EXPLOSIVE: PASSAIC COUNTY SHERIFF OFFICERS (LUCAS AND D'AGOSTINO) COMMIT PERJURY DURING GRAND JURY TESTIMONY AND PASSAIC COUNTY IN NEW JERSEY COMMITS EGREGIOUS PROSECUTORIAL MISCONDUCT TO COVER THEIR ILLEGAL AND UNCONSTITUTIONAL ACTS.
The
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 model jury instructions include the following “false
in one – then false in all” instruction:
If you believe that
any witness or party willfully or knowingly testified falsely to any material
facts in the case, with intent to deceive you, you may give such weight to his
or her testimony as you may deem it is entitled. You may believe some of it, or
you may, in your discretion, disregard all of it.
See State v. Ernst, 32 N.J. 567, 583 (1960), State
v. D'Illopito, 22 N.J. 318, 324 (1956), State v. Sturchio, 127
N.J.L. 366, 369 (Sup. Ct. 1941), State v. Samuels, 92 N.J.L. 131, 133
(Sup. Ct. 1918).
We believe that this instruction is very pertinent here,
as the stories told and written by the State witnesses and the Passaic County
prosecutors are simply false, unbelievable and outright falsities that intended
to deceive the grand jurors and prejudice the jurors against the defendant.
For the foregoing reasons and authorities cited, the
defendant Basilis N. Stephanatos respectfully submits that his motions for dismissal
of the indictment with prejudice must be granted. The defendant’s motion for the release of
personnel files and all videotaped, audiotaped and written (the Incident
Reconstruction Report) evidence should also be granted. Defendant also requests the specific relief
delineated in the Omnibus Motions, including the cross examination of Lucas and
D’Agostino to further prove to this Court that these two individuals committed
perjury and intentionally violated the civil rights of the defendant. Cross-examination of Walter Dewey should also
be allowed by this Court, to further substantiate the charges of Prosecutorial
Misconduct.
Respectfully submitted,
___________________________________
Miles Feinstein, Esq.
Dated: November 5, 2015
////////////////--------------------------///////////////////////////
MILES FEINSTEIN, ESQ.
1135 CLIFTON AVENUE
CLIFTON, NEW JERSEY 07013
Attorney ID #: 233611966
Attorney for Defendant
Basilis N. Stephanatos
STATE OF NEW JERSEY
Plaintiff,
v.
BASILIS N. STEPHANATOS,
Defendant
|
SUPERIOR
COURT OF NEW JERSEY
LAW
DIVISION - PASSAIC COUNTY
Indictment
No. 11-09-00810-I
Criminal Action
NOTICE OF OMNIBUS
MOTIONS
|
TO: Passaic County Prosecutor’s Office
401
Grand Street
Paterson,
New Jersey 07505
Attn:
Assistant Prosecutor Peter M. Roby
PLEASE TAKE NOTICE that on December 9, 2015, at 9:00AM or
as soon thereafter as counsel can be heard, Miles Feinstein, Esq., attorney for
the defendant, Basil N. Stephanatos, shall move before the Honorable Miguel A. de
la Carrera, J.S.C., at the Passaic County Court House, Paterson, New Jersey,
for the following:
1. An Order
dismissing the indictment with prejudice because the State never informed the grand
jury that the Passaic County Sheriff failed to obtain a mandatory Warrant of
Removal in violation of New Jersey law for entry into dwellings (see N.J.S.A. 2A:39-1 Unlawful entry prohibited);
misled and lied to the grand jury thereby prejudicing the grand jury against
the defendant regarding the commercial instrument located on the front porch of
defendant’s place of business; elicited damaging false testimony from witnesses;
did not inform the grand jurors that defendant’s property was impermissibly
over-assessed and no taxes were legally due; failed to provide to the grand
jury exculpatory evidence (emails and phone records) obtained from defendant’s
computer clearly negating necessary elements of the alleged offenses and
proving that two important persons involved in the matter, Sheriff’s officers Lucas
and D’Agostino had lied; did not provide clearly exculpatory evidence to the
grand jurors refuting the allegations of the witnesses and/or negating elements
of the alleged offenses; the State did not inform the grand jury that prior
Court rulings pertinent to the matter violated N.J. statutes and N.J. Court rules in accordance with Royal Tax
Lien Servs., LLC V. Morodan, Docket No. A-6030-12T1 (N.J. Super. App. Div.
Jul 03, 2014), I.E.'s, L.L.C. v. Simmons, 392 N.J. Super. 520, 537 (Law Div.
2006), Ronan v. Adely, 182 N.J. 103, 110-11 (2004); Cameco, Inc. v.
Gedicke, 157 N.J. 504, 509-10 (1999); Kas Oriental Rugs, Inc. v. Ellman,
407 N.J. Super. 538, 562-63 (App. Div.), certif. denied, 200 N.J. 476 (2009);
and that Judge Margaret McVeigh failed to consider the full equity that
defendant had in his home in direct violation of New Jersey case law in
accordance with Royal Tax Lien Servs., LLC V. Morodan, supra.
2. An Order
dismissing the indictment with prejudice because the more than four years case
delay to this point deprived the defendant of his constitutionally-guaranteed
right to a speedy trial causing severe economic and non-economic hardship. Barker v. Wingo, 407 U.S. 514, 530, 92
S. Ct. 2182, 2192, 33 L. Ed. 101, 117 (1972), State v. Cahill, 213 N.J.
253 (2013).
3. An Order
dismissing the indictment with prejudice as the grand jury presentation is
fatally flawed as no definitions as to culpability, i.e., “purposely”,
“knowingly,” “recklessly” and “negligently” were provided to the grand jurors;
and the State did not provide clearly exculpatory evidence to the grand jury
regarding the mens rea of the defendant showing that defendant
was only lawfully defending his home and his place of business from illegal
entry.
4. An Order
dismissing the indictment with prejudice as the state refused to allow the
defendant to testify at the grand jury proceedings as was requested by Carl Herman,
Esq., defendant’s attorney at the time, and as a result, the grand jurors were never instructed
that the defendant was entitled to show that he was motivated by an honestly
held belief and did not consider affirmative defenses.
5. An Order
dismissing the indictment with prejudice as the State never instructed the
grand jurors as to the applicable defenses of ignorance or mistake, duress or
entrapment.
6. An Order
dismissing the indictment with prejudice as the State never instructed the
grand jurors as to New Jersey’s self-defense law and particularly defense of one’s
dwelling or place of business.
7. An Order
dismissing the indictment with prejudice due to the use of false and misleading
evidence.
8. An Order
requiring the State to produce any and all internal affairs
complaints/investigations/personnel files involving any of the law enforcement
officers involved in this matter. Particularly,
the personnel files of Officers Lucas and D’Agostino; and the medical records
of Officer Lucas evidencing no past sport-related or other injuries. At the very least, there should be an in
camera review of any such records.
9. An Order
requiring a pretrial hearing in this matter pursuant to State v. Driver,
38 N.J. 255 (1962) regarding any video or recording the State intends to offer
at the trial of this matter.
10. An Order
requiring the State to produce any and all records and/or information which
could arguably be helpful or useful to the defense in impeaching or otherwise
detracting from the probative force of the State's evidence, or which could
arguably lead to such records or information, including, but not limited to any
sheriff’s, police or S.W.A.T. vehicles, videos and/or audio tapes,
telecommunications between the Sheriff’s officers and other state or county personnel
during the day of the incident and afterwards; any other recordings, photographs
obtained by the S.W.A.T. team and the Sheriff’s personnel or other law enforcement
personnel involved, and any report pertaining to reconstruction of the incident. And, of course, any
evidence whatsoever which would tend to exculpate the defendant or affect the
credibility of any witness. Brady v.
Maryland, 373 U.S. 831 (1963); Giglio v. United States, 405 U.S. 105
(1972); Davis v. Alaska, 415 U.S. 308 (1974); State v. Satkin,
127 N.J. Super. 306 (App. Div. 1974); State v. Carter, 69 N.J. 420
(1976). The disclosure and production of
such evidence is to be made without regard to whether the evidence to be
disclosed and produced be deemed to be admissible at trial.
11. The defendant
moves for sequestration of witnesses during pretrial hearings and trial.
12. The defendant
specifically reserves the right to challenge the array in the jury pool;
13. Defendant
moves for an Order compelling the State to disclose if the State is going to
call any experts at the trial of this matter; and whether any forensic
examinations of any computer seized has been done and the results of the same.
14. The return of
all items taken from the defendant, his family, his home or business, which
will not be offered as evidence at trial and which have not already been
returned to defendant.
15. An Order
suppressing all evidence seized (and dismissing the indictment) as the product
of an unlawful search, contrary to the Fourth and Fourteenth Amendments to the
United States Constitution and Article I, Paragraph 7 of the New Jersey
Constitution as the State violated the defendant’s expectation of privacy and a
violation of the defendant’s First Amendment right to free speech and assembly. Peering into dwelling places, such as here,
is violative of the United States and New Jersey Consitutions. The officers also did not have a law-mandated
Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited, et
seq). It is defendant’s position
that the officers were trespassing on defendant’s property and peering through
his residential windows. See 2C:18-3.
Unlicensed entry of structures; defiant trespasser; peering into dwelling
places.
16. An Order
suppressing the legally-owned firearms seized from the defendant’s premises. The
defendant did not voluntarily consent to the illegal search. Sheriff’s Officer Lucas was illegally peering
through the front door side window of the defendant’s residence. (See
2C:18-3) And he had no “law-mandated” Warrant for Removal (see N.J.S.A.
2A:39-1 Unlawful entry prohibited). The
officers were trespassing and there were no exigent circumstances to justify
the trespass and the associated search and seizure. U.S. Const. Amend. IV;
N.J. Const. (1947), Art. I, Par. 7.
An evidentiary hearing should be held as to this motion.
17. An Order
suppressing all evidence seized because the Affidavit submitted in support of
the issuance of the Search Warrant contained misrepresentations and
fabrications; at the very least, an evidentiary hearing must be held. Franks
v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State
v. Novembrino, 105 N.J. 95 (1987); State v. Petillo, 61 N.J. 165
(1972); State v. Nelson, 155 N.J. 487, 498-500 (1998); R.
3:13-3(c)(6). Furthermore, information
in the possession or control of the Prosecutor concerning the source of the
information in the Affidavit should have been provided in discovery.
18. An Order
suppressing all evidence seized based upon irregularities in the execution of
the search warrant (including the failure of law enforcement to “knock”); State
v. Johnson, 168 N.J. 608 (2001). An
evidentiary hearing should be held as to this issue.
19. An Order
suppressing any statements given by the defendant; at the very least, a Jackson-Denno-Miranda
hearing must be held to determine a statement’s admissibility, see Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Jackson
v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); N.J.R.E. 104(C).
20. Defendant
moves for an Order disclosing who has had access to the computers seized at the
time of the execution of the Search Warrant in this matter. Any utilization of
or intrusions into the computer, with a delineation of the individuals who accomplished
the same - with the date, purpose and results should be provided to the defense.
21. An Order
dismissing the Indictment with prejudice because the defendant was the victim
of a criminal conspiracy by individuals and entities who lied to the courts and
court clerks and hired the sheriff’s officers to illegally seize defendant’s
home/business in violation of state and federal laws; the conspiracy was
uncovered by the Federal Bureau of Investigation (FBI) with assistance from the
defendant (See
https://www.fbi.gov/newark/press-releases/2014/former-new-york-tax-liens-investment-company-executive-pleads-guilty-to-role-in-bid-rigging-scheme-at-municipal-tax-lien-auctions); its existence against the defendant and
thousands of New Jersey homeowners was determined and confirmed by United
States District Court Judge Michael A. Shipp in the federal antitrust case IN
RE NEW JERSEY TAX SALES CERTIFICATES ANTITRUST LITIGATION, Master Docket No.
3:12-CV-01893-MAS-TJB (see
http://www.antitrustupdateblog.com/blog/antitrust-claims-survive-motions-to-dismiss-new-jersey-tax-lien-bid-rigging-class-action/)
and by the conviction of at least 15 individuals and entities in New Jersey,
including Passaic County, by the U.S. Attorney’s Office (See https://www.fbi.gov/newark/press-releases/2014/former-new-york-tax-liens-investment-company-executive-pleads-guilty-to-role-in-bid-rigging-scheme-at-municipal-tax-lien-auctions).
(Point XI). This will be part of the
defense if there is going to be a trial of this matter. However, the egregious conduct warrants a
pretrial hearing and dismissal.
22. The charges
under 2C:12-1B(9) must be dismissed with prejudice as they are not applicable
in non-law enforcement activities, as Officers Lucas and D’Agostino were
serving court papers, as per their grand jury testimony. The officers were wearing the light blue
process server uniforms, as this was a civil matter. They never announced themselves as law
enforcement officers and they never knocked (as per their testimony).
23. Defendant
respectfully reserves the right to make further motions in the event additional
discovery is provided, or if the interests of justice so require.
Defendant relies upon the attached brief and oral
argument, as well as testimony to be adduced at evidentiary hearings.
___________________________________
Miles
Feinstein, Esq.
On
behalf of the defendant
Basilis
N. Stephanatos
Miles
Feinstein, Esq.
1135
Clifton Ave.
Clifton,
New Jersey 07013
Attorney
for defendant
Basilis
N. Stephanatos and on the Brief
________________________________________________________________________
STATE OF NEW JERSEY, ) SUPERIOR COURT OF NEW JERSEY
Plaintiff ) LAW DIVISION
) PASSAIC COUNTY
vs. )
) CRIMINAL ACTION
) INDICTMENT NO.: 11-09-008101
BASILIS N. STEPHANATOS, )
Defendant ) BRIEF IN SUPPORT OF OMNIBUS
MOTIONS
) ON
BEHALF OF DEFENDANT
)
BASILIS N. STEPHANATOS
______________________________)_____________________________________________
Although it might seem at first blush to be irrelevant to
the Court, it is important to relate in detail the genesis of the charges
against defendant Stephanatos. The
easiest thing for the Court to do is to say that the background is immaterial
to the specific charges before the Court.
