchio, and others hired the sheriff and committed fraud on the court and enforced an unlawful removal from a residential property and a place of business, while lying to the grand jurors about pretty much everything as the next section details.

The indictment must be dismissed with prejudice due to the outrageous government conduct recounted above.

POINT VII

THE ENTIRE INDICTMENT MUST BE DISMISSED WITH PREJUDICE DUE TO THE USE OF PERJURED TESTIMONY AND FALSE, FABRICATED OR FRAUDULENT EVIDENCE TO MISLEAD THE JURORS AND TO OBTAIN THE INDICTMENT

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, i.e., they committed perjury, a criminal offense.  We are asking this Court or the Attorney General to charge these individuals with perjury after we prove their lies and fabrications in an evidentiary hearing.

Between their investigation reports and the grand jury testimony, Lucas and D’Agostino have presented at least seven (7) different scenarios of what happened during the morning of June 28, 2011.  That is, seven (7) different scenarios they present on their own words (either written or spoken), without even being cross examined by the defense.  Can this Court imagine what will happen if Dr. Stephanatos or his defense counsel is allowed to cross-examine these lying individuals?  We can guarantee to this Court that there will be some very significant Perry Mason moments and we are asking that we are allowed to cross-examine them;  the right to confront the accusers is a fundamental right guaranteed by the Sixth Amendment to the Federal and New Jersey Constitution.  The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government.

General overview of Dr. Stephanatos’ former dwelling that was seized by the conspirators.  Photo taken from the front of the property, two weeks prior to the tragic incidents of June 28, 2011.  Note the philodendron subincisum planter at the front of the porch area.  Lucas went behind the philodendron subincisum planter and placed his face at the side window so that he can see inside the home. This is a criminal activity prohibited under 2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into dwelling places and in violation of the Fourth Amendment to the U.S. Constitution and N.J. Const. (1947), Art. I, Par. 7.  Lucas then went behind the rhododendron bushes where he claimed that he fell and injured his shoulder.  These facts, including the location of Lucas, prove beyond any doubt that Lucas was illegally peering and searching inside a dwelling without having a Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited).  He then 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 Dr. Stephanatos 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 Dr. Stephanatos’ business was a metal ammunition box, a fraudulent assertion that has been refuted before Judge Filko by Prosecutor Peter Robby.  Lucas also claimed that he saw a “shotgun”, but no “shotgun” was ever found.

Lucas Lie #1

Specifically, both officers lied when they testified 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; Da7; D’Agostino testified to this at GJT16-1 to 17; Da10).

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 (see image below) 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.  See N.J.S.A. 2A:39-1 Unlawful entry prohibited.  Had defendant left the door open, they would not have been able to see the business sign.

It makes no sense that I would keep the front door open for the sheriff to come in, when in fact I did not want anybody to come inside my home while the appeals were pending in the appellate courts and there was a lawsuit in the Law Division to vacate the tax deed.  These two deputies are obviously lying to cover their criminal activities.  Having a JD Degree, I knew that if a leave a door open, I am actually inviting the sheriff to enter my home; the same result is if I answer the door.  That is why I did not answer the door (in fact, I very rarely if ever answer the front door).  I would never do such a thing. 

Furthermore, the sheriff post-incident reports all show that my back door was locked with deadbolt, my garage was locked with deadbolt, and my car was also locked.  Who locks his car inside a locked garage, and who places deadbolts in garage?  Well, a person like Dr. Stephanatos who knew the law and knew that he needed to prevent everybody from coming inside his home, especially that day, until the Appellate Courts adjudicate the case.  Dr. Stephanatos also knew that what Robert Del Vecchio and ATF were doing was illegal and that they took advantage of the sheriff and the lack of competence or heavy caseload of Chancery Judge McVeigh.

Lucas Lie #2

During the grand jury proceedings, Lucas also lied to the jurors when he said that he was only trying to serve process papers.  This is an obvious fabrication, a terrible lie, as he also testified that several officers were dispatched during that day in two sheriff vehicles with the specific intend to forcefully remove Dr. Stephanatos without obtaining a Warrant for Removal from a Law Division Judge.  The process papers he referred to had already been delivered to Dr. Stephanatos.  How come several officers are now attempting to re-deliver the same papers?  This makes no sense, as it is a lie, a perjury committed by Lucas.

View of the front door of Dr. Stephanatos’ dwelling at 687 Indian Road, Wayne, New Jersey.  Photo taken from the front of the property, two months after the tragic incidents of June 28, 2011.  Note the significant sun glare, making it impossible to see inside the home during the morning hours.  The philodendron subincisum planter at the front of the porch area has been removed, as the conspirators emptied Dr. Stephanatos’ home from all his belongings.  After nobody answered the door at 8:50-8:55 AM on June 28, 2011, and because of the sun glare, Lucas went behind the philodendron subincisum planter and placed his face at the side window so that he can see inside the home.  This is a criminal activity prohibited under 2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into dwelling places.  It is also an illegal search prohibited by the Fourth Amendment to the U.S. Constitution and N.J. Const. (1947), Art. I, Par. 7.  Lucas then went behind the yew and rhododendron bushes where he claimed that he fell and injured his shoulder.  These facts prove beyond any doubt that Lucas was illegally peering and searching inside a dwelling without having a Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited).  Lying Lucas then later claimed that he was just coming up the steps and he was assaulted.  Lying Lucas also claimed that a Pelican scientific case used by vendors of Dr. Stephanatos’ business was a bomb; when no bomb was found he claimed that he thought it was a “metal ammunition box”, a fraudulent assertion that has been refuted before Judge Filko by Prosecutor Peter Roby.  Lying Lucas also claimed that he saw a “shotgun”.  This is what was reported to the other officers and to the media.  The media published and televised reports show that Lying Lucas claimed that there was a “shotgun”.  No “shotgun” was ever found (because it only exists in the imagination of Lying Lucas).  Lucas then changed his story and after he saw the defendant’s lawful guns, he claimed that he saw a rifle, instead.

Lucas Lie #3

In addition, I have irrefutable evidence (email and phone logs) showing that I was either on the computer doing business work or calling the state officials right at the time that these sheriff’s deputies claim that they saw me through an open front door.  For example, Lucas testified that he arrived at the property at 8:50 am.  There is an electronic record provided in the Appendix to Motion to Change Venue that shows that Dr. Stephanatos sent an e-mail to one of his clients at 8:55 am.  This irrefutable evidence proves beyond any doubt, that Dr. Stephanatos was at his office computer at the back of the house (about 50-feet away from the front door) doing his normal daily business.  Thus Dr. Stephanatos has an irrefutable alibi to refute the false statements of these two corrupt individuals who claim that at around 8:50 to 8:55 am they saw him 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:  I have window-mounted air conditioning units.  I would take the air conditioning units off the window around mid-September and I would install them around Memorial Day (end of May).  When I install the air conditioning units, then I keep all the doors and the windows closed, so that I do not lose energy. 

Yet another reason I always keep the doors closed is that my home office is located at the back of the dwelling and I cannot hear very well what is 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.  Thus, the lack of hearing and the fear of burglary had made me keep the doors locked at all times- all doors, in fact: back doors, front doors, and garage doors.  Besides, I very rarely used the front doors, as the garage entrance is located closer to the back door entrance.  So, I almost never used the front doors.  That is another reason that Lucas and D’Agostino committed perjury when they said that I left the front door open.  The computer electronic record was in the possession of the State before the grand jury proceedings; however, the corrupt prosecutor Walter Dewey refused to give it to the jury and of course refused to allow me to testify.

Lucas Lie #4

Dr. Stephanatos also requests this Court to take judicial notice of the fact that a box taken by the Passaic County employees from Dr. Stephanatos’ residence was a business instrument (a so-called Pelican case used for transporting sensitive business equipment) and not a “metal ammunition box” as the Passaic County employees have been misleading the grand jury and the courts and the public, damaging Dr. Stephanatos reputation.  It is obvious that these two crooked individuals wanted to give the false impression to the grand jurors that Dr. Stephanatos had pre-planned an assault and he had stockpiled ammunition in a metal box.  This was highly prejudicial fabrication by the corrupt Passaic County prosecutors.  Of course, who would place a metal ammunition box at his front steps, leave the front door open for the sheriff to come inside his home to illegally remove him, and then go back 50 feet away from the door to his back office and start writing emails and doing business for his clients?  Nobody; certainly not Dr. Stephanatos who is a highly educated individual who holds BS/MS/PhD Degrees in engineering and a J.D. Degree as well and has served as expert engineer for many years.  These are all lies and fabrications of Lucas and D’Agostino and the Passaic County corrupt prosecutors.