But we know that this Court does not do the easy thing, but tries to do
the right thing. There is a common
thread of abuse which culminated in the incident at bar. It is highly relevant and crucial to the
defendant’s state of mind and his position.
By way of background, in Passaic County, from in or about
2000 until approximately December 2008, Robert Del Vecchio, Sr. participated in
a conspiracy to rig bids at auctions for the sale of municipal tax liens in New
Jersey by agreeing to allocate among certain bidders which liens each would bid
on. A felony charge was filed on
September 30, 2013 in the U.S. District Court for the District of New Jersey in
Newark, against Michael Mastellone, of Cedar Knolls, New Jersey, for
participating in a similar conspiracy from in or about 2000 until approximately
February 2009. The FBI said that Del Vecchio, Sr. and Mastellone proceeded to
submit bids in accordance with the agreements and purchased tax liens at
collusive and non-competitive interest rates.
By conspiring to rig the
bids of municipal tax liens, the conspirators profited at the expense of those
already struggling financially. Class
litigation alleging investors colluded to ratchet up interest rates in
municipal auctions of tax liens, will move forward before the Honorable Michael
Shipp, United States District Judge, who declined to strike down state and
federal antitrust claims.
Judge Shipp held that the plaintiff property owners,
including defendant, “allege more than a sufficient amount of factual material
tending to show the existence of collusion on the local level” in New Jersey tax
sales certificates. “Furthermore,
plaintiffs have included allegations sufficient to establish the larger,
statewide conspiracy,” Judge Shipp added. “In sum, plaintiffs have set forth
allegations supporting the existence of nearly 50 auctions in the state of New
Jersey at which there was collusive conduct involving different iterations of
the defendants.”
In New Jersey, municipalities sell liens for property-tax
arrears at auctions. The rate of interest buyers can charge the property owner
starts at 18 percent and is driven down with subsequent bids. According to Judge Shipp’s opinion, the
plaintiffs claim the financial institutions in the business of buying up that
debt began a bid-rigging scheme around 1998 in which they obtained auction
lists beforehand and consulted with one another before auction to divvy up the
assets—so that there wouldn’t be multiple bids for each certificate driving the
interest rate down. In this system, the
investors allegedly policed one another with threats and intimidation to assure
that each of them stuck to the plan.
Judge Shipp said the plaintiffs lodged sufficient
allegations with respect to each defendant: American Tax Funding, LLC, BBX
Capital Corp., Fidelity Tax, Heartwood 55, PAM Investors, Crestar Capital and
Mooring Tax Asset Group, as well as individual defendants associated with them. In connection with the alleged statewide
scheme, the plaintiffs provided “extensive allegations” about the U.S. Justice
Department investigations that resulted in criminal charges against some of the
individual defendants, Judge Shipp said.
He further stated that: “Yet, plaintiffs allege a conspiracy involving
bid rotation or bid allocation.” Judge Shipp said: “As a result, it is equally
plausible, under the terms of the alleged conspiracy, that a defendant’s
absence from a particular auction was a direct result of the understanding
reached among the defendants that certain liens were to be allocated and not to
be bid upon by co-conspirators.”
Judge Shipp denied a motion by an individual defendant of
Passaic County, Michael Mastellone, for a stay pending sentencing in his
criminal matter. Mastellone pleaded guilty in September 2013 to a Federal Sherman
Act violation. At the time, a dozen other individuals already had pleaded
guilty to participating in the alleged bid-rigging scheme, according to a
Justice Department release.
The substantial terms of the conspiracy were:
·
to suppress competition by agreeing to
refrain from full competitive bidding against each other during the real estate
foreclosure auction process in the District of New Jersey, including the
homestead property of the Plaintiff;
·
to purchase auctioned real estate at a lower
price than would have been possible during a competitive auction process;
·
to defraud the courts by filing false or
fraudulent self-certifications using lawyers such as the Del Vecchios to force
homeowners out of their homes;
·
to cause financial institutions, lienholders
and/or homeowners to receive less than the full and competitive price for
properties sold through real estate foreclosure auctions;
·
failed to disclose such payoffs on certain
closing statements and other documents material to the foreclosure auction
process, and
·
obtained property and money from financial
institutions, lienholders and/or homeowners under false or fraudulent
pretenses;
Part of the methods of the conspiracy were:
Filing fraudulent self-certifications with the courts
and/or court clerks to enable them to obtain illegal Writs of Possessions and
to violate the possessory rights of homeowners; sought and received economic benefits
from the rental and sale of real estate purchased through the rigged
foreclosure auction process; and used certain proceeds from the rental and sale
of real estate purchased through the rigged foreclosure auction process to make
certain payoffs in furtherance of the conspiracy.
As a direct and proximate result of the unlawful scheme,
people such as defendant, were injured and financially damaged in their
business and property by having to pay more interest with respect to their
delinquent tax obligation than they would have absent the coconspirators’
unlawful activities, and having the equity in their property impaired, and in
some cases, losing title to their properties in tax sale foreclosures they were
unable to prevent due the impairment of their creditworthiness resulting from
the tax lien foreclosures.
Robert A. Del Vecchio committed a number of other crimes as
related to this case, by making an ex-parte fraudulent certification to a
Mercer County Clerk in May 2011.
Defendant’s home was located in Passaic County, but to deceive the
courts and to violate the possessory rights of defendant, Del Vecchio made the
conscious decision to file his fraudulent ex-parte certification in Mercer
County, in violation of state law; stating that defendant had no possessory
interests in his home. Del Vecchio then
hired his friends, Passaic County officers Lucas and D’Agostino (he resides in
the same town as Del Vecchio), to perform an unlawful eviction from defendant’s
home and committed a forceful entry in violation of the New Jersey Forceful
Entry statute. Defendant asserts that
Del Vechhio lied to Judge McVeigh that defendant owed $65,000 in taxes without
revealing to Judge McVeigh that the defendant was in dispute with Wayne
Township due to the over-assessment of his property and that the taxes
allegedly “owed” (Defendant disputes that he owed any taxes to the Township)
were significantly less. Del Vecchio
continued to feed Judge McVeigh, on an ex-parte basis, lies and fabrications, e.g., that Defendant had not paid taxes since 1993. These were the same practices that Del
Vecchio used throughout his area of fraudulent activities (Townships of Wayne,
Borough of Fort Lee, his hometown of Hawthorne, and many other
municipalities). Robert Del Vecchio also
served as a lawyer for defendants American Tax Funding, LLC and American Tax
Holdings, LLC and Plymouth Park Tax Services, LLC. Del Vecchio reached an agreement with his
co-conspirators not to bid for himself or the Del Vecchio Pension Trust and would
instead allow American Tax Funding or American Tax Holdings or Plymouth Park
Tax Services, LLC to charge 18 percent interest or a greater rate onto the tax
lien certificate. In exchange, Del
Vecchio would represent the others in any foreclosure and other legal
proceedings. Del Vecchio would also make
false certifications to the courts and clerks of the courts that the property
owners have no possessory interests in their homes so that his conspirators
would seize homeowners’ property, enriching themselves and causing many
millions in property and business damages to homeowners, including the defendant.
It is the defendant’s position that he was not personally
liable for the property taxes and no personal judgment could have been issued
against him. Only an in rem proceeding could have been
legally instituted to take title from him and to force him out of his
residence. However, according to New
Jersey law only the municipality can institute an “in rem” proceeding. The
municipal-held liens can be foreclosed by municipalities under the In Rem Tax
Foreclosure Act codified in N.J.S.A. 54:5-104.29 et seq. However, a private entity, such as ATF and
Del Vecchio, is not allowed by New Jersey law to perform in rem foreclosures.
What these conspirators did, then, was to treat the real
estate taxes as a personal debt and they used the “in personam” foreclosure proceedings that are applicable to
debtor-creditor residential mortgage proceedings or in situations where a
person is personally liable for a debt.
However, according to New Jersey law "A tax against real estate is
not a debt of the owner; it is not founded on a contract express or implied but
is an imposition against the property and no personal liability attaches."
(emphasis added) Francis Realty Co. v. Newark, 16 N.J. Misc. 328, 330
(Essex Co. Cir. Ct. 1938). This position
is supported by Rothman v. River Edge, 149 N.J.Super. 435, 374 A.2d 36
(App.Div. 1977), certif. den., 75 N.J. 19, 379 A.2d 250 (1977) in that court's
statement that the unpaid taxes could not result in a judgment against the
taxpayers but shall be a lien against the premises. [149 N.J. Super. at 442,
374 A.2d 36].
Thus, because the real estate taxes were not a personal
debt of the defendant and no personal liability attaches, these conspirators
could not have used the residential mortgage foreclosure proceedings or the “in personam” foreclosure proceedings to
determine ownership and possession of the land and actual
possession of the land. This could only
have happened through an “in rem”
proceeding and that proceeding could have only been conducted by municipalities
under the In Rem Tax Foreclosure Act codified in N.J.S.A. 54:5-104.29 et
seq. Thus, the actions of the conspirators
were thoroughly unlawful and also prohibited by the Public Use Clause of the
Federal and State Constitutions. These
irregularities also raised issues of the Taking of Private Property without Due
Process of Law, i.e., a Due Process 14th Amendment violation.
Here, there is no dispute that defendant’s property was
taken for a private purpose, as the almost $500,000 was given to ATF and Robert
Del Vecchio for a few thousand dollars in taxes.
The conspirators and the Sheriff’s Department knew that
the statutes and Appellate case law protected defendant’s right to remain in
actual possession of his residence. In
addition, N.J.S.A. 2A:39-7 states that title shall not be an issue since
Defendant was in continuous possession of his residence for 16 years. N.J.S.A.
2A:39-7 Title not inquired into; defense of 3 years possession. Title shall not be an issue in any action
commenced under this chapter. 3 years peaceable possession by the defendant
shall be a defense to the action.
This Court should note that defendant’s residence was
located in Passaic County, not Mercer County. Therefore, Mercer County Judge Jacobson had no
jurisdiction over the property or the person and as a result, all her orders were null and void ab initio. N.J.S.A. 2A:39-1 prohibits the unlawful entry
in any real property occupied solely as a residence by the party in possession,
unless the entry and detention is made pursuant to legal process as set out in N.J.S.A.
2A:18-53 et seq. N.J.S.A.
2A:39-1 provides that:
“No person shall enter upon or into any real
property or estate therein and detain and hold the same, except where entry is
given by law, and then only in a peaceable manner. With regard to any real property occupied solely as a
residence by the party in possession, such entry shall not be made in
any manner without the consent of the party in possession unless the entry and detention is made pursuant to legal process
as set out in N.J.S.2A:18-53 et seq., as amended and supplemented; P.L.1974,
c.49 (C.2A:18-61.1 et al.), as amended and supplemented; P.L.1975, c.311
(C.2A:18-61.6 et al.), as amended and supplemented; P.L.1978, c.139
(C.2A:18-61.6 et al.), as amended and supplemented; the "Tenant Protection
Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.); or N.J.S.2A:35-1 et
seq. and "The Fair Eviction Notice Act," P.L.1974, c.47
(C.2A:42-10.15 et al.). A person violating this section regarding entry of
rental property occupied solely as a residence by a party in possession shall
be a disorderly person”.
Defendant was in possession of his home continuously
since 1995 and it was being used as his residence.
In May 2011, following the issuance of a judgment, based
upon fraud, by a Mercer County Court that had no jurisdiction over the defendant
or his residence, defendant became at least a “tenant at sufferance”. Defendant also had a significant possessory
interest, including the filing of a Suit to Vacate the Tax Deed, the filing of
two appeals, the possession of a business in the premises (Metropolitan
Environmental Services, PC and Metropolitan Environmental Services), and the
right to buy back the rights to the property. See N.J.S.A. 54:5-104.100. This state law is consistent with the
legislative findings in N.J.S.A. 2A:18-61.1a.
Here, Defendant alleges that no taxes were due to Wayne
Township and the Township did not have the power to sell his homestead property
due to the above-mentioned constitutional violations. Defendant also alleges that his federal
rights of equal protection and due process have been violated.
The
applicable statutes here are the so called Summary Dispossess Act statutes. The
Summary Dispossess Act, N.J.S. 2A:18-53 et seq. was enacted in 1951 and
amended in 1983 and 1991. Since
enactment of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., the Summary
Dispossess Act has been understood to cover the eviction of nonresidential
tenants and residential tenants not covered by the Anti-Eviction Act. This is a
very critical issue for the Court to note. Source: STATE OF NEW
JERSEY, NEW JERSEY LAW REVISION COMMISSION, Final Report Relating to Landlord
and Tenant Law, February 10, 2012
This Court should also compare the law of the state of
New York, where similar process must be followed, i.e., the issue of actual
possession must be decided by a Law Division Judge, after a new owner (a tax
sale purchaser) has met the conditions for taking possession. The court should note that ATF and Robert Del
Vechhio did not take possession of the property; they only wanted to remove defendant from the
property. They immediately sold the
property for $330,000 to a third party.
Therefore, the conspirators could have sold the property without
violently removing defendant from his home and place of business.
Based on New Jersey law and the law of other states, to
remove a person in actual possession, the owner must occupy the premises
himself (this was not the case here as ATF did not take actual possession of
the premises and only took constructive possession) or no rent was being paid
or for breach of the peace. In other words,
only after they met few exceptions (such as not paying rent, etc.) and through
an Order from a Law Division Judge could the conspirators entered defendant’s property
and remove him from his dwelling in tax lien cases.