Of course we now know that these were fraudulent and perjured statements by Lucas and D’Agostino.  The State has admitted before Judge Filko, 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 Dr. Stephanatos’ business, Pine Environmental, Inc. the morning of June 28, 2011.  The Passaic County prosecutor, Peter Roby, has already admitted in open court before Judge Filko that it was a rental instrument for Dr. Stephanatos’ business- however, the prosecutor during the grand jury proceedings said to the grand jurors that the two lying and corrupt Sheriff Officers (Lucas and D’Agostino) thought that the business instrument was “a metal ammunition box”, giving the impression to the grand jurors that I was prepared for a battle and I had a metal ammunition box at my front porch.  (Of course these are insane assertions by these two crooked deputies, as this was a plastic box and not a metal box and only an insane moron or a crooked “officer of the law” would mistake it for a metal ammunition box  - please see the sample images below to see the significant differences between an ammunition box and a Pelican case).  In fact, in November 2011, when Dr. Stephanatos was allowed to get back his seized business computers, he was told by the sheriff employee doing the paperwork that the sheriff did not know what the Pelican case was.  Imagine, if these two crooks lied about the Pelican case, what else have they lied about? – Well, they pretty much lied just about everything.  We demand a full investigation into their corrupt and perjured testimony, as these two liars have caused the events of June 28, 2011 through their incompetence and lying and fabrications and perjured testimonies and false reports.

Typical metal and plastic ammunition boxes.  Note the significant difference between these boxes and the Pelican case shown below.

This image shows a typical Pelican case used to ship scientific instruments similar to the one seized from Dr. Stephanatos’ front porch.  The State has already admitted on the record in open court before Judge Filko that the Pelican case had been placed at the porch to be picked up by the vendor, Pines Environmental, Inc. on the morning of June 28, 2011.  The State lied to the grand jurors and told them that they believed it was a bomb or a metal ammunition box and that is one of the reasons they believed they were facing a dangerous person in Dr. Stephanatos.  What a bunch of liers and losers.

Of course later, in November 2011 before Judge Filko, Mr. Peter Roby, a Passaic County prosecutor, admitted that the business instrument was not an ammunition box and he did confirm that he talked to Pine Environmental, Inc and did confirm to him that their employee (the Pine Environmental driver) was due to come and pick up the instrument that morning from Dr. Stephanatos’ front porch (this is where I would typically place the various rental instruments for pickup and delivery).  Again, none of these facts made it to the grand jury, in a clear attempt by Peter Roby and his associates (such as Water Dewey who made the presentation to the grand jury) to mislead and lie to the grand jury so that the jurors believe that somehow Dr. Stephanatos left an illegal or dangerous device at his front porch.  What a bunch of liars these prosecutors and sheriff deputies are.  The indictment must be dismissed with prejudice, based on these lies and fabrications and omissions of crucial facts by the State and Passaic County employees so that they mislead and prejudice the grand jury against Dr. Stephanatos.  In fact Dr. Stephanatos’ lawyer, Mr. Carl Herman, had met and also sent a confirmatory letter to the Passaic County prosecutors (see Exhibit B for a copy of the letter send to the State) to allow me to testify during the proceedings regarding the events of June 28, 2011.  However, the Passaic County prosecutors refused to allow me to testify and present clearly exculpatory evidence for elements of all the charges.  Thus the State fed the grand jury with lies and fabrications and half “truths”, against the grand jury New Jersey law.  Essentially the State impermissibly and prejudicially interfered with the grand jury’s investigative function.

Lucas Lie #5

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 is also a fabrication, a lie, as Lucas rang the doorbell at about 8:52 am (or between 8:50 am and 8:55 am).  The sheriff investigation reports show that other sheriff employees wrote that “somebody answered the door”.  These statements corroborate Dr. Stephanatos’ recollection that Lucas rang the doorbell.  When Dr. Stephanatos did not answer the door (I would never answer the door, and certainly I would not answer it that day), he bypassed the 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).  That way he performed an illegal search in violation of the Fourth Amendment to the U.S. Constitution and N.J. Const. (1947), Art. I, Par. 7.

Lucas Lie #6

After peering inside the dwelling, Lucas then jumped off or fell off the edge of the porch, proving that he was located at the side window peering inside. He does admit in his Investigation 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 my scenario and proving yet again that Lucas lied to the grand jurors.

 

View of the rhododendron bushes located before Dr. Stephanatos’ dwelling.   Photo taken four weeks prior to the tragic incidents of June 28, 2011.  Note the philodendron subincisum planter at the front of the porch area (middle left in the above image).  At about 8:55 AM on June 28, 2011, after nobody showed up at the front door, Lucas went behind the philodendron subincisum planter and placed his face at the side window of the front door so that he can see inside the home.  This is a criminal activity prohibited under 2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into dwelling places and an illegal search in violation of the Fourth Amendment to the U.S. Constitution and N.J. Const. (1947), Art. I, Par. 7.  Lucas then went behind the rhododendron bushes where he claimed that he fell and injured his shoulder.  These facts prove beyond any doubt that Lucas was illegally peering and searching inside a dwelling without having a Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited).  He then later claimed that he was just coming up the front steps to deliver papers (and not to evict Dr. Stephanatos – what a bunch of hooey) and he was assaulted.  He also claimed that a plastic Pelican scientific case used by vendors of Dr. Stephanatos’ business was a metal ammunition box, a fraudulent assertion that has been refuted before Judge Filko by Prosecutor Peter Roby.

Furthermore, it is not possible that these two individuals did not say anything to me, without announcing that they were sheriff officers or law enforcement officers and without me saying anything to them (as they have testified);  they were both armed and prejudiced against me (based on the testimony by Lucas) and 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 me at that time.  These are the same type of people who shoot to kill citizens in their backs and then plant evidence and even shoot and kill kids who hold plastic guns.  And they claim they simply walked away?  Hard to believe.  Because it is a total and complete fabrication.

Please note that Lucas and D’Agostino are partners.  They drove in the same car during that day and they testified that they both walk towards the front steps at the same time.  Thus, it makes not much sense that Lucas would go behind my front bushes (the yews and the rhododendrons), while D’Agostino would go towards his sheriff car.  This scenario is only likely if Lucas was located in front of the side door window and at the very edge of it (this is where I saw him standing, having his face on the glass window and illegally peering inside the home).  There was no reason for him to do so, 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.

View of the front door of Dr. Stephanatos’ dwelling at 687 Indian Road, Wayne, New Jersey.  Photo taken from the front of the property, two months after the tragic incidents of June 28, 2011.  Note the significant sun glare, making it impossible to see inside the home during the morning hours.  The philodendron subincisum planter at the front of the porch area has been removed, as the conspirators emptied Dr. Stephanatos’ home from all his belongings.  Because of the sun glare, Lucas went behind the philodendron subincisum planter and placed his face at the side window so that he can see inside the home.  This is a criminal activity prohibited under 2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into dwelling places.  Lucas then went behind the rhododendron bushes where he claimed that he fell and injured his shoulder.  These facts prove beyond any doubt that Lucas was illegally peering and searching inside a dwelling without having a Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited).  He then later claimed that he was just coming up the steps and he was assaulted.  He also claimed that a Pelican scientific case used by vendors of Dr. Stephanatos’ business was an ammunition box, a fraudulent assertion that has been refuted before Judge Filko by Prosecutor Peter Robby.

 

Very important:  my bushes (yews/rhododendrons) were made of some very hard wood.  It is very 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 woods.  This proves that Lucas was standing at the inaccessible to the public window and was peering inside Mr. Stephanatos’ residence – this is a criminal act under New Jersey law and an illegal act under federal law.

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 Dr. Stephanatos’ residence), while D’Agostino went towards the sheriff cars parked at the top of the driveway.  This can 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 towards the door easily.  This proves my allegation that Lucas was standing at the very edge of the porch and by the side door window, peering inside the home.  D’Agostino was standing in the walkway, and from there he walked towards the sheriff cars at the top of the driveway.

If both of them were standing in front of the door, there is no reason for them to take different routes.  All these facts provide irrefutable proof that these two crooked “officers of the law” have committed perjury.

The Seven Shades of Lucas

These corrupt liars cannot get their story straight – can this Court imagine what will happen when we cross-examine them?  According to the old maxim, “False in one – false in all”, we respectfully submit that Lucas and D’Agostino cannot be trusted, they lied and fabricated their stories to serve the people who hired them, i.e., the conspirators Robert Del Vecchio, American Tax Funding, et al.  If they lied in one or several parts of their story, then the entire deposition must be dismissed.

It is important to note that Lucas has changed his story a number of times:  at one time he claims that he was walking the front stairs and he saw a man standing there and pointing a gun; at another version he claims that he was standing at the open door and that he then saw a person coming towards him; at a third time he claims that there was an altercation; at a forth scenario, he claims that Dr. Stephanatos never said anything to him (i.e., that there was no altercation); at a fifth scenario, he wrote in his report that he “jumped of the porch” (meaning that he was already on the porch and not just coming up the stairs); at a sixth version he claims that he never rang the doorbell; at a seven scenario, 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 Dr. Stephanatos answered the door); at another version, he claims that Dr. Stephanatos was barricaded, yet he also claimed that Dr. Stephanatos had his front door wide open; at another version he claims that he saw a “shotgun” pointed at him (this was also published in the news media and reported in some sheriff employee reports, but no “shotgun was ever found because it was a fabrication by Lucas the Lier) but then he changed his story (after he had a chance to illegally enter my home) and now he claims that he saw a single-shot Ruger hunting rifle; in another version he claims that he saw a bomb at the porch, only to change his story and claim that he saw a “metal ammunition box” – the State has already admitted that none of these fabrications were true and that it was a Pelican case used in Dr. Stephanatos’ business that was about to be picked up by the owner of the case, Pine Environmental, Inc..  However, the State never made these findings aware to the grand jury.

All these versions have been presented by Lucas, without having been cross examined by the defense, without placing a time table to his story elements and without cross-referencing the story given by D’Agostino in his testimony and his Investigation Report and corroboration with the investigation reports of others.  Can this Court imagine the Perry Mason moments, when we will cross-examine these liars?

The Fabrications and Intentional Omissions of Walter Dewey

The prosecutor, Walter Dewey, also mislead the jurors and fabricated “facts” by eliciting false testimony from Officer D’Agostino regarding the pointing of a gun out of a “window”.  The officers had indicated that they saw me standing behind a glass storm door and that I never opened the door.  No “window” was ever mentioned by the two individuals, as no window exists in the front porch of the dwelling.

(I denied that I was standing behind the storm door:  I have stated many times that I was in my office doing my business, I have the computer records to prove it, those records were submitted to the prosecutors, and I kept the doors of the home locked with a deadbolt). 

But the prosecutor asked D’Agostino if I was pointing a gun “out the window”.  Then D’Agostino said “yes”.  This Court should note that there is no window in the front porch- that was another misleading and prejudicial question by the corrupt Passaic County prosecutor.  The prosecutors obviously wanted to mislead and lie to the grand jury by stating that the defendant was pointing a weapon outside a window, something that the two sheriff employees never wrote in their reports, as no window was involved.  In fact, Lucas never testified or wrote that the defendant was pointing a weapon outside a window.  The corrupt prosecutor Walter Dewey elicited this statement from D’Agostino only.  Certainly this is a fraudulent and misleading question/statement that will most certainly damage the State’s “case” (the State never had any case, they just made this up as they were going along;  we now know that no “shotgun” was ever found, and no “metal ammunition box was ever found”, and no “bomb” was ever found.  So these corrupt liars made up a story to tell the grand jury and the public to justify their wrongful actions.)

As the defendant has stated before, both the wooden door and the storm door were closed; the defendant locked the main door with a deadbolt, as always does, because he lived in a remote and wooded area of Wayne and he was always afraid for his security.  Since he has a legal background (he was studying for the final exams of the final year of law school during that week), he knew that if he left the door open (or any window), then he would have been consenting to an entry inside the home by the Passaic County employees.  There is no way on earth that he would leave the door open and the computer records show that he was in his office doing his business and sending emails- none of that information was allowed by the corrupt prosecutors to be submitted to the grand jury.

Here is another example of the fraudulent tactics of the Passaic County prosecutor to lie and mislead the grand jury:

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.”

It is important to note here that the defendant’s home is in an 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 is also fraudulent, as less than five people and less than five habitations were within 100 feet from defendant’s home.  Another example of the prosecutorial misconduct faced by the defendant.

This obviously corrupt prosecutor also refused to allow Dr. Stephanatos to testify to the grand jury to present facts about the defense.  He refused to do so and presented numerous lies and fabrications and refused to provide clearly exculpatory evidence.  What a corrupt thug right there in Passaic County.  Only god knows how many people he has wrongfully convicted.

The New Jersey Grand Jury Law

A "grand jury's 'mission is to clear the innocent, no less than to bring to trial those who may be guilty.'" State v. Hogan, 144 N.J. 216, 228 (1996) (quoting State v. Hart, 139 N.J.Super. 565, 568 (App. Div. 1976); United States v. Dionisio, 410 U.S. 1, 16-17 (1973). In order to execute that mission, "the grand jury cannot be denied access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." Id. at 236. As a result, the Supreme Court has imposed a limited duty on prosecutors to disclose evidence to the grand jury evidence which "satisfies two requirements: it must directly negate guilt and must also be clearly exculpatory." Id. at 237 (citing State v. Smith, 269 N.J.Super. 86 (App. Div. 1993), cert. denied, 137 N.J. 164 (1994)). In order to qualify as evidence that directly negates the guilt of the accused, it must "squarely refute an element of the crime in question." Ibid. (emphasis in original). To determine whether evidence is clearly exculpatory, a court must evaluate the quality and reliability of the evidence within "the context of the nature and source of the evidence, and the strength of the State's case." Ibid.

The Hogan Court remarked that New Jersey courts have not been reluctant to scrutinize grand jury proceedings where the decision-making process was fundamentally unfair. supra, 144 N.J. at 229. 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, 35 (1988). In State v. Gaughran, the Court 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." 260 N.J.Super. 283, 287; 615 A.2d 1293 (1992).

In State v. Morrison, 188 N.J. 19-20, (2006), the Supreme Court of New Jersey performed its “fact-sensitive analysis based on the totality of the circumstances”, concluded that the evidence supporting the element of distribution was insufficient, and reinstated the Law Division’s dismissal of the indictment.

Beyond mandating grand jury independence, the Constitution also requires that a grand jury receive sufficient information “to make an informed decision whether to indict.”. Hogan, 144 N.J. at 229.  Toward that end, our Supreme Court has held that, as a matter of state constitutional law, the prosecution must present to the grand jury evidence that is “clearly exculpatory”. Id. At 229-39.  See also Smith, 269 N.J. Super. At 95 (“prosecutor’s obligation to exercise his discretion in good faith encompasses the obligation to give the grand jury evidence in the prosecutor’s possession which clearly exculpates a defendant”).  In doing so, the Court explained that the state grand jury clause precludes the prosecution 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”. Id. at 236.

Function of the Grand Jury

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 Div.2000) (“[t]he grand jury acts as the conscience of the community”).   It also operates as an independent investigatory body, free from the constraints of the rules of evidence and procedure.  Essex County Grand Jury, supra, 368 N.J.Super. at 280, 845 A.2d 739.   The grand jury plays a significant role in the administration of criminal justice, and courts accordingly demonstrate a marked reluctance to intervene in the grand jury process.   See ibid.   Though judicial supervision of its activities is limited, ibid., the grand jury exercises its powers under the authority and supervision of the judiciary.   State v. Arace Bros., 230 N.J.Super. 22, 33-34, 552 A.2d 628 (App.Div.1989).

 A grand jury is entitled to engage in an exhaustive investigation. State v. Francis, 385 N.J.Super. 350, 358, 897 A.2d 388 (App.Div.), leave to appeal granted, 188 N.J. 344, 907 A.2d 1006 (2006);  see also State v. Johnson, 287 N.J.Super. 247, 259, 670 A.2d 1100 (App.Div.) (when grand jury conducts its investigation, society's interest is best served by a thorough and extensive investigation), certif. denied, 144 N.J. 587, 677 A.2d 759 (1996);  In re Grand Jury Subpoena Duces Tecum, 143 N.J.Super. 526, 535, 363 A.2d 936 (Law Div.1976) (“a grand jury is ․ permitted wide latitude in ․ its investigation”).   Because the grand jury's task  is to inquire into the existence of possible criminal conduct and to return only indictments that are well founded, its “investigative powers are necessarily broad.”  Francis, supra, 385 N.J.Super. at 358, 897 A.2d 388.   Courts grant leeway to a grand jury's decision to conduct an investigation and issue subpoenas;  the grand jury itself is the “best judge of what evidence it deems necessary in the pursuit of its investigation.”   See United States v. Doe, 429 F.3d 450, 453 (3d Cir.2005).  “How much information is ‘enough’ is a matter for the judgment of the grand jurors and the prosecution rather than the court.”  Ibid.

There is no question here that the State intentionally withheld clearly exculpatory evidence from the grand jury, in addition to feeding the jurors with false, misleading, perjured and fabricated stories.  The State interfered impermissibly with the right of the grand jurors to perform an exhaustive investigation.  The indictment must be dismissed with prejudice due to the perjured testimony and the outrageous government conduct recounted above.

At the very least, the defendant requests an evidentiary hearing on these issues.

POINT VIII

THE ENTIRE INDICTMENT MUST BE DISMISSED WITH PREJUDICE DUE TO THE OUTRAGEOUS GOVERNMENT CONDUCT IN MISLEADING THE GRAND JURY

Defendant incorporates the arguments and authorities in Points I through VII and submits that the indictment must be dismissed with prejudice due to the outrageous government conduct in misleading the grand jury.  Specifically, during the grand jury presentation the prosecutor incorrectly and falsely advised the grand jurors that the defendant refused to pay taxes:

Q [PROSECUTOR, Walter the Lying Dewey]: 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; Da6; emphasis supplied).

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. 

The alleged taxes owed (although defendant disputed the taxes due to overvaluation of the home) were about $20,000.  On June 28, 2011, Judge Margaret McVeigh, to justify her illegal actions and to deny relief to the defendant, she stated that he did not pay taxes since 1993, which was not true, a false accusation.  Defendant only disputed the over-assessment of his property and he did pay all taxes from 1993 through 2005; then, after his property was damaged by the Ramapo River flooding, he paid about 50 percent of the taxes assessed, expecting that the Wayne Township will properly assess the flooded homes. 