The conspirators intentionally did not follow the
Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., and the Summary Dispossess Act,
N.J.S. 2A:18-53 et seq. and refused to follow the Unlawful and Forceful Entry
and Detainer statutes of the state of New Jersey, and they willfully lied to
the Mercer County Clerk in May 2011 that there were no persons in the premises.
This was a willful misrepresentation by
Robert Del Vecchio that no persons with possessory interests were present at
the residence of defendant protected by either the Anti-Eviction Act N.J.S.A.
2A:18-61.1 et seq., or the Summary Dispossess Act, N.J.S.A. 2A:18-53 et
seq.
Robert Del Vecchio, Jr., Esq. and Robert Del Vecchio,
Sr., Esq., who are both lawyers in New Jersey, knew that this was a residential
property and that this was not a mortgage foreclosure case. They knew that they had to comply with the
Unlawful Entry and Wrongful Entry statutes – but they knowingly decided not to
comply with state law. They managed to
fool the Sheriff’s Office or enlisted Officers D’Agostino and Lucas to violate
the legal rights of the defendant to perform an unlawful search and unlawful
entry and to forcefully remove defendant from his lawfully-occupied residence
on June 28, 2011. It is important to
note that Robert Del Vecchio, Sr. plead guilty to a felony charge in the U.S.
District Court (Newark).
N.J.S.A. 2A:18-57
requires that a judgment of possession must be issued by a Law Division judge,
followed by a warrant for removal.
Specifically, state law requires that a Warrant for Removal must be
obtained by a Law Division judge (see N.J.S.A. 2A:18-57 for non-leaseholders
and N.J.S.A. 2A:42-10.1 for leaseholders).
2A:18-57 provides:
Judgment
for possession; warrant for removal; issuance
If no sufficient cause is shown to the contrary when the action comes on
for trial, the court shall issue its warrant to any officer of the court,
commanding him to remove all persons from the premises, and to put the
claimant into full possession thereof, and to levy and make the costs out
of the goods and chattels of the person in possession.
No warrant of removal shall issue until the expiration of 3 days after
entry of judgment for possession, except as provided for in chapter 42 of
this Title.
L.1951
(1st SS), c.344; amended by L.1979, c. 392, s. 1, eff. Feb. 6, 1980.
Furthermore, Section 2 of P.L.1974, c.47 (C.2A:42-10.16)
reads as follows:
2.
In any proceeding for the summary dispossession of a tenant, warrant for
possession issued by a court of appropriate jurisdiction: a.
Shall include a notice to the tenant of any right to apply to the court for a
stay of execution of the warrant, together with a notice advising that the
tenant may be eligible for temporary housing assistance or other social
services and that the tenant should contact the appropriate county welfare …
No such notice was provided in the Writ of Possession
issued by a Clerk of Mercer County (again, that Mercer County court had no
jurisdiction over property that is located in other counties).
The conspirators fraudulently and willfully refused to
obtain such a judgment of possession from a Law Division judge and a warrant
for removal and instead provided a certification to a Clerk of the Mercer
County that no persons with possessory interests were present, when in fact defendant
was in actual peaceful possession continuously since 1995.
In most states, including New Jersey, “it is immaterial
in a suit for forcible entry and detainer whether plaintiff has the legal right
of possession, and the action lies so long as the plaintiff had peaceful prior
possession and was forcibly put out of that possession by the defendant, even
if the plaintiff was devoid of any of the muniments of title or was a
trespasser.” 35A Am. Jur. 2D Forcible Entry and Detainer § 18 (2001). See,
e.g., Allen v. Harris, 755 S.W.2d 393, 395 (Mo. Ct. App. 1988) (“In an
action of forcible entry and detainer, the sole issue is a question of actual
possession, and not the right of possession, since one may be wrongfully in
possession, yet he cannot be dispossessed against his will.”); Floro v.
Parker, 205 So. 2d 363, 365-66 (Fla. Dist. Ct. App. 1967) (holding legal
right of possession “immaterial” in an action for forcible entry and detainer).
Defendant’s property was assessed by the Wayne Township
Assessor at $237,000 from 1995 through 2011.
The average common level ratio in Wayne Township from 1995 through 2011
is 50 percent;
Based on an average common level ratio of 50 percent, and
an assessed value of $237,000, the Assessor valued defendant’s property at
$237,000/0.50 = $474,000. This is the
“true value” used by the Assessor in determining defendant’s assessed
valuation.
The actual value of defendant’s property in 2011 has been
established at $330,000 based on the sale of the property in December 2011
after the conspirators forcibly and illegally removed defendant from his home. Accordingly, the Assessor’s “true value” was
forty percent greater than the actual value of defendant’s property (40%=
$474,000/$330,000); this over-valuation
resulted in forty percent more taxes being levied onto defendant’s property;
In May 1995, the defendant bought the property for
$237,000. This is evidence of the fair
market value or true value of the property in that year. In 1996, the Assessor, however, despite
having knowledge of this true value, assessed defendant’s property as if his
property was valued at $475,000. This was
an impermissible over-assessment because it exceeds the common level ratio by more
than 15 percent. Defendant had been
writing to the municipality that his property was in fact over-assessed.
Defendant informed the municipality numerous times that the collection that
they were attempting was illegal and unconstitutional, but to no avail.
This over-assessment of defendant’s property continued
from 1996 through 2011, resulting in more than $45,000 in unlawful charges onto
defendant’s property. As a result, it is
defendant’s position that he did not owe any money to the municipality.
The grand jury was not told of defendant’s accusations
that the now convicted conspirators had violated numerous state laws, including
the criminal conspiracy, the violation of the New Jersey Constitution, the
Forceful Entry and Detainer law, the over-assessment of his property, the
flooding in his property, and the New Jersey Tax Sale Law. Defendant initially hired Carl Herman, Esq.
to get him to the Grand Jury and present his exculpatory evidence that shows
that all the accusations of the Passaic County sheriff’s employees were
fabricated. But it appears that the Prosecutor
refused to permit defendant to present any evidence to the Grand Jury, despite
a letter sent to the Prosecutor’s office by Mr. Herman.
In Royal Tax Lien Services, LLC v. Morodan, (2014
Appellate Division decision A-6030-12T1) the Court stated:
“Moreover,
if the final judgment stands, plaintiff will receive property that, according
to defendants, is valued at $650,000 for an approximate $65,000 investment.
That is a factor that should have been taken into account when balancing the
equities. See I.E.'s, L.L.C. v. Simmons, 392 N.J. Super. 520, 537 (Law Div.
2006) (tax sale certificate foreclosure system can be "Dickensian"
where owners hold substantial equity in property. "Until the Legislature
devises a better system, courts of equity must do their best to balance the
equities, taking into account the necessity of allowing the transfer of clear
title and the need to compel the payment of property taxes against the necessity
of ameliorating, in appropriate circumstances, the onerous impact of the
procedure". The
court further stated the following:
“Finally,
the judge did not even mention plaintiff's alleged failure to provide adequate
notice to defendants. It is always necessary for a judge to render findings of
fact and rulings of law; in this type of case where the courthouse doors seem
to have been slammed shut on defendants who might have thereby inequitably lost
a valuable property, it was crucial. See Ronan v. Adely, 182 N.J. 103, 110-11
(2004); Cameco, Inc. v. Gedicke, 157 N.J. 504, 509-10 (1999); Kas Oriental
Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 562-63 (App. Div.), certif. denied,
200 N.J. 476 (2009)”.
Here, defendant had full equity in his home which was valued
by Wayne Township for almost $500,000. It
is defendant’s position that Judge McVeigh failed to perform fact-finding and
rulings of law to determine the significant equity defendant had in his
home. The alleged taxes owed, if any,
(although defendant disputed the taxes due to overvaluation of the home) were no
more than $20,000. Judge McVeigh, to justify
her actions stated that defendant did not pay taxes since 1993, which was not
true. Defendant only disputed the
over-assessment of his property and did pay all taxes from 1993 through 2005;
then, after defendant’s property was damaged by flooding, he paid about 50
percent of the taxes assessed. In
January 2013, the Wayne Township Tax Assessor admitted that the properties were
overvalued and that no assessment had been performed since 1995. These statements were made by Tax Assessor Dorothy
Kreitz in a letter to defendant.
Judge McVeigh failed to perform any fact finding and
statements of the law and instead repeated the falsehoods of the
conspirators: Robert Del Vecchio and
American Tax Funding. Consistent with
the decision of the Appellate Division cited above, defendant submits that it
is likely that the Appellate Division would have vacated the Chancery Court’s
judgment issued in May 2011. But the
conspirators acted quickly and fraudulently by hiring the sheriff to force defendant
out of his home without the docketed appeals ever being heard.
A Forcible Entry and Detainer is an
action in New Jersey that a landlord, or new property owner can take if the
existing occupant refuses to leave after appropriate notice. The occupant could be either a tenant or
original owner of property that was sold at a foreclosure or trustee's sale. The laws governing forcible entry and detainer
actions are different if the property is residential or non-residential.
The tenant/occupant must receive a
written demand to vacate the property.
No such demand was received by the defendant. This term normally is either 5 or 7 days,
unless the contract states otherwise. After the 5-7 days expire and the
tenant/occupant still refuses to leave then a complaint for a forcible detainer
action can be filed. The statutes provide for a short notice period before a
court hearing. The sole issue at the court hearing is whether or not the
tenant/occupant has the right to possession.
If they do not then they will be found guilty of a forcible entry and
detainer.
The
law in New Jersey is clear. Landlords or their employees or their agents (the
sheriff’s officers are considered in fact agents of the conspirators ATF and
Robert Del Vecchio, as they were paid by them) can’t legally evict tenants by
themselves. (These kinds of evictions are sometimes called self-help evictions.) Police officers
cannot evict tenants. Only a special
court officer with a warrant for removal issued by a judge can actually
evict a tenant. Landlords who try to evict tenants by themselves are doing
something illegal, even if they have gone to court and sued the tenant for
eviction. N.J.S.A. 2A: 39-1 and 2;
N.J.S.A. 2A:18-57; N.J.S.A 2A:42-10.16.
On January 12, 2006, the law was
changed. Illegal
evictions are now a disorderly persons offense.
N.J.S.A. 2C:33-11.1 compels the
following:
1.
The new law requires the police or
any other public officials who find out about an illegal “self-help” eviction
to warn the landlord or his workers to stop. If the landlord does not stop,
then the landlord has broken the law. If the police arrive after the landlord has already locked
the tenant out, the police must tell the landlord to let the tenant go back in.
If the landlord refuses, then the landlord has broken the law.
2.
The police must make sure that
tenants who are illegally evicted get back into their
home
or apartment. If the landlord tries to keep the tenants from going back in, the
police must stop the landlord. The police must also give the landlord a summons
to go to court, or even arrest the landlord if he refuses to let the tenant go
back in.
3.
The new law says that a landlord who tries to
get a tenant out by doing any one of the following things is breaking the law.
These things are now disorderly persons offenses: (1) The landlord uses
violence or threats of violence to get the tenants out; or (2) the landlord says
or does other things to try to scare the tenants into leaving; or (3) the
landlord takes the tenant’s property and puts it outside; or (4) the tenant
lets the landlord in peacefully, and then the landlord forces the tenant out;
or (5) the landlord padlocks the door or changes the locks; or (6) the landlord
shuts off the electricity or gas, or has them shut off, in order to make the
tenant leave; or (7) the landlord tries anything else to get the tenant out.
4. The only way the landlord can evict
the tenant is if a special court officer with a legal court order called a
warrant for removal comes out himself and does the eviction.
And even before the special court officer can do the eviction, he must give a
copy of the warrant for removal to the tenant (or leave a copy on the tenant’s
door) at least three days before coming out to do the actual eviction. The new
law says that the warrant for removal must tell the tenant many things,
including that self-help evictions by landlords are now disorderly persons offenses.
The warrant must also let the tenants know the earliest day on which the
special court officer can come back to do the eviction.
5. The
new law says that if a special court officer does do a legal eviction, he or
she must fill out a new form called an “execution of warrant for possession.”
The new form must say when the legal eviction took place, and give the name,
signature, and position of the special court officer who did the eviction. The special court officer is required to
immediately give a copy of this new form to both the landlord and tenant (or
a member of the tenant’s family), and also to post it on the door of the
dwelling unit.
6.
If the landlord does not have a copy of a valid execution of warrant
filled out by a special court officer, then the landlord is doing an illegal
eviction. The police officer must tell him to stop trying to evict the
tenant. If the landlord does not stop, then the police officer must stop the
landlord and charge him with a disorderly persons offense. The police officer
must also protect the tenant and see that the tenant gets back into the home.
7.
The new law says that the Attorney General of New Jersey must make sure
that all state and local police officers, prosecutors, and public officials
know about the new law. Each police officer must be given a form that describes
the new law and the police officers’ responsibilities to enforce it. Police
officers must also be given special training to make sure they know what they
have to do to stop illegal evictions.
Officers Lucas and D’Agostino testified during the grand
jury proceedings that they performed a forceful entry into a residential
property in direct violation of N.J.S.A.
2A:33-1 et seq.
Their defense is that they performed this forceful entry pursuant to a
court order. However, no Warrant for
Removal had been issued by a Law Division Judge who had jurisdiction over the
property, as is mandated by the Unlawful Entry and Detainer state law (see N.J.S.A. 2A:18-57): The ex-parte Writ of Possession had been
issued not by a Law Division Judge as is required by New Jersey Law, but by a
Mercer County Clerk, who had no jurisdiction over the property, after the
fraudulent ex-parte certification by conspirator Del Vecchio, Esq (working for
co-conspirator American Tax Funding, LLC (“ATF”)) that no persons with
possessory interests were present at the residence.