In January 2013, Dorothy Kreitz, the Wayne Township Tax Assessor admitted that the properties are overvalued and that no assessment has been performed since 1995.  These statements were made by Dorothy Kreitz in a letter and it is available to this Court upon request or during hearings/testimony.  In fact, the home was assessed by almost $500,000 by Wayne Township and it was sold by the conspirators after they seized it in 2011 for $330,000.  This sale value represents the fair market value of the property and it is significantly lower than the $500,000 valuation assigned by Wayne Township, by at least 40 percent.  Only a 15 percent variance is allowed in the home valuation, yet here we have a 40 percent overvaluation.  Thus, no taxes were legally due. 

Then these criminals conspired with Robert Del Vecchio, American Tax Funding and others to take Dr. Stephanatos’ home by force, using two corrupt, lying sheriff employees, Lucas and D’Agostino and lying to Judge McVeigh that Dr. Stephanatos did not pay taxes since 1993.  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 Dr. Stephasnatos had not paid taxes since 1993 (the fraudulent statement made by the conspirators and Judge McVeigh), then the amount of taxes due would have been $200,000 and more.  However, the amount of disputed taxes was $20,000 or so.

By falsely advising the grand jurors that the defendant did not believe he had to pay taxes, he depicted the defendant as a criminal and as an individual who the grand jurors (who all pay taxes) would resent.  It was part of the campaign against Dr. Stephanatos to depict him to the grand jurors as a violent person (that he had ammunition in his front porch- these have been proven to be lies, fabrications); refused to pay taxes (more lies, fabrications), and then ambused (these liers gave the impression that I had my door open and that somehow I was waiting there to assault the two lying sheriff employees – total fabrication and lies as computer records show that I was in my office computer doing business and sending e-mails), threaten the two “poor” heavily-armed sheriff employees (more lies and fabrications) with a gun that can only fire one shot at a time (the hunting rifle that the lying Lucas claimed he saw in the hands of the defendant).

These “poor” Sheriff employees, who were heavily armed themselves, claim that they run like chicken when they saw the big, ugly, armed (with a single-shot rifle) Dr. Stephanatos and fell down injuring themselves– what a bunch of losers and liars.  These are the same losers, who have been shooting and killing citizens left and right, even shooting and killing children that carry plastic guns and shooting people in their back and then plant evidence and claim self-defense.  And somehow, these heavily armed, trained killers just run away scared shitless when they saw Dr. Stephanatos without saying anything and without Dr. Stephanatos ever saying anything to them?  Their stories simply do not add up.  This is only possible if there is no eye-to-eye or any other contact between the parties, as Dr. Stephanatos has indicated.

The indictment must be dismissed with prejudice due to the perjured testimony and the outrageous government conduct recounted above.

At the very least, the defendant requests an evidentiary hearing on these issues.

POINT IX

THE DEFENDANT IS ENTITLED TO THE PERSONNEL FILES AND MEDICAL HISTORY FILES INVOLVING ANY OF THE LAW ENFORCEMENT OFFICERS INVOLVED IN THIS MATTER (PARTICULARLY THE PERSONNEL FILES OF OFFICERS LUCAS AND D’AGOSTINO); AT THE VERY LEAST, THERE SHOULD BE AN IN CAMERA REVIEW

Defendant has moved for “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.  At the very least, there should be 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’ credibility is tested.” State v. Harris, 316 N.J. Super. 384, 397 (App. Div. 1998). 

Here, Lucas has offered at least seven different versions of the events of June 28, 2011 without having been cross-examined; several significant contradictions exist between what he said and what he wrote or what other officers wrote or what D’Agostino wrote/said or what electronic/phone records show.  Therefore, his credibility and truthfulness is in question.  The Court should note the ancient maxim: False in one, false in all (or you lie, you lose).  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).

Furthermore, Lucas may have suffered sport-related or similar injury prior or right after the June 28, 2011 events.  Finally, but not least, Lucas was hired by the conspirators Robert Del Vecchio and ATF, was acting as agent-in-fact of these conspirators and has exhibited bias based on the fraudulent statements he uttered during the grand jury proceedings that were hearsay of what these two conspirators had told him about the defendant.  Defendant believes that Lucas lied because he was agent-in-fact for the conspirators Robert Del Vecchio, ATF, he was biased against the defendant, and he had ulterior motives as he may have been part of the conspiracy (he may belong to the Italian Mafia Tax Lien (IMTF) organized crime in New Jersey), or he was trying to cover up his illegal actions (lack of Warrant, Illegal Peering, Illegal Search, and so on).

Same holds true for D’Agostino.

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, following leave to appeal from a post-judgment of conviction 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 the arrest. Harris, supra, 316 N.J. Super. at 391 that the arresting officer was a drug user, id. at 399; that the arresting officer had been suspended from the police department, id. at 394; and a newspaper had reported that the police department was investigating the arresting officer for alleged shakedowns of other individuals. Ibid.  Because 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. Id. at 399.

In the case at bar, the personnel files and the medical history files of Officers Lucas and D’Agostino should be disclosed to the defense.  At the very least, there should be an in camera review.

POINT X

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

In Paragraph 9 of the Omnibus Motions, 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) (purpose of a Driver hearing is to be sure that the recording device was capable of taking the statement, that its operator was competent, that the recording is authentic and correct, and that no additions or deletions have been made).

POINT XI

THE INDIVIDUALS WHO STOLE DEFENDANT’S HOME UNDER THE GUN POINT HAVE PARTICIPATED IN A CONSPIRACY TO RIG BIDS AND TO DEFRAUD HOMEOWNERS OF THEIR PROPERTIES BY VIOLATING A NUMBER OF STATE LAWS, INCLUDING THE STATE’S FORCEFUL ENTRY AND DETAINMENT LAWS AND BY DEFRAUDING THE COURTS BY PROVIDING FRAUDULENT CERTIFICATIONS

We have discovered a major conspiracy against thousands of homeowners, including myself by the now convicted felon Robert Del Vecchio, American Tax Funding, and others.

A Passaic County residence and prominent lawyer, Robert Del Vecchio, Sr. has pleaded guilty to a conspiracy to violate state and federal antitrust laws and he was sentenced on January 14, 2014.  This information has become available from the U.S. Department of Justice and the FBI.  It can be found here:

Plea agreement between Robert Del Vecchio and United States http://www.justice.gov/atr/cases/f301700/301717.pdf

U.S. Department of Justice Announcement: Two New Jersey Investors Plead Guilty for Their Roles in Bid-rigging Schemes at Municipal Tax Lien Auctions http://www.justice.gov/opa/pr/2013/September/13-at-1097.html

Six Investors Indicted for Their Roles in Bid Rigging Scheme at Municipal Tax Lien Auctions in New Jersey
Investigation Has Yielded 20 Charges to Date

U.S. Department of Justice November 19, 2013

Office of Public Affairs (202) 514-2007/TDD (202) 514-1888

Source: http://www.fbi.gov/newark/press-releases/2013/six-investors-indicted-for-their-roles-in-bid-rigging-scheme-at-municipal-tax-lien-auctions-in-new-jersey

http://www.northjersey.com/hawthorne/Hawthorne_man_spared_prison_for_role_in_a_scheme_to_rig_bids.html?page=all

This extraordinary factual and legal information will change the course of this litigation because it proves as I have been saying all along that these convicted criminals conspired to deprive me of my property and violated a host of state and federal laws, including the New Jersey Constitution. 

CONSPIRATORIAL ACTS OF THE DEFENDANTS TO FORCE DR. STEPHANATOS OUT OF HIS HOME AND PLACE OF BUSINESS

I will include below a summary of the subsequent conspiratory acts of the defendants so that the Court sees the magnitude of the criminal activities of American Tax Funding, Matthew Marini, Robert Del Vecchio, Justin Weisenbacher, Brian Lynch, and others.  It is possible that Lucas may have been part of the Italian Mafia Tax Lien organized conspiracy and he has been acting as agent of the organized group of criminals.

Dr. Stephanatos was not personally liable for the property taxes and no personal judgment could have been issued against him.  The New Jersey law has been clearly established for many years: "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).   Dr. Stephanatos 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 municipally 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.  Unless of course a corrupt or incompetent judge like Margaret McVeigh allows them to do so. – This is what the defendant in fact charges.

What these defendants did, then, was to treat the real estate taxes as a personal debt and they used the “in personam” foreclosure proceedings (with the blessing of the corrupt or incompetent Judge McVeigh 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 defendants 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 defendants are thoroughly unlawful and also prohibited by the Public Use Clause of the Federal and State Constitutions.  These irregularities also raise issues of Taking of Private Property without Due Process of Law, i.e., a Due Process 14th Amendment violation.

The Public Use Clause provides that “one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation is paid.” Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984) (quoting Thompson v. Consol. Gas Corp., 300 U.S. 55, 80 (1937)). Because a private taking cannot be constitutional even if compensated, “[a] plaintiff that proves that a government entity has taken its property for a private, not a public, use is entitled to an injunction against the unconstitutional taking, not simply compensation.” Carole Media LLC v. N.J. Transit Corp., 550 F.3d 302, 308 (3d Cir. 2008).   Here, there is no dispute that Plaintiff’s property was taken for a private purpose;

The defendants knew that the above law and other state statutes protect defendant’s right to remain in actual possession of his residence.  Specifically, N.J.S.A. 2A:39-7 says that title shall not be an issue since Plaintiff 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.  These defenses would have been used by the defendant in front of a Law Division Judge.  But the conspirators intentionally bypassed these statutory provisions and used a fraudulent self-certification by the conspirator Robert Del Vecchio who obtained an ex-parte Writ of Possession from a clerk of Mercer County.  These are some very serious accusations by the defendant, suggesting that he was entrapped and/or placed under duress by the criminal conspiracy of Del Vecchio, ATF and others.

The Court should note that these convicted criminals used the mortgage foreclosure procedures that are not applicable to a tax lien foreclosure case.  This is very critical for the Court to understand and it is consistent with the four (4) cases cited earlier ruled upon by the Federal Judges of the District of New Jersey.

The Del Vecchio’s (the father of Robert Del Vecchio has been convicted for participating in this conspiracy, lost his law and real estate license and was fined hundreds of thousands of dollars) committed a number of other crimes against Dr. Stephanatos: by making a fraudulent certification to a Mercer County Clerk in May 2011 that Dr. Stephanatos had no possessory interests in his home; he then hired his friends Passaic County officer Lucas and officer D’Agostino to perform an unlawful eviction from Dr. Stephanatos’ home as no Warrant for Removal was obtained as is mandated by New Jersey law (N.J.S.A. 2A:39-1et seq. and N.J.S.A. 2A:18-57) [6]and committed a forceful entry in violation of the New Jersey Forceful Entry statutes, he lied to judge McVeigh that Dr. Stephanatos owed $65,000 in taxes without performing an accounting, without revealing that they charged the Plaintiff with unlawful interest rates and penalties and the forfeited premium of $20,000 in violation of the New Jersey Tax Sales Law, without revealing to the Judge McVeigh that Dr. Stephanatos was in dispute with Wayne Township due to the over-assessment of his property[7] and that the taxes allegedly “owed” (Dr. Stephanatos 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 (such as that Dr. Stephanatos had not paid taxes since 1993).  These were all false statements made by Del Vecchio to prejudice the courts against Dr. Stephanatos and to defraud him of his property; and unfortunately he was successful, with the help from the potential Italian Mafia member, Lucas. 

Finally, there was no judicial sale of Dr. Stephanatos’ property and there was no “price”, similar to what the 3 federal judges have found in the case listed earlier.  Dr. Stephanatos fully owned his residence that had been valued by the municipality at almost $500,000.  The defendants ATF and Del Vecchio, also included the $20,000 premium in the amount they asked for redemption.  As was reported earlier, under New Jersey law, upon redemption the municipality must return the premium to the bidder, and if the lien is not redeemed within five years the premium is surrendered to the municipality.  Under no scenario would the property owner be responsible for payment of the premium upon redemption or otherwise.  Here, because the certificate was not redeemed within the 5 year period, they forfeited the premium.  To recoup this loss, they then included it in the redemption amount.

By knowingly including an improper amount as a charge asserted in a proof of claim, the lien holder must be found to have violated a certain section of the New Jersey statute on lien enforcement, and this Court must respond by disallowing the claim and avoiding the lien altogether.  See In re Princeton Office Park, __ B.R. __, 2014 WL 341089 (Bkrtcy. D.N.J.).

PLAINTIFF HAD FILED TWO APPEALS FROM JUDGE JACOBSON AND MCVEIGH DECISIONS UNTIL THE APPEALS COURTS RULE BUT THESE CRIMINALS HIRED THE SHERIFF AND FORCED ME OUT OF MY RESIDENCE AND PLACE OF BUSINESS.

In June 2011, Dr. Stephanatos had filed a suit to vacate the tax deed (Passaic County, Law Division L-2973-11).  Dr. Stephanatos even sent a letter to the judges, to the co-conspirators Robert Del Vecchio, Matthew Marini and the sheriff that appeals are pending and they in fact responded to the letter, acknowledging the appeals.  That suit to vacate the tax deed was filed within the statutory period of three months.  Due to the refusal of McVeigh to stay the proceedings for the court of Appeals to review what they (McVeigh et al) have done, the fraudulent issuance of an ex-parte writ of possession and the wrongful interference by the sheriff and American Tax Funding, LLC of Dr. Stephanatos’ legal rights, the Law Division did not hear that lawsuit.

Meanwhile, Dr. Stephanatos 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, Dr. Stephanatos applied for a stay from the foreclosure judgment by petition Judge Jacobson, to ensure that a higher court and/or a federal court hear his appeals.  Realizing that McVeigh will not rule according to the state law, and since she is an equity judge and not a law division judge, I did not petition to her for a stay formally, but on an informal basis until I apply to a law division judge.  I filed a suit to vacate the tax deed (Passaic County, Law Division L-2973-11) and petitioned at the same time to stay the actions of Robert Del Vecchio and ATF.  .At that time, McVeigh refused to stay the taking of my property by force, despite the fact I was keep telling them that what they are doing is illegal.  The sheriff officers and McVeigh were aware that appeals and lawsuits were pending; they also knew that state law, allows Dr. Stephanatos to stay in his home, because he has been using the home as his residence continuously since 1995 (see 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”) and that is why they acted with haste and fraud and criminal intent to deprive Dr. Stephanatos of his home and his business.  There was no reason for the defendant to be forced out of his home, as the conspirators could have sold it with him being still in there.  New Jersey Law says that a tenant cannot be moved out of his home just for the foreclosure owner obtains a better value.  This behavior shocks the conscience, implicating a substantive due process violation.  This violation occurred on June 28, 2011.

It is crucial to report to the Court that the Sheriff and the Passaic County provide as a defense to the federal complaint that

“Plaintiff never appealed the underlying Court Orders which ordered him to vacate the subject premises, therefore, the defendants acted within their purview under the cover of law - regarding the underlying events;”

This defense is obvious not valid, considering that Dr. Stephanatos had filed several appeals and had in fact notified the Sheriff of the pendency of such appeals.  Furthermore, there have been no removal orders from Law Division Judge; just a Writ of Possession from a clerk of Mercer County based on the fraudulent self-certification of the conspirator Robert Del Vecchio.  The sheriff and its employees also acted as agents-in-fact for the conspirators and were paid by the conspirators.  Thus, the motivation for the actions of the Sheriff and its employees is highly suspicious.  Lucas may also be part of the Italian Mafia Tax Lien organized crime group.

Judge Margaret McVeigh then violated a number of state laws and NJ Court Rules and other legal procedures 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 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).

Despite the lack of any fact-finding or any bench or jury trial by the incompetent Judge McVeigh (all that in violation of New Jersey law and legal president), McVeigh forward the case to a Mercer County Judge.  On May 13, 2011, the Honorable Mary C. Jacobson, P.J.Ch., entered a final judgment against Dr. Stephanatos in favor of American Tax Funding, LLC (“ATFH”). (Final Judgment annexed at Da44-46, Motion to Change Venue).  This final judgment contains the language “This judgment shall not affect the rights of any person protected by the New Jersey Tenant Anti-Eviction Act (N.J.S.A, 2A:18-61.1 et seq.)” (Da45).  The significance of this clause is discussed in this brief, infra.

Robert A. Del Vecchio is the attorney for ATF, LLC, and he submitted a Certification (filed May 13, 2011), stating, in part:

The aforementioned person is not protected by the provision of the Anti-Eviction Act (the “Act”), as enunciated in the New Jersey Supreme Court Case of Chase Manhattan Bank v. Josephson, since that Act applies to tenants and this defendant is the prior owner of the property.  His ownership rights were foreclosed upon in the above-entitled action. (Da48).

The Court should note that the convicted felon Del Vecchio cites a case that deals with mortgage foreclosure and has nothing to do with a tax lien case.  The Federal Judges of the District of New Jersey (see cases cited above) have already ruled to that effect, i.e., that tax lien cases do not protect the rights of the transferee and that they are subject to fraudulent conveyance lawsuits.  The significance of this statement by Robert Del Vecchio is that in addition to the fact that he cited mortgage foreclosure cases that are irrelevant in tax lien foreclosure cases, the judgment only covered ownership and not possession of the home of Dr. Stephanatos, who was also using his homestead as the place of business (Metropolitan Environmental Services, PC and Metropolitan Environmental Services).  Mr. Del Vecchio, in addition to violating federal law (the conspiracy with ATF to violate the Sherman Act) he also intentionally conspired with ATF and the Passaic County employees, including the incompetent McVeigh (failed to consider the full equity that defendant had in his home and failed to perform a bench trial or any fact finding of any kind in violation of court rules) to violate the possessory rights of Dr. Stephanatos.

Furthermore, the case cited by the criminal conspirator Del Vecchio pertains to mortgage foreclosure cases and not tax lien cases, as the Federal Judges in the District of New Jersey have ruled (see cases reported earlier).  Thus, his certification was outright fraudulent AND illegal as a matter of New Jersey law.