Therefore, it is an irrefutable fact that the officers
knew that they had to obtain a Warrant for Removal but failed to do so. The Sheriff’s Office forcibly evicted defendant
in violation of state law. The Sheriff’s
office was paid thousands of dollars by the conspirators ATF and Robert Del
Vecchio to perform these illegal acts.
During the grand jury proceedings, Lucas and D’Agostino lied to the grand
jury when they said that they were merely trying to deliver eviction papers. They stated that “several officers were
dispatched at the property”. Typically
only one officer is needed to serve documents, yet Lucas admitted in his
testimony that at least two sheriff’s cars
and several officers went to the dwelling of defendant not to serve documents
only, but also to remove him in violation of the New Jersey Forceful Entry and
Detainer laws.
The conspirators used mortgage foreclosure procedures
that are not applicable to a tax lien foreclosure case. The grand jury was never informed of these
crucial facts.
Defendant incorporates by reference the facts, arguments,
authorities and Appendices provided to this Court in 2012 with regard to the
Motion to Change Venue.
Point
I
The
indictment must be dismissed with prejudice because the State mislead the Grand
Jury and failed to present exculpatory evidence. The State misled the Grand Jury regarding the
commercial instrument located in defendant’s place of business; failed to
inform the Grand Jury that defendant’s property was impermissibly over-assessed
and no taxes were legally due; failed to provide to the grand jury exculpatory
evidence obtained from defendant’s computer; refused to allow the defendant to
testify at the grand jury proceedings as a factual witness and to provide
clearly exculpatory evidence. It was
crucial that the State
never informed the Grand Jury that the Passaic County Sheriff failed to obtain
a mandatory warrant of removal (see n.j.s.a.
2a:39-1 unlawful entry prohibited) and that as result the sheriff’s
employees were trespassing on defendant’s property
In November 2011, Assistant Prosecutor Peter Roby
admitted before Judge Filko that no warrant for removal was obtained prior to
the Passaic County Sheriff’s Officers entering defendant’s property and
home. A Warrant for Removal should have
been obtained as is mandated by New Jersey law (N.J.S.A. 2A:39-1 et seq. and
N.J.S.A. 2A:18-57). The Sheriff’s
employees committed a forceful entry and detainer in violation of the New
Jersey Forceful Entry statutes. However,
they lied to the grand jury and told them that they were lawfully at
defendant’s door step. To further
mislead the grand jurors, Officers Lucas and D’Agostino testified that they
were just delivering process papers, when in reality they were trying to evict defendant
from his dwelling without having to procure a Warrant for Removal issued by a
Law Division Judge. In fact, these two
individuals testified that “several officers were dispatched to the property”,
further proving that they were there to illegally evict defendant. The Sheriff’s employees performed a forceful
entry into a residential property in direct violation of N.J.S.A. 2A:33-1 et
seq. Their defense is that they
performed this forceful entry pursuant to a court order. However, no Warrant
for Removal had been issued by a Law Division Judge who had jurisdiction over
the property, as is mandated by the Unlawful Entry and Detainer law (see N.J.S.A.
2A:18-57): The ex-parte Writ of
Possession had been issued by a Mercer County Clerk, who had no jurisdiction
over the property, after the fraudulent certification by co-conspirator Robert
Del Vecchio that no persons with possessory interests were present at the
residence.
Specifically, for entering and removing a person from a
residential property, N.J.S.A. 2A:18-57 requires that a judgment of possession
must be issued by a Law Division Judge, followed by a Warrant for Removal. State law also mandates that a notice be
provided to the person in possession that he has the right to apply to the
court for a stay of execution of the warrant, along with other
notifications.
As defendant stated in letters to this Court, at a
hearing before Judge Roy McGeady, Bergen County Municipal Court Presiding
Judge, the Judge was shocked to find out that no Warrant for Removal was
obtained prior to entry of defendant’s home.
Based upon the above, the indictment must be dismissed with prejudice
and all evidence obtained and/or seized must also be excluded and returned to
the defendant. Remember also that N.J.S.A.
2A:39-7 says that title shall not be an issue since defendant was in continuous
possession of his residence for 16 years.
The Passaic County employees and the conspirators who
hired them prevented defendant from going before a Law Division judge to assert
this defense. That is why they acted with
haste and fraud to remove him from his property. It was never stated to the grand jury that defendant’s
possession of his home was protected by New Jersey statutes and defendant had
the right for a hearing before a Law Division judge. The conspirators (Robert Del Vecchio and
American Tax Funding) received a fraudulent conveyance (a title transfer) and
they could have sold the home with defendant still inside it. There was no reason at all to force defendant
at gun point to leave the home, unless they would occupy it, i.e., take
possession of the home. But they (Robert
Del Vecchio, ATF) did not occupy the home, as they immediately sold it to a
third party. This is critical. The Grand Jury was never notified of this law
and the indictment must be dismissed for that reason alone.
It is clear that under certain circumstances a prosecutor
has a duty to present exculpatory evidence to a grand jury. In State v. Gaughran, 260 N.J. Super. 283,
290 (Law Div. 1992) (quoting State v. Engel, 249 N.J. Super. 336, 359 (App.
Div. 1991)) a trial court dismissed an indictment where a prosecutor failed to
present exculpatory medical evidence directly contradicting a complainant’s
testimony in a sexual assault case. The
opinion noted there was no issue as to the sufficiency of the evidence before
the grand jury, but rather whether the failure to present exculpatory evidence
“stripped the grand jury of its function to protect the innocent from unfounded
prosecution.” Gaughran, 260 N.J. Super. at 287.
In State v. Hogan, 144 N.J. 216, 227 (1996), our Supreme Court held that
there is a prosecutorial duty to present exculpatory evidence under
circumstances where it directly negates guilt. In doing so, the New Jersey Supreme
Court explained that the prosecution is precluded from “deceiving” the grand
jury or presenting its evidence in a way that is tantamount to telling the
grand jury a “half-truth” because any “distorted version of the facts
interferes with the grand jury’s decision-making function”.
It is the defendant’s position that the State deceived the
Grand Jury; refused to provide clearly exculpatory evidence and defenses and
refused to allow the defendant and/or his witnesses to testify in this matter.
Defendant submits that he did not have the chance to
vacate a judgment that was wrongfully issued against him by Judge McVeigh.
Defendant filed a complaint with the FBI and the U.S.
Attorney’s Office and an investigation revealed a massive conspiracy. The conspirators took defendant’s property by
violating the antitrust and tax sale laws, by violating the forceful entry and
detainer laws, and other offenses. There
was an intentional overvaluation of defendant’s property so that more taxes could
be collected. They also knew that
flooding had reduced defendant’s homestead property value. Judge Margaret McVeigh did not consider defendant’s
full equity in his home and she never conducted a bench trial to determine the
facts consistent with Rule 1:7-4(a).
Judge McVeigh simply issued a judgment against defendant
based on the statements of the conspirators Robert Del Vecchio and American Tax
Funding (ATF). The entire panorama of
circumstances indicate that defendant was denied due process. There are issues and defenses of entrapment,
duress and improper government conduct.
Defendant had requested the Chancery Court to address the
over-valuation of his property. However,
the conspirators (especially Robert Del Vecchio) lied to Judge McVeigh and
assured her that “all issues have been adjudicated”. Judge McVeigh relied on the assertions of the
conspirators and stated that all issues had been adjudicated, that defendant
had not paid taxes since 1993 (another fraud on the grand jury) and refused to
perform any fact finding hearing or any trial to confirm the “facts” upon which
the conspirators were relying. This
permitted the conspirators to charge defendant with the impermissible
over-assessment. In addition, they also charged
defendant with an 18 percent interest rate on these over-assessments and an
additional 6 percent in penalties. Thus,
a small tax based on the illegal over-assessment of $20,000 plus ended up being
approximately $49,000 to 65,000.
The New Jersey criminal statutes
allow a person to carry a gun in his place of business or premises. See 2C:39-6-Exemptions. e. Nothing in
subsections b., c. and d. of N.J.S.2C:39-5 shall be construed to prevent a
person keeping or carrying about his place of business, residence, premises or
other land owned or possessed by him, any firearm..”.
In District
of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court
held that the Second Amendment “right of the people to keep and bear arms”
really does refer to the actual people and really does recognize their right to
possess and carry firearms for self-defense, militia use, and hunting. Heller, 554 U.S. at
599. Heller
was followed in 2010 by McDonald
v. City of Chicago, which extended the right to bear arms to states
and localities through the Fourteenth Amendment. 130 S. Ct. 3020, 3026
(2010). The specific law Heller invalidated was a
ban on possession of handguns in the home.
Thus, defendant has the federally-protected fundamental
right to keep and bear arms inside his premises for the protection of himself,
his family and his property. Combine
this with the fact that Lucas and D’Agostino have lied about the
events of June 28, 2011 and have presented numerous conflicting versions and
revisions without even having been cross-examined by the defense. This should have been brought out before the
grand jury. Based upon the above, the
indictment must be dismissed with prejudice.
POINT
II
The
indictment must be dismissed with prejudice because the four (4) plus years
case delay deprived the defendant of his constitutionally-guaranteed right to a
speedy trial.
The
United States Supreme Court in Barker v. Wingo, 407
U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 101, 117 (1972), and the New Jersey
Supreme Court in State v. Cahill, 213 N.J. 253 (2013), examined the
constitutional right to a speedy trial in the context of a criminal charge and
a DWI charge, respectively. The New Jersey Supreme Court instructed, “[p]rompt
disposition of criminal or quasi-criminal charges addresses the interest of the
accused to be treated fairly … and prevents prejudice to the accused.” Id. at
276.
Courts
should assess “four non-exclusive factors” to determine if a defendant’s constitutional
speedy trial guarantees have been violated: “length of the delay, reason
for the delay, assertion of the
right by a defendant, and prejudice
to the defendant” Id. at 264.; see also State v. Farrell, 320 N.J.
Super. 425 (App. Div. 1999); State v. Tsetsekas, 411 N.J. Super. 1 (App.
Div. 2009).
“There
is no set length of time that fixes the point at which delay is excessive.” State
v. Tsetsekas, 411 N.J. Super. at 12. In Cahill, the Court instructed that a
gauge to a “presumptively prejudicial” delay is “the amount of time customarily
required to dispose of similar charges.”
State v. Cahill, 213 N.J. at 265.
The
Cahill Court referred to New Jersey Supreme Court Chief Justice Wilentz’s July
26, 1984 Directive #1-84 instructing that DWI charges be disposed of in 60
days. Id. at 269. The Court called the 60-day period a goal, not a “bright line
rule.” Id. at 270. However, the Court
said, “90 to 120 days should be the norm for disposing of [DWI] cases.” Id. at
274. The Court further noted that a case that “approaches one year” is
“presumptively prejudicial.” Id. at 265. In Cahill, the Court called the
16-month delay “too long.” Id. at 277. Likewise, in State v. Tsetsekas,
the Court found that 344 days, “more than five times the stated [Supreme Court]
objective” … weighted heavily for the defense. State v. Tsetsekas,
411 N.J. Super. at 11.
Here,
there is already a more than four and a half years delay in proceeding with the
case since the June 28, 2011 assault charges.
Considering defendant is filing a significant number of substantive
motions and defendant is asking for a significant amount of discovery, it may
very well be a very lengthy additional time period before this case reaches
trial. These enormous delays are
presumptively prejudicial, considering that the defendant is a licensed expert whose
reputation has been tarnished by the charges and who cannot earn a living.
A
defendant does not have an obligation to assert his right to a speedy trial
because he is under no obligation to bring himself to trial. Id. at 266. Court
delays are charged to the State, not to the Defendant. State v. Farrell,
320 N.J. Super. at 450-451.
Here,
the original trial judge decided that the motion to change venue should be
heard, because of its nature, before any other action was taken in this
case. It was not decided and the case
was transferred to a second judge. The
motion to change venue was argued a long time ago and the Order and written
decision were received in November, 2015.
The delay has created economic and non-economic hardships for the
defendant and his family. The delay must
be charged to the State. State v. Farrell, 320 N.J. Super. at
450-451.
Furthermore,
the defendant needs discovery of some very important evidentiary information
that may assist in his full exoneration of most or all of the charges. Specifically, the defendant is entitled to
copies of video recordings from any cameras on the sheriff’s vehicles that
arrived at the defendant’s home on June 28, 2011. These videotapes may show that Lucas and
D’Agostino have been lying regarding their location, and specifically Lucas’s
location at the porch in front of the defendant’s dwelling. Defendant is concerned that this crucial
evidence may have been destroyed by the sheriff’s office, the same way the yews
and rhododendron bushes have already been removed from the property (these
bushes is where Lucas claims he fell, and are crucial in showing to the jury
the actual location of Lucas and that Lucas prepared false reports).
In
addition, defendant is entitled to copies of any audiotapes of the
conversations between the sheriff’s officers at the property on June 28, 2011
and other officers not located at the property at the time or conversations
with any other officer, Passaic County personnel or the conspirators regarding
the events of that date. These
audiotapes may show once again that Lucas prepared false reports regarding his
position at the dwelling of the defendant, whether he rang the doorbell or not,
where he fell and how, etc. This is
absolutely crucial evidence. Any
reconstruction of the incident investigation must be turned over to the
defendant. It should have been turned
over a long time ago. Defendant wants
counsel to remind the Court that more than a year ago (April 2014)
defendant sent a letter to the Court urging the Court to promptly proceed with
the case. Here is an excerpt from that
letter;
“I
also want this Court to realize that we will be filling a significant number of
motions challenging the grand jury proceedings.
We allege that the grand jury proceedings were tainted by fraud on the
court/grand jury, false testimonies, hiding exculpatory evidence from the grand
jurors, refusing to instruct the grand jurors of applicable defenses,
misleading the grand jurors, eliciting false testimonies, and so on. Thus, my concern is that if it takes more
than a year to rule on a motion to change venue, how long will it take to
adjudicate the 25+ motions we have put together for dismissal of the tainted
and/or fraudulently procured indictment?
I have suffered significant economic and non-economic damages and I continue
to suffer significant economic and non-economic damages every day this case is
delayed. I am urging this Court to read
these documents into the record, including my concerns with all the delays in
proceeding with the motions”.
In
Cahill, the Court explained that the “minimization of anxiety
attributable to unresolved charges” is one of the interests the speedy trial
right is designed to protect. Id. at 266. “A speedy trial violation can be
established without evidence of prejudice.” Id. at 274 (citing State v.
Farrell, supra., 320 N.J. Super. at 446. The Cahill Court explained,
“every unresolved case carries with it some measure of anxiety.” Id.
“This is particularly true when one of the sanctions [for DWI is] a
license suspension.” Id.
Here
the defendant faces serious criminal charges and he is in jeopardy of a
potentially long prison sentence.
The
court instructed in State v. Farrell, “prejudice to a defendant
resulting from delay is no longer confined to inability to defend on the
merits. Prejudice can also be found from employment interruptions, public
obloquy, anxieties concerning the continued and unresolved prosecution and the
like.” State v. Farrell, 320 N.J. Super. at 452.
Likewise,
the Court in Tsetsakas recognized that “significant prejudice may also
arise when the delay causes the loss of employment or other opportunities,
humiliation, the anxiety in awaiting disposition of the pending charges, the
drain in finances incurred for payment of counsel or expert witness fees and
the other costs and inconveniences far in excess of what would have been
reasonable under more acceptable circumstances. State v. Tsetsekas, 411
N.J. Super. at 13.
Here, defendant has suffered very significant losses of
employment, as employers performed background checks and refused to hire
defendant, even after they made employment offers. In addition, defendant lost several
professional licenses due to the outstanding charges, leading to further
economic losses. Defendant also has not
been able to obtain state licenses (including the Licensed Site Remediation
Professional license) to do professional work because of the pending,
unresolved charges. Several New Jersey
licensing boards even denied defendant the application to sit for exams,
causing defendant to lose very significant business and/or employment
opportunities. The net result of these
prolonged delays is potentially multi-million dollars in economic damages.
As a professional expert engineer, defendant has also
suffered irreparable reputation loss that essentially destroyed his career that
he worked many decades to build.
POINT
III
The
indictment must be dismissed with prejudice due to prosecutorial misconduct and
as violative of defendant’s right to due process of law under the fifth and fourteenth
amendments to the United States Constitution and under the New Jersey Constitution
as no definitions as to the general requirements of culpability (definitions of
the words “purposely,” “knowingly,” “recklessly” and “negligently” were
provided to the grand jury).
Key to this case is the defendant’s state of mind at the
time of the alleged offenses. Count 1 of
the Indictment charges a violation of N.J.S.A. 2C:39-4 which provides:
Any
person who has in his possession any firearm with a purpose to use it
unlawfully against the person or property of another is guilty of a crime of
the second degree. (Emphasis supplied).
Crucial to a violation of this statute is the purpose for
possession of the firearm—said purpose must be unlawful to constitute a violation. The unlawful purpose element is all the more
relevant in a case such as this in which the defendant legally possessed all of
the firearms. Even more significantly,
one of the key defenses here is that the defendant never possessed the
requisite states of mind to sustain any conviction and that the defendant never
intended to cause harm to anyone, other than protecting his dwelling from
intruders and attackers as he is authorized to do so by New Jersey Law, see
N.J.S.2C:3-4 and N.J.S.2C:3-6.
Counts 2 and 3 charge that the defendant committed
third-degree aggravated assault by pointing a firearm at Officers Lucas and
D’Agostino. N.J.S.A. 2C:12-1b(9) provides:
A
person is guilty of aggravated assault if he . . . knowingly, under
circumstances manifesting extreme indifference to the value of human life,
points or displays a firearm, as defined in subsection f. of N.J.S. 2C:39-1, at
or in the direction of a law enforcement officer. (Emphasis supplied).
Count 4 charges that the defendant “did recklessly create
a risk of widespread injury or damage by purposely or knowingly barricading
himself into 687 Indian Road . . . while armed with a deadly weapon, contrary
to the provisions of N.J.S. 2C:17-2c.” (Da4; emphasis supplied).
N.J.S.A. 2C:17-2c provides, in pertinent part:
A person who recklessly creates a risk of widespread
injury or damage commits a crime of the fourth degree, even if no such injury
or damage occurs.
N.J.S.A. 2C:17-2e provides: “For purposes of this
section, widespread injury or damage means serious bodily injury to five or
more people or damage to five or more habitations or to a building which would
normally have contained 25 or more persons at the time of the offense.”
Count 5 charges
that the defendant:
with purpose to hinder his own apprehension, conviction
or punishment, for the crime of possession of a weapon for an unlawful purpose,
did prevent or obstruct by means of force or intimidation Passaic County
Sheriff’s officers, from performing an act which might aid in the discovery or
apprehension or in the lodging of a charge against him, contrary to the
provisions of N.J.S. 2C:29-3b(2). (Emphasis supplied).
N.J.S.A. 2C:29-3b(2) provides:
A person commits an offense if, with
purpose to hinder his own detention, apprehension,
investigation, prosecution, conviction or punishment for an offense or
violation of Title 39 of the Revised Statutes or a violation of chapter 33A of
Title 17 of the Revised Statutes, he . . . [p]revents or obstructs by means of
force or intimidation anyone from performing an act which might aid in his
discovery or apprehension or in the lodging of a charge against him.
This statute further provides that:
An offense under paragraph (3) of subsection b. of this
section is a crime of the second degree.
Otherwise, the offense is a crime of the third degree if the conduct
which the actor knows has been charged or is liable to be charged against him
would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree
if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly person’s
offense.
The defendant is charged with third-degree hindering
apprehension. It should be noted by this
Court, that at no time during the 5-hour ordeal did anyone tell defendant that
he was under arrest for any offense.
This is critical for the disposition of this charge.
The entire Indictment must be dismissed with prejudice as
there is no indication in the grand jury transcript that instructions were
given to the grand jurors as to the definitions of culpability under N.J.S.A.
2C:2-2(b); specifically, “purposely,” “knowingly,” “recklessly,” and
“negligently.” On the day in question,
the defendant was at his computer performing his regular business during the
time of the alleged offenses (see Motion to Change Venue, Records of calls and
e-mails made by the defendant”, Da55-56).
An electronic email and telephone record was available to the
prosecutors as they seized the defendant’s computers that irrefutably showed
the whereabouts of the defendant. The irrefutable
electronic evidence shows that the defendant was inside his home and that he
was working on his business or filing appeals.
The evidence shows that he had no intent of injuring anyone, as the State
alleged, but that he wanted to save his home and business. His purpose, intent, or behavior to protect
his home is absolutely lawful and state law protects his right to defend his
home. This is clearly exculpatory
evidence available to the State. However, the State failed to provide such
exculpatory evidence to the grand jury in order to secure an indictment.
To reiterate, Count 1 requires an unlawful purpose of the
firearm; Counts 2 and 3 require “knowingly” pointing the firearm under extreme
indifference circumstances; Count 4 requires “recklessly” creating a risk of
widespread injury or damage by “purposely or knowingly” barricading himself;
and Count 5 requires the “purpose” to prevent or obstruct.
This Court must order the procurement of the SWAT team audio
and video recordings. The recordings
will prove that:
1. Defendant
didn’t want anyone to enter his home and property. Only police officers armed with Warrants are
allowed to enter such property and move defendant out. The sheriff’s employees Lucas and D’Agostino
did not have Warrants for Removal;
2. Defendant
never threatened anyone. He only stated
that there will be his own bloodshed because of the aggressive and unlawful
actions of the sheriff’s employees.
3. Defendant
never pointed a gun at anyone;
4. Officer
Celix never told defendant that he was under arrest;
5. Defendant
wasn’t told that he had committed any offense;
6. Defendant
was not told that the officers had a search or an arrest warrant;
7. Defendant
told an officer not to destroy his business equipment. Defendant was shocked that the officers
thought it was a bomb. Assistant prosecutor
Peter Roby admitted in open court before Judge Filko that the instrument was
not a bomb and that defendant had placed it there to be picked up by a vendor,
Pines Environmental, Inc. Later, officers
Lucas and D’Agostino changed their story and claimed that they thought it was a
“metal ammunition box”, also a false assertion.
Accordingly, three of the four (“purposely,” “knowingly”
and “recklessly”) types of culpability are alleged, with absolutely no
definitions given of these terms. In
addition, by failing to instruct the jury as to “negligently” the grand jury
was unfairly precluded from exonerating the defendant of all charges, for if
the grand jurors found that the defendant acted “negligently” as to each count
(as opposed to “purposely,” “knowingly” or “recklessly”) there would have been
a “no-bill.”
The following are the definitions which must have been
given to the Grand Jury:
N.J.S.A. 2C:2-2b(1) [Purposely]. A person acts purposely with respect to the
nature of his conduct or a result thereof if it is his conscious object to
engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant
circumstances if he is aware of the existence of such circumstances or he
believes or hopes that they exist. “With
purpose,” “designed,” “with design” or equivalent terms have the same meaning.
N.J.S.A. 2C:2-2b(2) [Knowingly]. A person acts knowingly with respect to the
nature of his conduct or the attendant circumstances if he is aware that his
conduct is of that nature, or that such circumstances exist, or he is aware of
a high probability of their existence. A
person acts knowingly with respect to a result of his conduct if he is aware
that it is practically certain that his conduct will cause such a result.
“Knowing,” “with knowledge” or equivalent terms have the same meaning.
N.J.S.A. 2C:2-2b(3) [Recklessly]. A person acts
recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element
exists or will result from his conduct.
The risk must be of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the circumstances known to him,
its disregard involves a gross deviation from the standard of conduct that a
reasonable person would observe in the actor’s situation. “Recklessness,” “with recklessness” or
equivalent terms have the same meaning.
N.J.S.A. 2C:2-2b(4) [Negligently]. A person acts negligently with respect to a
material element of an offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a
nature and degree that the actor’s failure to perceive it, considering the
nature and purpose of his conduct and the circumstances known to him, involves
a gross deviation from the standard of care that a reasonable person would
observe in the actor’s situation.
“Negligently” or “negligence” when used in this code, shall refer to the
standard set forth in this section and not to the standards applied in civil
cases.
If the grand jury found that the defendant acted “knowingly,”
“recklessly,” or “negligently” as opposed to “purposely” as to Counts 1 and 5,
then the grand jury would have had no choice but to no bill. Similarly, if the grand jurors found that the
defendant acted “recklessly” or “negligently” as opposed to “knowingly” as to
Counts 2 and 3, then the defendant would have been no billed. If the grand jurors found that defendant
acted “negligently” as opposed to “recklessly” as to the “risk or widespread
injury or damage” in Count 4; or “recklessly” or “negligently” as opposed to
the “purposely or knowingly barricading himself” elements, then he would have
been no billed.
The bottom line is that the failure of the State to
define the crucial requirements of culpability deprived defendant of any
meaningful consideration of each and every element of the charges by the grand
jury. This is particularly egregious
when the state of mind of the defendant is a key issue as to each charge.
The grand jury “‘stand[s] between the defendant and the
power of the State, protecting the defendant from unfounded prosecutions.’” Article I, Paragraph 8, “is a constitutional
protection that enhances the integrity of the charging process.” Id. at
139. “[T]he grand jury’s core purpose is
to ‘determine whether the State has established a prima facie case that a crime
has been committed and that the accused has committed it,’ and it stands as
‘the primary security to the innocent against hasty, malicious and oppressive
persecution.’” State v. Francis, 191 N.J. 571 (2007).
Our courts have not been reluctant to scrutinize grand
jury proceedings where the decision-making process was fundamentally unfair:
We have demonstrated a greater willingness to review
grand jury proceedings where the alleged deficiency in the proceedings affects
the grand jurors’ ability to make an informed decision whether to indict. State
v. Murphy, 110 N.J. 20 (1988).
It is abundantly clear that the right to indictment
before the grand jury implies the right to due process of law and fundamental
fairness before the grand jury. See State v. Engle, 249 N.J. Super. 336, 359
(App. Div. 1991); see also State v. Riley, 242 N.J. Super. 113 (App. Div.
1990); State v. Gaughran, 260 N.J. Super. 283 (Law Div. 1992); State v. Porro,
152 N.J. Super. 259 (App. Div. 1977).
Here, in Stephanatos, the egregious omission of
the culpability and key elements of the case (the defendant’s state of mind and
belief at the time of the purported offense) mandates dismissal of the
indictment with prejudice.
POINT
IV
The
indictment must be dismissed with prejudice as violative of defendant’s right
to due process of law under the fifth
and fourteenth amendments to the United States Constitution and under the New Jersey
Constitution as the grand jury was never advised that the defendant was entitled
to show that he was motivated by an honestly held (but unreasonable) belief.
Defendant incorporates by reference the arguments and
authorities in Point III, supra, and submits that the grand jury instructions
are fatally flawed since the grand jury was never advised that a defense to
Counts 1 through 3 of the Indictment is that the defendant was motivated by an
honestly held but unreasonable belief.
After the fraudulent self-certification of the co-conspirator
Robert Del Vecchio, as discussed supra, an Eviction Notice (dated May
20, 2011) was sent to the defendant from Richard H. Berdnik, the Passaic County
Sheriff. This Eviction Notice states:
We
have been commanded, by virtue of a Court Order issuing out of the Superior
Court of New Jersey, to VACATE the premises now occupied by yourself and your
family members.