The judgment under the tax sale law was supposed to cover only ownership of a property and not possession.  In fact, Del Vecchio himself wrote in the Application for an ex-parte Writ that Dr. Stephanatos only lost the ownership rights – no possessory rights were ever lost by Dr. Stephanatos, as he was in possession of his property continuously, he did not owe any taxes due to the unlawful over-assessment of his property and since state law protected his possessory rights. See N.J.S.A. 2A:39-1.  On September 30, 2013, Del Vecchio pleaded guilty to conspiring to violate the antitrust laws of this state and the federal government’s.

Since Dr. Stephanatos was opposed to any person entering his homestead property and had communicated this to the sheriff and Del Vecchio, the possession of the property was supposed to be determined by a Law Division judge pursuant to N.J.S.A. 2A:39-1 that prohibits unlawful entry onto a residential property

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.

This process mandates the procurement of a Warrant of Removal.  Del Vecchio and the sheriff employees did not do that here, in a conspiracy to violate Dr. Stephanatos possessory and other legal rights.  In fact, these individuals have pleaded in the federal lawsuit that they were not aware that any appeal were pending and that all issues had been adjudicated, when in fact no issues had ever been adjudicated.  They used these excuses as a pre-text to intentionally violate Dr. Stephanatos’ possessory and other legal rights and caused him the loss of his business, his home and the destruction of his business and personal property.  The damages they caused him are into the many millions of dollars and that is the reason that Dr. Stephanatos was under such extraordinary duress during the day of the incident.  Government entrapment is also at play here.

Del Vecchio and ATF obtained only an ex-parte writ of possession, upon the self- certification of Del Vecchio that Dr. Stephanatos did not any possessory interests protected by the Due Process Clause and/or the Anti-Eviction Act or the Summary Dispossess Act.  This way, the Defendants managed to fool the sheriff to remove Dr. Stephanatos from his dwelling and place of business by force on June 28, 2011, WHILE APPEALS AND LAWSUITS WERE PENDING.

The sheriff knew of the practices of Del Vecchio and ATF; yet, the sheriff employees acted as agents for Del Vecchio and intentionally violated Dr. Stephanatos’ possessory rights, including a host of other offenses (trespassing, peering through windows, etc).  Dr. Stephanatos had informed McVeigh and the sheriff of these practices by Del Vecchio and ATF and had alerted the authorities (the sheriff, the governor, the local senator O’Toole, etc.) that these individuals are breaking a host of state and federal laws.  Dr. Stephanatos also filed appeals and suits to vacate the tax deed.  However McVeigh refused to stay the proceedings and this is a crucial fact that the jury will consider in their deliberations: 

·         why there was so much haste to remove Dr. Stephanatos from his residence and place of business? 

·         Why there was not a stay so that all these issues are adjudicated and the fraud of Del Vecchio, ATF and the Wayne Township is exposed?  A SIMPLE STAY OF THE PROCEEDINGS WOULD HAVE PREVENTED THE INCIDENT ON JUNE 28, 2011.  Now we have found out significant issues with what these conspirators and convicted criminals did and the violation of numerous laws of this state. 

The grand jurors were not allowed to hear Mr. Stephanatos’ 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, and the New Jersey Tax Sale Law.  Mr. Stephanatos initially hired Mr. 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 and outright lies.  But the prosecutors refused to allow us to present any exculpatory evidence to the grand jury.  Instead, they committed the above stated violations of state laws and procedures and committed the outrageous government misconduct and prosecutorial misconduct cited herein.

In the case at bar the indictment must be dismissed with prejudice due to the outrageous government conduct recounted above and in this brief, infra.

POINT XII

THE CHARGES UNDER The 2C:12-1b(9) statute MUST BE DISMISSED WITH PREJUDICE AS IT IS intended to protect LAW ENFORCEMENT officerS and not sheriff employeeS.  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 LAW ENFORCEMENT OFFICERS AND THEY TESTIFIED THAT THEY NEVER KNOCKED OR RANG THE DOOR BELL.  THE STATE FRAUDULENTLY CHARGED THE DEFENDANT UNDER 2C:12-1B(9) TO DEMAND AN ADDITIONAL $200,000 CASH BAIL TO TRY TO HOLD THE DEFENDANT IN JAIL.

This statute requires that the defendants knows that Lucas and D’Agostino were acting as law enforcement officers.  During their testimony, these two individuals testified that the defendant should have known that they are law enforcement officers because they were wearing uniforms.  This is totally wrong and requires a dismissal of these charges.  We explain our reasoning below:

The two sheriff employees did not wear the dark blue or black law enforcement uniforms and according to their testimony, they did not identify themselves as law enforcement and they did not have a mandatory Warrant for Removal.  In fact, they never claimed that they ever announced themselves, such as knocking at the door or ringing the door bell, as per their testimony.  They in fact testified that they were sheriff employees working to deliver documents (as they testified), not police officers performing a criminal investigation.  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 a police officer.  The 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 uniforms and they never announced themselves and as per their testimony, they never knocked or rang the doorbell.

We believe the 2C:12-1B(9) statute is meant to protect law enforcement personnel in the performance of their law enforcement duties; not to apply it to process server situations or to protect sheriff employees.  This is also shown in the self-defense statutes that state that the defense of home is not applicable in law-enforcement situations where the police officer is armed with a warrant.

These two sheriff employees were not performing a duty of a law-enforcement officers, that is “detection, apprehension, arrest and conviction of offenders against the laws of this State” as this was a civil matter, not a criminal matter.  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”.  These two individuals initially filed charges under section 2C:12-1b(4) (the person or sheriff employee section) and later they changed their charges to fall under 2C:12-1b(9)(law enforcement officer).  We need to find out as to why they changed their charges, as these two were sheriff employees working as process servers and not police officers doing “detection, apprehension, arrest and conviction of offenders against the laws of this State”.  We believe that they changed the charges to be able to collect an additional $200,000 in bail and to hold the defendant in jail.  This is unfortunately a very typical situation across the country where the prosecutor files charges based on wrong statutes and/or unsubstantiated charges to hold people in jail and to force them cut a plea deal.

They in fact did not have a Warrant for Removal as is mandated by New Jersey Law to allow them to enter a dwelling and remove a tenant.  The 2C:12-1b(9) statute is meant to protect law enforcement personnel in the performance of their law enforcement duties and they are not meant to cover sheriff officers in the performance of non-law enforcement duties.  This was a civil matter and 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”.

The sheriff has posted in his web pages they were agents of the plaintiff (ATF/Del Vecchio in this case).

As further proof that the statutes intended to protect law enforcement officers is a look at the statute 2C:12-1b(5).  This is the statute that addresses the assault on law enforcement officer or public employee, such a sheriff.   Under this statute, the assault upon a law enforcement officer is included under 2C:12-1b(5)(a): Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer.

By contrast the assault on a sheriff officer is included under section 2C:12-1b(5)(h): Any … sheriff, undersheriff, or sheriff’s officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.

Thus, the legislature has clearly distinguished between a law enforcement officer and a sheriff officer.  These two groups of employees were not meant to be considered one and the same.

I believe that this analysis conclusively proves that the statute 2C:12-1b(9) does not include sheriff employees, but it was intended to protect police officers in their law enforcement duties.  The state legislature would have most likely included the sheriff employees in this statute and not simply leave it open to interpretation or ambiguity.

These charges must be dismissed with prejudice for the reasons stated above.

POINT XIII

THE CHARGES UNDER THE N.J.S. 2C:17-2C STATUTE 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.” (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.”

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 is also fraudulent, as less than five people and less than five habitations were within 100 feet from defendant’s home.  The only person here are 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 employees and the conspirators.  Therefore, the corrupt Passaic County prosecutor, Walter Dewey, did not advice the grand jury regarding the “five or more people or damage to five or more habitations” requirement for this charge.  Of course, by now this Court should have become accustomed to expect the worst (i.e., lies and fabrications) from this and other Passaic County prosecutors.

Furthermore, defendant at no time was 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), and at no time did he barricade inside his home.  The media reports stated on June 28, 2011 that the sheriff told them that the defendant was armed with a “shotgun”.  However, no such weapon was ever found, as it was a fabrication by the sheriff and his employees to perform an illegal arrest and seizure and an illegal removal without having a Warrant for Removal.

The state never presented evidence that the defendant was barricaded

The stature requires that the defendant was barricaded inside his home.  This is false assertion and it is not supported by any facts presented by the sheriff or the prosecutor during the grand jury criminal proceedings.

I am providing the definition of the term “barricade” in accordance with a number of dictionaries:

Definition of “Barricade”:

1.            barricade - a barrier set up by police to stop traffic on a street or road in order to catch a fugitive or inspect traffic etc.

roadblock

barrier - a structure or object that impedes free movement

2.            barricade - a barrier (usually thrown up hastily) to impede the advance of an enemy; "they stormed the barricade"

barrier - a structure or object that impedes free movement

barricade

barrier, wall, railing, fence, blockade, obstruction, rampart, fortification, bulwark, palisade, stockade Large areas of the city have been closed off by barricades.