We
hereby inform you that you must VACATE said premises before 9:00 a.m. on June
28, 2011.
Should
you fail to do so, you, your personal belongings and your household furnishings
will be removed IMMEDIATELY on that date.
This
is the only notice you will receive from this office.
If
you vacate voluntarily before the scheduled eviction date, kindly notify the
following immediately:
Robert
A. Del Vecchio, Esq.
P.O.
Box 561
Hawthorne,
NJ 07507. (Da47).
This Court should note that the “Court Order” cited by
the sheriff is the one signed by the Clerk of Mercer County based on the
fraudulent self-certification of Robert Del Vecchio. There was no judge signing that possession
paperwork, just a Clerk of another county.
To this date, no explanation has been provided by the State as to why a
possession issue was signed by a Mercer County Clerk for a property located in
Passaic County and why the possession issue was not adjudicated by a Law
Division Judge in Passaic County as is required by state law. This Court should also note that for entering
and removing a person from a residential property, N.J.S.A. 2A:18-57 requires that a judgment of possession must be
issued by a Law Division Judge, followed by a Warrant for Removal. State law also mandates that a notice be
provided to the person in possession that he has the right to apply to the
court for a stay of execution of the warrant, along with other notifications. The co-conspirator Del Vecchio was able to
avoid all that by signing a fraudulent self-certification.
On May 27, 2011, a letter was faxed to the Passaic County
Sheriff (from Carla J. Van Vorst; Co-Owner, Metropolitan Environmental
Services), stating the following:
Dear
Sheriff:
Metropolitan
Environmental Services (Metropolitan) is in receipt of an eviction notice. The notice states that there are no tenants
on the property. There must be some
mistake, as we have been a tenant on this property since circa 1993. It is obvious that a wrongful certification
has been provided to the sheriff’s office and we are asking that punish (sic)
the wrongdoer. Furthermore, Mr. Basil
Stephanatos informed us that there are two pending appeals on the matter. The docketed appeals are: A-00003900-10 and
A-003898-10T4. You cannot possibly
proceed with any eviction notice, unless and until the appeals are processed by
the Appellate Division. Mr. Stephanatos
indicated that he will file a complaint against ATF with the U.S. District
Court in Newark very-very soon.
He
also indicated that Senator O’Toole and the Governor and Attorney General’s
office are investigating these obviously criminal activities by American Tax
Funding.
Sincerely,
Carla
J. Van Vorst
Co-Owner
METROPOLITAN
ENVIRONMENTAL SERVICES
687
Indian Road
Wayne,
New Jersey 07470-4923 (Da50).
Despite this correspondence, the sheriff has been
insisting that he never received that correspondence indicating that appeals
are pending.
The Passaic County (Evictions Dept.) sent a letter to
Carla J. Van Vorst (dated May 31, 2011) stating:
Our
office is in receipt of your fax (copy following). Please be aware that Sheriff takes direction
from either Plaintiff Attorney or the Court (judge).
This
eviction is to proceed as scheduled on June 28, 2011 9 am unless we are
directed by either Plaintiff Attorney or Court otherwise. Also, you state in
your fax that the eviction notice says “there are no tenants on the property”;
this is not true. The notice states
“NOTE: THIS EVICTION NOTICE DOES NOT APPLY TO TENANTS”. If you are, in fact, a TENANT, the eviction
notice does not pertain to you. Sheriff
does not evict tenants. That is a matter
you would need to take up with the Plaintiff Attorney.
(Da52).
Based on that letter, defendant felt assured that the
eviction would not move forward and he would be allowed to stay at the property
while appeals were pending.
In addition to filing two appeals, in June 2011, defendant
had also filed a suit to vacate the tax deed (Passaic County, Law Division
L-2973-11). Defendant even sent a letter
to judges, to the co-conspirators Robert Del Vecchio, Matthew Marini and to the
sheriff’s office that appeals were pending and they in fact responded to the
letter, acknowledging the appeals.
Defendant Stephanatos submits that the Passaic County
Sheriff’s Department had no right to remove him from his house since there was
a tenant (Metropolitan Environmental Services) in the house and appeals were
pending. Defendant submits that,
contrary to the Certification of Robert A. Del Vecchio (Da48-49) there was, in
fact, a tenant in the premises as confirmed by the letter to the Sheriff dated
May 27, 2011, advising that there were tenants on the property and that defendant
had no possessory rights. As this Court
hopefully understands, no possessory rights were ever determined in this case.
The Tax Sale Law only addresses title to a property and
not possession. The possession is a law
division matter, and not an equitable matter.
Judge McVeigh had no power or authority to interfere with the possession
of defendant’s residence. Yet she did. The Forceful Entry and Detainer statutes
clearly state that the matter of possession of residential property must go
before a Law Division Judge. Thus, since
the eviction order was not signed by a Law Division judge sitting in Passaic
County, it was void ab initio and had no power or effect. What the sheriff (and the conspirators) did
was illegal.
As explained infra, the defendant was entitled to have
the grand jury advised that an honestly held (though unreasonable) belief is a
defense to all of the charges.
In State v. Williams, 168 N.J. 323 (2001), the New
Jersey Supreme Court reversed the defendant’s conviction for second-degree
possession of a weapon for an unlawful purpose since the defendant was entitled
to show that he was motivated by an honestly held but unreasonable belief that
force was required to protect his wife, and the trial court committed plain
error by failing to give an unrequested instruction that even if the jury found
that defendant’s explanation to be unreasonable, it nevertheless had to
consider whether he honestly believed that force was necessary. The Court in Williams reached the
conclusion that the jury instructions in that case did not adequately define
what specific unlawful purpose, if any, defendant harbored when he shot at the
victim.
As explained in State v. Harmon, 104 N.J. 189 at
205 (1985): “Thus one may at once be guilty of an aggravated assault through
pointing a weapon at another yet be innocent of possession of the weapon for an
unlawful purpose.” (Citing State v. Mieles, 199 N.J. Super. 29
(App. Div.) certif. denied, 101 N.J. 265 (1985). As explained in Williams, supra, “Just
as lawful use of a weapon will not necessarily legitimate prior possession for
an illegal purpose, illegal use of a weapon alone does not establish the
necessary mental element under that statute. At 340. “The issue of unlawful possession turns on
‘the purpose for which defendant possessed the gun and not how he used it.’” State
v. Blanks, 313 N.J. Super. 55, 73 (App. Div. 1998) (quoting Mieles,
supra, 199 N.J. at 41). As further
explained in Williams, “Where, as here, the original possession was
indisputably lawful, the court has a special obligation to relate the alleged
unlawful purpose to the evidence. Id. at 341, citing State v. Villar,
150 N.J. 503 (1997).
Defendant submits that the prosecutor before the grand
jury had the same duty to present the exculpatory defense that if defendant was
motivated by an honest (though unreasonable) belief (and any exculpatory
evidence as to such), then he was entitled to a no bill under the law.
Under
New Jersey law, persons in lawful possession of a residential property have a
recognized property interest. Also, the right to own and possess property is
guaranteed by Article I, par. 1 of the State Constitution. Furthermore,
defendant had full equity in his home and had filed a timely lawsuit in the Law
Division to Vacate the Tax Deed, Case #
L-2973-11, after Judge McVeigh told him to file a new suit in the Law Division
since Judge Riva did not hear the prior suit in 2010. At the same time, defendant also filed for a
stay of the proceedings. These are the
reasons for the conspirators acting in haste and with criminal intent in
removing defendant from his residence and place of business without following
the Forceful Entry and Detainer statutes.
It is submitted that the Law Division would have found in defendant’s
favor as a matter of law and the conspirators acted quickly by circumventing
the New Jersey Forceful Entry law.
Defendant also filed two
appeals: one from the L-2672-09 case and one from the F-9241-09 case. The appeals were docketed as follows: A-4685-10 and A-3900-10
(appeal from L-2672-09) Team 4. At the
same time, defendant applied for a stay from the foreclosure judgment, to
ensure that a higher court and/or a federal court would hear his appeals.
Defendant
had a home-based business in the premises (Metropolitan Environmental
Services). Also, it was believed that
the New Jersey Appellate Division would have vacated the judgment issued by a
Chancery Judge on the basis that the Chancery Judge failed to weigh the
significant equity of the homeowner and failed to perform fact finding and applying
the applicable law.
In the case sub judice, the State knew
defendant’s intentions and the reasons for his actions, which were documented
extensively and should have been presented for the grand jury’s
consideration. The indictment must be
dismissed with prejudice due to the state’s conduct recounted above.
POINT
V
The
indictment must be dismissed with prejudice as the state never instructed the
grand jurors as to the applicable defenses of ignorance, or mistake, duress or
entrapment.
Defendant incorporates by reference the arguments and
authorities, supra, and submits that the entire indictment must be
dismissed with prejudice as the grand jurors were never advised as to the
applicable defenses of ignorance, mistake, duress or entrapment. It is the defendant’s position that the
Passaic County Sheriff never had any valid eviction order for the residential
property of the defendant as such an order must be signed by a Law Division
Judge.
In addition, the defendant (who has a J.D. degree),
believed that under Payton v. New York, 445 U.S. 573 (1980), a suspect
should not be arrested in his house without an arrest warrant (in spite of
probable cause to arrest him). This was
the reason that defendant did not get out of his home. He was never shown a valid arrest warrant. Furthermore, at no time did anyone inform the
defendant that he was under arrest.
Defendant was on the phone for a long time with officer Celix, but Celix
never once stated that defendant had committed any crime. Thus the charges of hindering apprehension
are absolutely fraudulent.
Given the clear legal distinctions between an arrest
warrant and a search warrant, the fact that the Sheriff’s Officers later
obtained a search warrant does not provide any justification for the
defendant’s arrest.
N.J.S.A. 2C:2-4 [Ignorance or mistake] provides:
a. Ignorance or mistake as to a matter of fact or law is
a defense if the defendant reasonably arrived at the conclusion underlying the
mistake and:
(1) It negatives the culpable mental state required to
establish the offense; or
(2) The law provides that the state of mind established
by such ignorance or mistake constitutes a defense.
b. Although ignorance or mistake would otherwise afford a
defense to the offense charged, the defense is not available if the defendant
would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or
mistake of the defendant shall reduce the grade and degree of the offense of
which he may be convicted to those of the offense of which he would be guilty
had the situation been as he supposed.
c. A belief that conduct does not legally constitute an
offense is a defense to a prosecution for that offense based upon such conduct
when:
(1) The statute defining the offense is not known to the
actor and has not been published or otherwise reasonably made available prior
to the conduct alleged, or
(2) The actor acts in reasonable reliance upon an
official statement of the law, afterward determined to be invalid or erroneous,
contained in (1) a statute, (b) judicial decision, opinion, judgment, or rule,
(c) an administrative order or grant of permission, or (d) an official
interpretation of the public officer or body charged by law with responsibility
for the interpretation, administration or enforcement of the law defining the
offense; or
(3) The actor otherwise diligently pursues all means
available to ascertain the meaning and application of the offense to his
conduct and honestly and in good faith concludes his conduct is not an offense
in circumstances in which a law-abiding and prudent person would also so
conclude.
The defendant must prove a defense arising under
subsection c. of this section by clear and convincing evidence.
As explained by the New Jersey Supreme Court in State
v. Sexton, 160 N.J. 93 (1999), if recklessness is required as an element of
the offense, a mistake that is merely negligent or faultless may be asserted as
a defense. The Sexton Court
explained that the New Jersey Code of Criminal Justice provides that no person
shall be guilty of an offense unless the person “acted purposely, knowingly,
recklessly or negligently, as the law may require, with respect to each
material element of the offense.” N.J.S. 2C:2-2a. An example of how a mistake of fact may
negate culpability is explained in Sexton:
[I]f a person is ignorant or mistaken as to a matter of
fact . . . the person’s ignorance or mistake will, in appropriate
circumstances, prevent the person from having the requisite culpability with
respect to the fact . . . as it actually exists. For example, a person who is mistaken (either
reasonably, negligently, or recklessly) as to which one of a number of similar
umbrellas on a rack is the person’s and who takes another’s umbrella should be
afforded a defense to a charge of theft predicated on either intentionally or
knowingly taking the property of another . . . A reckless mistake would afford
a defense to a charge requiring intent or knowledge-but not to an offense which
required only recklessness or negligence.
Similarly, a negligent mistake would afford a defense to a charge
predicated on intent, knowledge, or recklessness-but not to an offense based on
negligence. State v. Cavness, 80 Hawai’i 460, 911 P.2d 95, 99-100 (Ct.
App. 1996). Sexton, supra, 160
N.J. at 101.
In Sexton, supra, the defendant was convicted of
reckless manslaughter as a lesser-included offense of murder, and unlawful
possession of a handgun without a permit.
The defendant’s claim at trial was that he believed the gun was not
loaded when he pointed it at the victim.
The defense claimed the gun went off accidentally and killed the
victim. The Appellate Division reversed
on several grounds, including that the trial court should have charged the jury
that the State bore the burden of disproving beyond a reasonable doubt
defendant’s mistake-of-fact defense, and that the failure to do so was plain
error. Supra, 160 N.J. at 97. The
Supreme Court in Sexton affirmed the Appellate Division’s reversal, and held
that the defendant’s alleged mistaken belief that the gun he fired at the
victim was not loaded related to whether the state had failed to prove an
essential element beyond a reasonable doubt. Id. at 107.
The grand jury must be presented with sufficient evidence
and legal instructions to determine whether an indictment is warranted, State
v. Morrison, 188 N.J. 2, 12, 20 (2006).
It is not a “rubber stamp” or “play-toy” for the prosecutor. State v. Gaughran, 260 N.J.
Super. 283, 290 (Law Div. 1992) (quoting State v. Engel, 249 N.J. Super. 336,
359 (App. Div. 1991)). It is therefore
“essential that the jurors be informed of the relevant facts,” ibid., and be
given adequate legal instructions concerning the charging options available,
and the elements of those charges, Morrison, supra, 188 N.J. at 12, 20.
Although an indictment is presumed to be valid, “a
defendant with substantial grounds for having an indictment dismissed should
not be compelled to go to trial to prove the insufficiency.” State v.
Graziani, 60 N.J. Super. 1, 22 (App. Div. 1959), aff’d, 31 N.J. 538 (1960).
An indictment should be dismissed as facially deficient “if it fails to charge
an offense,” by failing to charge “‘all of the critical facts and each of the
essential elements which constitute the offense alleged.’” State v. Bennett, 194 N.J. Super. 231,
234 (App. Div. 1984).
N.J.S.A. 2C:2-9 provides that it is an affirmative
defense to a crime where the actor engaged in the conduct because he was
coerced to do so by the use of, or threat to use, unlawful force against his
person or that of another. The standard is objective, i.e., whether a person of
reasonable firmness in the accused’s situation would have been unable to
resist. State v. Toscano, 74 N.J. 421, 443 (1977). While the accused’s
“situation” excludes the idiosyncrasies of the individual’s temperament, it
permits the jury to consider his “attributes,” such as the accused’s age,
health, etc. Elements to consider in
assessing the viability of the defense include the nature of the threat, its
immediacy and gravity; the seriousness of the crime committed; the identity of
the person endangered; the possibility of escape or resistance; and the
opportunity to avoid the act by seeking official assistance. Here, there is no question that defendant
tried to talk to the authorities to ask them to intervene to prevent the officers
from entering the home. Defendant called the Wayne Police, as phone records
show. No person who allegedly tried to
assault a sheriff’s employee would ask help from the government entities and
even the police.
There were two forms of entrapment under common law.
Subjective entrapment existed when police planted a criminal plan in the mind
of an innocent person who otherwise would not have committed the crime, in
order to institute a criminal prosecution against the person. Subjective
entrapment takes into consideration the predisposition of the defendant to
commit the crime. Subjective entrapment protects the unwary innocent but not
the unwary criminal. State v. Johnson, 127 N.J. 458, 464 (1992); State
v. Rockholt, 96 N.J. 570, 576 (1984).
Here, it is unquestionable that but for the illegal acts of the sheriff’s
employees (lack of Warrant for Removal), no incident would have ever
happened. The grand jury should have
been told about the defense of entrapment.
Objective entrapment exists when police conduct caused an
average law-abiding citizen to commit a crime or when police conduct was so
egregious as to impugn the integrity of the court that permitted the
conviction. Although the predisposition
of the defendant to commit the crime was not totally irrelevant, the focus of
objective entrapment was the wrongfulness of police conduct. State v. Johnson,
127 N.J. 458, 464 (1992); State v. Molnar, 81 N.J. 475, 484 (1986); State v.
Talbot, 71 N.J. 160, 168 (1976).
The Code encompasses the subjective and objective
elements of common-law entrapment. The Code requires an analysis of the
interrelation between defendant’s predisposition and the police conduct and a
determination of which caused the commission of the crime. To constitute
entrapment, police conduct must involve 1) “methods of persuasion or
inducement” that 2) create “a substantial risk” of the commission of a crime 3)
by a person not otherwise “ready to commit” the crime. N.J.S.A. 2C:2-12a(2). In this case, it is unquestionable that but
for the illegal acts of the sheriff’s employees, no incident would have ever
happened. The grand jury would have most
likely found that the defendant was entrapped by the sheriff’s employees and
therefore should have been instructed to consider the said defense.
Due process entrapment exists when “the conduct of
government is patently wrongful in that it constitutes an abuse of lawful
power, perverts the proper role of government, and offends principles of
fundamental fairness.” Due process entrapment “centers around two major
concerns: the justification for the police in targeting and investigating the
defendant as a criminal suspect; and the nature and extent of the government’s
actual involvement in bringing about the crime.”
Defendant must prove both the objective and subjective
aspects of statutory entrapment by a preponderance of the evidence. N.J.S.A.
2C:2-12b; State v. Rockholt, 96 N.J. 570, 577, 581 (1984). The
existence of statutory entrapment is determined by the trier of fact. Regarding
due process entrapment, the defendant has the burden of coming forth with
evidence to support the defense, which the State must then disprove by clear
and convincing evidence. The existence of due process entrapment is a question
of law to be resolved by the court. State v. Florez, 134 N.J.
570, 584, 590-91 (1994).
A defendant’s denial of the commission of a crime does
not preclude assertion of an entrapment defense. Mathews v. United
States, 485 U.S. 58, 108 S.Ct. 883, 90153 L. Ed. 2d 54 (1988); State
v. Branam, 161 N.J. Super. 53 (App. Div. 1978), aff’d o.b., 79 N.J. 301
(1979).
This should also been submitted to the grand jury for its
consideration, but wasn’t.
Point
VI
The
indictment must be dismissed with prejudice as the state never instructed the
grand jury as to the New Jersey law of self-defense.
Defendant incorporates by reference the arguments and
authorities, supra, and submits that, even if the grand jury testimony
of Officers Lucas and D’Agostino (that defendant had a gun pointed at them) is
believed (which is unbelievable, based on the analysis presented under POINT
I, supra), the defendant was allowed to possess the legally-owned weapon(s)
and to use it to defend himself and his property from intruders and individuals
who peer through his window as a means of constructive authority and/or against
individuals who perform an unlawful entry and detainer or removal. As this defense was not provided to the Grand
Jury, the indictment must be dismissed with prejudice.
One exception to the duty to retreat (N.J.S.A.
2C:3-4b(2)(b)), if the actor is in his or her own home at the time of the
attack (the so-called “castle doctrine”). See State v. Gartland, 149
N.J. 456, 467 (1997). N.J.S.A.
2C:3-4b(2)(b)(i) provides that: “The actor is not obligated to retreat from his
dwelling, unless he was the initial aggressor.”
There is no question here that the defendant was attacked
inside his own home (the porch is considered a part of the dwelling) as Lucas
was illegally peering inside his dwelling from the front side window and Lucas
and several other sheriff employees came to illegally evict him on June 28,
2011 without first obtaining a Warrant for Removal. N.J.S. 2A:39-1 reads as
follows:
Unlawful entry prohibited. No person shall enter
upon or into any real property or estate therein and detain and hold the same,
except where entry is given by law, and then only in a peaceable manner. With
regard to any real property occupied solely as a residence by the party in
possession, such entry shall not be made in any manner without the consent
of the party in possession unless the entry and detention is made pursuant to
legal process as set out in N.J.S.2A:18-53 et seq., as amended and supplemented.
Defendant knew that only through a removal action before
a Law Division judge could the sheriff remove him. The State admitted to Judge Filko that no
Warrant for removal had been obtained by the Sheriff in violation of New Jersey
law. See N.J.S. 2A:18-53 et seq. That
was the reason defendant kept his doors closed and locked with deadbolts at all
times. The defendant also knew that the
sheriff’s employees are in fact hired by the conspirators and they act as agents
of the conspirators and not necessarily as an agent of the state. Lucas admitted in his testimony that he was
hired by conspirator Robert Del Vecchio.
Sheriff’s records, obtained through discovery, also show that the
sheriff was paid several thousand dollars for the services they performed for
the conspirators ATF, Robert Del Vecchio, and others.
N.J.S.A. 2C:3-4(c) provides special rules for the use of force,
constructive authority or deadly force on an intruder into one’s dwelling:
Notwithstanding
the provisions of N.J.S. 2C:3-5, N.J.S. 2C:3-9, or this section, the use of
force or deadly force upon or toward an intruder who is unlawfully in a
dwelling is justifiable when the actor reasonably believes that the force is
immediately necessary for the purpose of protecting himself or other persons in
the dwelling against the use of unlawful force by the intruder on the present
occasion. As explained in Gartland,
supra, “under this provision, deadly force may be used against an intruder to
counter any level of unlawful force threatened by the intruder.”
In State v.
Bilek, 308 N.J. Super. 1 (App. Div. 1998), the Court stated that the jury should
have been expressly told that pointing a loaded firearm is “force” to which
defense of one’s dwelling may apply. As
explained by the Appellate Division in Bilek, “the general charge seems
to require a reasonable belief that the defendant is faced with actual or
threatened death or serious bodily injury.
A lesser degree of threat justifies force in defending one’s dwelling
under N.J.S.A. 2C:3-4(c), that is to say, only the threat of “personal injury”
is necessary. N.J.S.A. 2C:3-4(c)(2)(a). Id. at 11.
As further explained by the Bilek Court:
Additionally, and perhaps most critically, the general
instruction emphasizes the proportionality of the force used to self-defend
against the aggressor’s unlawful force. Defense
of one’s home pursuant to N.J.S.A. 2C:3-4(c) is quite distinct, and does not
require such proportionality.
Significantly to Stephanatos, the Bilek
Court also found that the doorway or entranceway of one’s dwelling is part of
the “dwelling” for purposes of the statute addressing the right to defend one’s
own dwelling. Id. at 11. See State v. Bonano, 59 N.J. 515, 520 (1971); State
v. Martinez, 229 N.J. Super. 593 (App. Div. 1989). In other words, the porch where these two
heavily armed individuals claim they were assaulted is considered a part of the
dwelling.
A number of facts prove that the sheriff’s employees came
onto defendant’s property to illegally remove him from his dwelling and place
of business:
1.
The sheriff leaves an eviction notice at the
dwelling of the defendant. The defendant
or his representative/co-tenant then sends a fax giving notice to the sheriff
for receipt of the eviction note and notifying the sheriff of criminal acts by
Robert Del Vecchio and pending appeals.
Sheriff acknowledges the fax and sends a fax to the defendant stating
that the sheriff will remove the defendant on June 28, 2011.
2.
The sheriff fails or refuses to obtain a
Warrant of Removal as is mandated by New Jersey’s Unlawful Entry Laws. This fact was confirmed in November 2011 by
the State in a hearing before Judge Filko.
In fact, the very first thing that Judge Filko asked the State was:
Q: (Judge
Filko): “did the sheriff have a Warrant for Removal?”.
A:
(Peter Roby): “No, Your Honor.”
The same scenario repeated
itself before Judge McGeady in Bergen County.
3. Lucas
testified before the grand jury that he knew that the defendant had said “I am
not going anywhere”. So, in his own
words, this individual knew that he could not enter the defendant’s home unless
and until he obtains a law-mandated Warrant for Removal, as he was not going
anywhere. Only armed with a Warrant for
Removal could the sheriff enter defendant’s home and forcibly remove him. If he had a Warrant, then the defendant could
not have objected to his entry. But,
Lucas never obtained such a Warrant and listened to Robert Del Vecchio (acting
as his agent) to go to the defendant’s home and forcibly remove him; which he
did.
4. Lucas
tried to convince the grand jury that he was only serving papers and that he
was not trying to forcibly and illegally remove the defendant from the dwelling. Of course, this is another Lucas fabrication,
because there were several sheriff’s officers dispatched that day to the
property, making it very clear that these individuals went there to forcibly remove
the defendant in violation of the unlawful entry laws. The defendant had already received the
eviction papers, there was no need to serve the very same papers. This Court should also note that the Passaic
County’s Sheriff Webpages indicate that “The Sheriff’s duties are to act as the
agent for the Plaintiff”. Thus, according to long-established law, the
sheriff’s officers were acting as the agent for the conspirators ATF or Robert
Del Vecchio and not as law enforcement officers (i.e., they were not acting as
agents of the state for the detection, investigation or apprehension of
crime. See 2C:25-19 - Definitions
"Law
enforcement officer" means a person whose public duties include the power
to act as an officer for the detection, apprehension, arrest and conviction of
offenders against the laws of this State.
Here, the duties of Lucas and D’Agostino were not to work
as police officers but as process servers.
Furthermore, the Passaic County Sheriff (being a law enforcement agency that
employs both law enforcement and non-law enforcement staff) has a number of
divisions, including process server division, law enforcement division, K-9
division and administrative division.
Lucas and D’Agostino did not belong to the law enforcement division, but
they worked for the process server division.
In fact, the sheriff admitted so in a fax sent to the defendant where
the sheriff stated that he “only takes instructions from the plaintiff’s
lawyer”, proving that they were not working necessarily for the state but for
the conspirators Robert Del Vecchio and ATF.
The grand jury should have been instructed that the pointing
of a weapon can be used by a homeowner in self-defense when people are trying
to enter or are at his dwelling without a lawful purpose or without having a
Warrant for Removal. The grand jury
should also have been instructed that the homeowner does not necessarily intend
to use the weapon against a subject intruder or another threat, but it might be
intended to exercise control over the situation, and prevent the breaking into
a home or send intruders away from his property. Here, such constructive authority would have
been applicable, especially since the officers were both armed and trained to
shoot to kill and were trying to illegally evict the defendant without
possessing a law-mandated Warrant for Removal signed by a Law Division Judge.
In Stephanatos, the defendant has irrefutable
evidence (emails and phone records), showing that he was conducting his
home-based business during June 28, 2011, as he had been doing for many
years. He was also communicating with
the Legislature, the Governor’s office, the U.S. Attorney’s office, the FBI and
the courts, as he has been doing for several years. The totality of the circumstances analysis
shows that he never had any intent to cause injury to anyone, other than
protecting his home from unlawful intruders.
See State v. Morrison, 188 N.J. 19 (2006) regarding
fact-sensitive analysis based on the totality of the circumstances.