Source: http://www.thefreedictionary.com/barricade

to prevent access to by means of a barricade

Source:  http://www.merriam-webster.com/dictionary/barricade

Here, the two officers or the sheriff never presented evidence that the defendant had erected any barrier to prevent the advancement of the sheriff 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 did not have the requisite Warrant for Removal and no such “barricade” evidence has been presented by the sheriff during the grand jury proceedings.  On the contrary, according to the sheriff officers, the defendant’s door was wide open.  It should be noted that the door of the home is not considered a barricade.  Perhaps the sheriff employees wanted to say that the door was closed and this would of course contradict their statements that defendant’s door was open[8]; however, the door is not a barricade.  The State must make their mind regarding the door:  was it open or was it closed?  They simply cannot have it both ways (of course, this is New Jersey, and we are fully accustomed of the corrupt prosecutors and others). 

Only the video and audio recordings made by the sheriff will settle this issue once and for all (and will lead of course to the perjury conviction of Lucas and D’Agostino).  This Court should order the State to produce the video and audio recordings of the sheriff during June 28, 2011.

The defendant is concerned that due to the 4.5+ year delay in the case, all the evidence may have already been destroyed by the Sheriff.  Already the Sheriff has removed from his web pages all and every references to his process service.  Prior to June 28, 2011, the Passaic County Sheriff had prominently displayed the process service unit onto his web pages (stating there in 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”), while now he removed all and every reference to it.  We are deeply concerned about this potential cover-up and destruction of evidence.

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. (internal quotation marks omitted).

The Count 4 charge must be dismissed with prejudice due to the outrageous government conduct described herein in deceiving and misleading the grand jury.

CONCLUSION

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 R. FEINSTEIN, ESQ.

1135 CLIFTON AVENUE

CLIFTON, NEW JERSEY 07013

TEL: (973) 779-1124

FAX: (973) 779-9883

Attorney for Defendant

Basilis N. Stephanatos

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

SUPERIOR COURT OF NEW JERSEY CRIMINAL DIVISION, PASSAIC COUNTY DOCKET NO.  11002878 Indictment No. 11-09-00810-I Criminal Action ORDER DISMISSING THE INDICTMENT

THIS MATTER having been brought before the Court by defendant Basilis N. Stephanatos, in the presence of Assistant Prosecutor Peter M. Roby; and the Court having reviewed the parties’ written submissions; and having heard oral argument of counsel; and for good cause shown; 

IT IS on this ____ day of __________, 2016, 

ORDERED that defendant’s motion to dismiss the indictment with prejudice is hereby GRANTED.

________________________________________

Hon. Judge Miguel A. de la Carrera, J.S.C.

EXHIBIT A

STATE V. MICHAEL CAHILL (A-47-11) (068727) AND STATE OF NEW JERSEY v. JONATHAN E. DOWNS

STATE V. MICHAEL CAHILL (A-47-11) (068727)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)

State v. Michael Cahill (A-47-11) (068727)

Argued October 10, 2012 -- Decided April 1, 2013

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

The Court considers whether defendant Michael Cahill’s right to a speedy trial was violated, thereby requiring the dismissal the motor vehicle charge of driving while intoxicated (DWI).

On October 27, 2007, Cahill drove away from a bar where he was drinking with friends. He swerved to avoid a blocked traffic lane, crossed two lanes of traffic, collided with a police car, and injured the officer. At the police station, an Alcotest recorded a blood alcohol level in excess of the legal limit of .08. Cahill was issued tickets for DWI, reckless driving, consumption of alcohol in a motor vehicle, and possession of an open container. On  April 10, 2008, a grand jury returned an indictment for fourth-degree assault by auto. On September 19, 2008,  Cahill pled guilty to that charge. He was sentenced on November 14, 2008 to a one-year term of probation, fines, penalties and assessments. By letter the same day, the prosecutor notified the municipal court administrator that the motor vehicle charges, including DWI, were returned to the court and that defendant had waived double jeopardy.

Sixteen months later, on March 17, 2010, Cahill received a letter from the municipal court stating that the motor vehicle tickets were listed for trial in April. Cahill’s attorney promptly filed a motion to dismiss the charges claiming that the delay denied Cahill his right to a speedy trial. Cahill argued that the delay, whether calculated  from the date of arrest (twenty-nine months) or the date of sentence on the indictable offense (sixteen months), was egregious. Although Cahill did not claim that his ability to defend the charges was prejudiced, he explained that the anticipated loss of his driver’s license caused him to limit his employment searches to short-term positions or positions in locations that did not require him to drive to work, and that he had surrendered a job offer that would have required him to drive. He also asserted that he eventually altered his search to seek a permanent position because he believed the prosecutor had abandoned the charges. Once he received the trial notice, he returned to seeking short-term jobs with lower wages. The State responded that the delay was not uncommon for DWI cases, and the municipal prosecutor argued that he had no record of a demand from Cahill to set a trial date and that Cahill had retained his driving privileges. The municipal judge denied the motion, finding the delay lengthy but not as lengthy as in other cases. Although the judge considered the delay unexplained and attributed it to the negligence of personnel, he found Cahill’s assertions of prejudice unsupported by evidence and declined to give weight to his claims of anxiety. Cahill entered a conditional plea to the charge of DWI. His driver’s license was suspended for one year and he was ordered to attend the Intoxicated Driver Resource Program.

Cahill filed an appeal in the Law Division. The Law Division judge reversed the decision and vacated the guilty plea and DWI sentence based on the four-factor test identified by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). The court measured the delay from the sentencing date on the indictable offense to the date Cahill received the notice of trial in the municipal court (sixteen months) and found it excessive based, in part, on a 1984 Directive by Chief Justice Wilentz that established sixty days as the recommended maximum period for the disposition of a DWI charge. The court held that prejudice can be found from employment interruptions, anxiety, financial drain, and other circumstances, and it accepted Cahill’s claim that the delay caused him anxiety and financial harm. Finally, the court found that it would be counterproductive to expose Cahill to additional sanctions because he had satisfied the requirements of the sentence imposed in 2008. The Appellate Division affirmed, holding that the Law Division judge properly analyzed and applied the Barker factors.  The Supreme Court granted the State’s petition for certification. 208 N.J. 601 (2011).

HELD: Applying the four-factor analysis set forth by the United States Supreme Court in Barker v. Wingo, the sixteen-month delay between the remand of the driving-while-intoxicated charge to the municipal court and the notice of trial deprived defendant Michael Cahill of his right to a speedy trial and the charge must be dismissed.

In 1967, the United States Supreme Court held that the right to a speedy trial, guaranteed by the United States Constitution, was a fundamental right applied to the states by the Due Process Clause of the Fourteenth Amendment.  In 1972, in Barker, the United States Supreme Court established a four-factor balancing test to evaluate claims of speedy trial violations. It directed courts to consider the length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant. The Court declined to identify a deadline after which a charge would be subject to dismissal. It also did not require that a defendant demand a speedy trial or waive the right.

Instead, the Court directed a case-by-case application of the four factors. With regard to the first factor, the Court held that a delay may be presumptively prejudicial and thereby trigger consideration of the other factors. The length of the delay that may be considered presumptively prejudicial depends on the circumstances of the case, including the nature of the charged offense. Once a defendant asserts a violation of the right to a speedy trial, the government is required to identify the reason for the delay.  In assessing prejudice, the interests being protected are the prevention of oppressive incarceration, minimization of anxiety attributable to the unresolved charge, and limitation of the possibility of impairment of the defense. All factors are related, requiring a balancing. (pp. 11-16)

The right to a speedy trial extends to quasi-criminal matters pending in the municipal courts, including DWI charges. In addition to the Barker analysis, this Court has adopted various rules and directives governing prompt disposition, but it has declined to set a deadline after which the charges must be dismissed.  Even the sixty-day period announced in 1984, and relied on by the Law Division judge in this case, was described as a goal rather than a bright-line rule. The Court reaffirms its adherence to the four-factor Barker analysis, recognizing that the facts of an individual case are the best indicators of whether a right to speedy trial has been violated. (pp. 16-24)

Cahill was charged with an indictable offense arising out of the October 27, 2007 incident. Because prosecution of the DWI charge prior to resolution of the indictable offense could have resulted in double jeopardy and the dismissal of the more serious charge, the State moved promptly. Cahill pled guilty to the indictable offense on September 19, 2008, and the court imposed sentence on November 14, 2008. The eleven-and-one-half-month gap between the initial charge and disposition of the indictable offense was reasonable. However, sixteen months elapsed between remand of the DWI charge to the municipal court and the time Cahill received notice of the first trial date, which is long enough to trigger consideration of the remaining Barker factors. The DWI charge was a straightforward quasi-criminal offense with uncomplicated legal issues and no witness-availability problems and the State offered no explanation for the delay—two factors that weigh against the State. Cahill did not take any action to trigger a trial after the remand, but a defendant does not have an obligation to bring himself to trial and Cahill promptly filed a motion after receipt of the trial notice. Although failure to assert the speedy trial right is a factor that must be considered, it does not counterbalance the lengthy and unexplained delay in this case. Finally, Cahill limited his employment options in anticipation of prosecution, and any person would experience anxiety from the existence of a pending and long-unresolved charge, particularly one that would have a dramatic effect on daily activities and the ability to earn a living. After balancing the factors, the Court concludes that the extensive and unexplained delay, coupled with the generalized anxiety and personal prejudice occasioned by the protracted resolution of this matter, violated Cahill’s right to a speedy trial. (pp. 24-29)

Administrative Directive #04-11, adopted in 2011, requires that the Superior Court dispose of all parts of a case before it, including municipal court matters, unless there is a compelling reason otherwise. Although there will be instances that require motor vehicle charges to be resolved separately, the Court declines to adopt a try-or-miss rule. It also cautions that a judge applying the Barker analysis must take into account the effects of the State v. Chun order addressing the scientific reliability of the Alcotest. (pp. 29-31)

5. On balance, the factors fall in favor of Cahill’s claim that, in this case, the delay deprived him of his constitutionally-guaranteed right to a speedy trial. (pp. 31-33)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, HOENS and PATTERSON

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STATE OF NEW JERSEY v. JONATHAN E. DOWNS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN E. DOWNS,

Defendant-Appellant.

February 14, 2014

Submitted December 17, 2013 Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2012-04.

Glenn R. Cochran, attorney for appellant.

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Laura Kotarba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jonathan E. Downs appeals the November 29, 2012 Law Division order affirming the municipal court's denial of his motion to dismiss outstanding charges on speedy trial grounds. We reverse.

On April 13, 2012, defendant entered a conditional plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50, reserving his right to pursue this appeal. Defendant was charged with DWI on February 2, 2010, and also charged with reckless driving, N.J.S.A. 39:4-96, careless driving, N.J.S.A. 39:4-97, parking in a no-parking zone, N.J.S.A. 39:4-138(g), operation of a motor vehicle with a controlled dangerous substance, N.J.S.A. 39:4-49.1, and possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1). Defendant was arraigned February 4, 2010.

The indictable offense was dismissed February 26, 2010. Defendant had requested discovery from the Hamilton Township Police Department (HTPD) earlier, on February 17, 2010. On March 3, 2010, HTPD notified defendant that it was not authorized to release the information and directed him to the Mercer County Prosecutor's Office. Upon contacting that office, on March 22, 2010, defendant was advised of the dismissal. He again requested discovery from HTPD, following up with a phone call on March 31.

Because the file could not be located, however, discovery was not provided until July 2011, some sixteen months later. On July 13, 2011, the municipal court notified defendant of his pretrial conference. Defendant expressed his intent to file a motion to dismiss, based on speedy trial, at the subsequent court appearance on August 3, 2011. The application was filed October 4, 2011. After analyzing the relevant factors as to speedy trial applications pursuant to Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 101, 117 (1972), the municipal court judge denied the motion, concluding defendant had not shown any prejudice.

The Law Division judge in a written decision found that the 531-day delay, albeit prolonged, was not "by itself . . . determinative." Characterizing the reason for the delay as "somewhat uncertain," the Law Division judge ultimately attributed it to the lack of attention by both parties. The judge also asked whether the reason for delay favored either party, finding it did not. He agreed that defendant made a timely assertion of his right to speedy trial. Because the judge found that defendant suffered minimal prejudice as a result of the delay, dismissal was unwarranted. The delay was not initiated by the State, but "due to the fact that the case was placed in transit status, and its location was unknown." The judge therefore concluded defendant essentially acquiesced in the failure to prosecute by failing to make further discovery or status inquiries following his March 31, 2010 phone call. That fact, coupled with the minimal prejudice suffered by defendant, "compel[led] the conclusion that [defendant's] motion to dismiss for violation of his right to a speedy trial must be denied."

State v. Cahill, 213 N.J. 253 (2013), was not decided until some months after the Law Division's decision. Unlike the prior tribunals, we have the benefit of that analysis, significant because the facts are so similar.

In that case, like in this one, the defendant was charged with various motor vehicle offenses in addition to an indictable matter. Id. at 257. The defendant eventually entered a guilty plea to the indictable charge, and the related traffic offenses were returned to the municipal court. Id. at 259. No further action was taken for sixteen months between defendant's sentence date in the Law Division on the indictable charge and his receipt of the trial notice in the municipal court. Ibid.

In Cahill, the Supreme Court noted that "[o]nce a defendant asserts a violation of his right to a speedy trial, the government is required to identify the reason for the delay." Id. at 266. A "neutral reason," such as the one in this case where the State has been merely negligent in its management of the file, is also to be weighed against the government. Ibid. Ultimately it is the government's responsibility "to prosecute cases in a timely fashion." Ibid. Significantly, the Court noted that a defendant does not have an obligation to bring himself to trial; in other words, he or she need not engage in extraordinary efforts to bring the matter to a close. Ibid.  In every case, individual examination of the circumstances must be made, as no "rigid bright-line try-or-dismiss-rule" has been adopted. Id. at 270.

In Cahill, the sixteen months that elapsed from the remand to the municipal court until notice of the first trial date was found to be a significant delay triggering consideration of the last three Barker factors. Id. at 273. The first requirement was met on an almost per se basis, namely, that the delay was excessive. Ibid. A DWI charge is straightforward; therefore a sixteen-month delay needed to be weighed against the State. See ibid.

That defendant did not assert his right to a speedy trial until after receiving the pre-trial notice was not weighed against him. Id. at 274. In fact, the Court noted that defendant's silence did not "counterbalance the lengthy and unexplained delay in bringing th[e] matter to a conclusion. Sixteen months [wa]s a long time to dispose of a driving-while-intoxicated case." Ibid.

The Court also noted that the final Barker factor, prejudice to the defendant, did not require actual evidence of prejudice. As the Court said, a judge should assume any person involved even in a quasi-criminal matter such as a DWI "would experience some measure of anxiety by the existence of a pending and long-unresolved charge. This [wa]s particularly true when one of the sanctions, a license suspension, would have a dramatic impact on defendant's daily activities and ability to earn a living." Id. at 275. On balance, the Court opined "that the extensive and unexplained delay, coupled with the generalized anxiety and personal prejudice occasioned by the protracted resolution of this matter, require[d] a finding that the State violated defendant's right to a speedy trial." Ibid. The charge was dismissed. Id. at 276.

The Cahill analysis is dispositive given the factual similarities between the two situations. There is little difference between the Court's consideration of the Barker v. Wingo factors in Cahill and any assessment of the factors in defendant's situation. If anything, in this instance, defendant more actively attempted to bring the matter to an end. He requested discovery around the time the indictable charge against him was dismissed, to no avail. Despite his best efforts, he was put off and shuttled between the HTPD and the Mercer County Prosecutor's Office. Misplacing a DWI file is not an adequate reason for a sixteen-month delay. Accordingly, we reverse the finding of the Law Division judge and dismiss.

Reversed and remanded for entry of a judgment in accordance with this decision.

EXHIBIT B

LETTER FROM CARL HERMAN TO PASSAIC COUNTY ASSISTANT PROSECUTOR

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[1] N.J.S.A. 2A:39-1 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; 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.

[2] Tenant at Sufferance

Tenant who stays in an apartment after her tenancy has ended without permission from the landlord.

[3] Plaintiff had filed a suit to vacate the tax deed (Passaic County, Law Division L-2973-11).  That suit was filed within the statutory period of three months.  Due to the fraudulent issuance of an ex-parte writ of possession that is applicable to mortgage foreclosure cases and not tax lien cases, and the wrongful interference by the defendants of Plaintiff’s legal rights, the Law Division did not hear that lawsuit.

In Bardon v. Land & River Improvement Co., 157 U.S. 327 (1895), the U.S. Supreme Court said that even after the expiration of the statutory period, the deed could be attacked on the ground of want of power to levy the taxes and the power to sell by reason of payment of taxes, lack of jurisdiction in the taxing officers, or the like.  Bardon, supra at 334. 

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

[4] Robert Del Vecchio, Sr has pleaded guilty to a felony charge filed by the U.S. Department of Justice in Newark, New Jersey on September 30, 2013.

[5] New Jersey Constitution, ARTICLE I

                                    RIGHTS AND PRIVILEGES

Par. 1. All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness. 

[6] The Court should note that these criminals used the mortgage foreclosure procedures that are not applicable to a tax lien foreclosure case.  This is very critical for the Court to understand.

[7] Plaintiff’s residential property had been damaged by flooding along the Ramapo River and had lost a significant portion of its value.  The Municipal Defendants had over assessed Plaintiff’s property by 40 percent, exceeding the 15 percent over assessment allowance.  Therefore, the taxes assessed onto Plaintiff’s property were void ab initio as a matter of New Jersey Law.

[8] Dr. Stephanatos has insisted 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 Fourth Amendment federally-protected rights.  The state has admitted in the criminal court proceedings before Judge Filko that the two sheriff officers did not have a Warrant and they were illegally attempting to remove him from his dwelling while working as agents for the convicted criminals and conspirators Robert Del Vecchio, ATF, et al.

Defendant has also alleged that these two sheriff officers conspired, and falsified their reports and testimonies and claimed that defendant’s door was wide open.  In any event, defendant’s door was either open or closed, but a door is not considered a barricade.