Furthermore, it is absolutely lawful to carry a gun
inside your home or business or premises that you occupy. See 2C:39-6-Exemptions. e. Nothing
in subsections b., c. and d. of N.J.S.2C:39-5 shall be construed to prevent a
person keeping or carrying about his place of business, residence, premises or
other land owned or possessed by him, any firearm..”.
In summary, the state failed to instruct the grand jury
of defendant’s right to carry a gun inside his home or business or premises
that he occupies and his right to defend his home from intruders or attackers. The state should have instructed the grand
jurors that defendant had the right to defend himself and/or his dwelling
and/or business from threats and unlawful intrusions. Once again, on this ground alone, the
indictment should be dismissed.
POINT
VII
The
indictment must be dismissed with prejudice due to the use of false evidence to
mislead the grand jurors to obtain the indictment; the defendant’s Motion to
Suppress should be granted because of an illegal search and seizure.
Defendant incorporates by reference that arguments and
authorities in Points I through VI, supra, and submits that Sheriff’s
Officers Lucas and D’Agostino both lied before the grand jury. It is the defendant’s position that between
their investigation reports and the grand jury testimony, officers Lucas and
D’Agostino have presented at least seven different scenarios of what
happened on June 28, 2018. That is, seven
different scenarios they present in their own words (either written or spoken),
without even being cross-examined by the defense.
The contradictions, omissions and different scenarios
presented and memorialized by the officers were not presented to the grand jury. It is submitted that the State had a duty to
inform the grand jury of the deception and lack of credibility of the
officers. The grand jury was mislead and
this is impermissible. The officers are
contradicted on almost all material details.
There are contradictions within each officer’s version of events and when
one compares one officer’s version with the other officer’s recitation of
facts. The legal maxim of false in one,
false in all is self-evident in this case.
Importantly, physical facts and evidence in this case negates the
officers’ version of the incident. The
defendant’s testimony is crucial in undermining the officers and the State’s
case. The defendant is corroborated by
the physical evidence. The defendant
also would testify about the genesis and background leading up to the incident
and the conduct and motivation of the conspirators and principals and their
illegal actions under the law, as well as the manipulation of the Sheriff’s
Department by private parties for their financial benefit to the detriment of
the defendant – with the intent to unlawfully take the defendant’s hard-earned
property.
Importantly, defendant’s prior counsel, Carl J Herman,
Esq. of West Orange, N.J. wrote a letter dated August 25, 2011 addressed to
Assistant Prosecutor Andrew Palestini.
Mr Herman wrote, “As I mentioned, Mr Stephanatos may wish to testify at
any grand jury proceedings in this case.
Kindly notify this office when this matter is scheduled or grand jury so
that I can discuss the above with my client.”
Defendant wanted to testify before the grand jury, but neither he or his
attorney was notified of the date of presentation. This in itself should mandate a dismissal of
the indictment so that in the event of a re-presentation the defendant will be
able to testify as to a corroborated state of events. It violates due process and fundamental
fairness to permit an unjust and misleading grand jury presentation to stand
with all of its adverse consequences.
Defendant requests an evidentiary hearing so that he can testify as to
the true factual narrative and elicit corroborating evidence to demonstrate
that the grand jury presentation consisted of false and misleading
testimony. The fact that he wanted to
appear at the grand jury and was deprived of an opportunity to testify,
mandates a hearing at this stage to correct an injustice. At such a hearing, defendant would testify
and produce photographs of where Officer Lucas was and that he trespassed and
was illegally peering into defendant’s dwelling place in violation of the
Fourth Amendment to the United States Constitution and N.J. Const, Art. 1, Par
7. This was done without a Warrant for
Removal. Lucas later claimed that he was
just coming up the steps and he was
assaulted at about 8:50 am, despite the fact that electronic records obtained
from defendant’s business computer showed that he was sending emails to his
business clients as of 8:55 am and earlier.
Lucas also claimed that a Pelican scientific case used by vendors of defendant’s
business was a metal ammunition box, a fraudulent assertion that was refuted
before Judge Filko by Prosecutor Roby. The above-stated facts are also part and
parcel of the defendant’s motion to suppress evidence because of an
unconstitutional search and seizure before a search warrant was obtained. An evidentiary hearing must be held on the
motion to suppress.
The officers lied when they stated that the defendant had
his front door open and his storm door shut and that they were able to see the
defendant pointing a gun at them through the glass storm door. (Lucas testified
to this at GJT10-24 to 11-12; D’Agostino testified to this at GJT16-1 to 17).
It is the defendant’s contention that he had the front
door (and all other doors) closed and locked with a deadbolt. He had placed a business sign in the front
door so that the Sheriff’s Officers would see that there was a tenant on the
premises and that they could not proceed with the illegal removal without a
Warrant for Removal obtained from a Law Division Judge in compliance with the
Unlawful Entry and Detainer Laws of this state.
Had defendant left the door open, they would not have been able to see
the business sign.
It makes no sense that defendant would keep the front
door open for the officers to come in, when in fact he did not want anybody to
come inside his home while the appeals were pending in the appellate courts and
there was a lawsuit in the Law Division to vacate the tax deed. Defendant
knew that if he left a door open, he was actually inviting the officers to
enter his home. Furthermore, the
officers’ reports all show that defendant’s back door was locked with a
deadbolt; his garage was locked with a deadbolt; and his car was also
locked. This was done to prevent anybody
from coming inside defendant’s home, especially that day. Testimony as to this will be elicited at the
motion to suppress.
During the grand jury proceedings, officer Lucas also lied
to the grand jury when he said that he was only trying to serve process
papers. This is an obvious fabrication,
as he also testified that several officers were dispatched during that day in
two sheriff’s vehicles with the specific intent to forcefully remove defendant
without obtaining a Warrant for Removal from a Law Division Judge. The process papers he referred to had already
been delivered to defendant. How come
several officers were attempting to re-deliver the same papers?
Testimony would also be adduced that it was impossible to
see inside the house from the front door in the early morning hours. Because of this, Lucas went behind a
philodendron subincisum planter and placed his face at the side window so that
he could see inside the home. This is
also part of the illegal search, as well as evidencing false grand jury
testimony. After the above, Lucas
alleged that he went behind the yew and rhododendron bushes where he claimed
that he fell and injured his shoulder.
Lucas later claimed that he was just coming up the steps and he was
assaulted. Lucas also claimed that a Pelican scientific case used by vendors of defendant’s
business was a bomb; when no bomb was found he then claimed that he thought it
was a “metal ammunition box”, which was not true. Lucas also claimed that he saw a “shotgun”. This is what was reported to the other
officers and to the media. No “shotgun”
was ever found. Lucas then changed his
story after he saw the defendant’s lawful guns. He claimed that he saw a rifle instead.
Defendant has irrefutable evidence (email and phone logs)
showing that he was either on the computer doing business work or calling state
officials right at the time that these sheriff’s deputies claim that they saw
defendant through an open front door. For example, Lucas testified that he arrived
at the property at 8:50 am. There is an
electronic record that shows that defendant sent an e-mail to one of his
clients at 8:55 am. This conclusively
proves that defendant was at his office computer at the back of the house
(about 50-feet away from the front door) doing his normal daily business. This puts the “big lie” to the claim that at
around 8:50 to 8:55 the officers saw defendant pointing a gun at them as they
were walking up the front porch steps.
Another reason that the front doors were both closed is
the following: defendant has window-mounted
air conditioning units. He would take the air conditioning units off the
window around mid-September and he would install them around Memorial Day.
When he installed the air conditioning units, he kept all the doors and the
windows closed, so that he did not lose energy.
Another reason he always kept the doors closed is that his home office was
located at the back of the dwelling and he could not hear very well what was
happening at the front of the home.
Since the home is located in a rather isolated, wooded area of Wayne, it
has been burglarized before. The lack of
hearing and the fear of burglary had made defendant keep all the doors locked
at all times. Defendant very rarely used
the front doors, as the garage entrance is located closer to the back door
entrance. The computer electronic record
was in the possession of the State before the grand jury proceedings.
The Pelican case was utilized by the State at the grand jury
to give the false impression that defendant had pre-planned an assault and he
had stockpiled ammunition in a metal box.
This was a highly prejudicial fabrication. Who would place a metal ammunition box at his
front steps, leave the front door open for the officers to come inside the home
to illegally remove him, and then go back 50 feet away from the door to the
back office and start writing emails and doing business with his clients? And remember: defendant is a highly educated
individual.
The State has admitted that the alleged “metal ammunition
box” was a rental instrument contained inside a plastic protective case (called
Pelican case) to be picked up by a vendor of defendant’s business, Pine
Environmental, Inc., the morning of June 28, 2011. The prosecutor during the grand jury proceedings
said to the grand jury that the Sheriff’s Officers thought that the business instrument
was “a metal ammunition box”, giving the impression to the grand jury that
defendant was prepared for a battle and had a metal ammunition box at his front
porch. It wasn’t even metal – it was
plastic. It was totally inconceivable to
portray defendant as a dangerous person to the grand jury on the basis of
unfounded facts.
The Prosecutor later confirmed that he talked to Pine
Environmental, Inc and learned that their employee was due to come and pick up
the instrument that morning from defendant’s front porch (this is where
defendant would typically place various rental instruments for pickup and
delivery). Again, none of these facts
made it to the grand jury. The State fed
the grand jury with lies, fabrications and half “truths”.
Officers Lucas and D’Agostino also claimed that they did
not ring the door bell and that instead, they saw a man waiting for them with a
gun. This was not true, as Lucas rang
the doorbell at about 8:52 am (or between 8:50 am and 8:55 am). The sheriff’s investigation reports show that
other sheriff’s employees wrote that “somebody answered the door”. These statements corroborate defendant’s
recollection that Lucas rang the doorbell.
When defendant did not answer the door, he bypassed two big planters and
went towards the edge of the porch and started peering inside the home, as the
sun glare makes it impossible to see inside the home during the morning hours
(it is a north/northeast facing home).
This was the performance of an illegal search in violation of the Fourth
Amendment to the U.S. Constitution and N.J. Const. (1947), Art. I, Par. 7.
After peering inside the dwelling, Lucas then jumped off
the edge of the porch, proving that he was located at the side window peering
inside. He admits in his report that he “jumped off the porch”. He could not simply follow the steps of the
porch the same way D’Agostino did, because the planters blocked his exit from
his location at the edge of the porch.
The only way he could go was behind the bushes. This is crucial evidence, adding credibility
to defendant’s contentions and proving yet again that Lucas lied to the grand
jury.
It also was not possible
that the officers did not say anything to defendant, without announcing that
they were sheriff officers or law enforcement officers and without defendant
saying anything to them (as they have testified). It makes no sense that they simply walked
away; the only way this could have
happened is if the doors were both locked (i.e., both the storm and the main
wooden door) and they could not have any contact or communication with
defendant at that time.
Officers Lucas and D’Agostino are partners. They
drove in the same car. They testified
that they both walked toward the front steps at the same time. It doesn’t
make sense that Lucas would go behind defendant’s front bushes (the yews and
the rhododendrons), while D’Agostino would go toward his car. This scenario
is only likely if Lucas was located in front of the side door window and at the
very edge of it (which is where defendant saw him standing, with his face on
the glass window and illegally peering inside the home). There was no reason for him to do this, if he
was just delivering papers, as he testified.
He could have left the papers in the mailbox or left them at the door
step. Furthermore, the
yews/rhododendrons consisted of very hard wood.
It was difficult to go behind them without being scratched. Lucas in fact stated to his partner and two
other officers that he was scratched by the wood. This proves that Lucas was standing at the
inaccessible to the public window and was peering inside defendant’s residence.
Furthermore, Lucas and
D’Agostino testified/wrote that they split in two different directions.
Lucas went towards the “woods” (he meant the bushes located before defendant’s’
residence), while D’Agostino went towards the sheriff’s cars parked at the top
of the driveway. This coud only happen if Lucas was standing at the edge
of the porch at the side door window and from there he went behind the bushes
(the “woods”) located in the front of the home. That was the only route
he had available, because the two planters were in his way and he could not go
back toward the door easily.
If both of them were standing
in front of the door, there was no reason for them to take different
routes.
In sum, it is important to note that Lucas has changed
his story a number of times: at one time
he claims that he was walking up the front stairs and he saw a man standing
there and pointing a gun; in another version he claims that he was standing at
the open door and that he then saw a person coming toward him; at a third time,
he claimed that there was an altercation; a fourth scenario was that he claimed
that defendant never said anything to him (i.e., that there was no altercation);
a fifth scenario is that he wrote in his report that he “jumped off the porch”
(meaning that he was already on the porch and not just coming up the stairs); a
sixth version was that he claimed that he never rang the doorbell; a seventh
scenario is that he stated to his colleagues that he rang the doorbell (this is
confirmed by the statement of other officers who wrote that Lucas told them
that defendant answered the door); in another version, he claimed that
defendant was barricaded, yet he also claimed that defendant had his front door
wide open; yet another version was he
claimed that he saw a “shotgun” pointed at him, but then he changed his story
(after he had a chance to illegally enter defendant’s home) and he claimed that
he saw a single-shot Ruger hunting rifle; in another version he claimed that he
saw a bomb at the porch, only to change his story and claim that he saw a
“metal ammunition box”.
The grand jury was mislead by the State when testimony
was elicited from D’Agostino regarding the pointing of a gun out of a “window”
by the defendant. The officers had
indicated that they saw defendant standing behind a glass storm door and he
never opened the door.
In State v. Hogan 144 N.J. 236, the Court
stated the obvious: That the prosecution is precluded from deceiving the grand
jury or presenting evidence in a way that is tantamount to telling the grand
jury a half-truth because any distorted version of the facts interferes with
the grand jury’s decision-making function.
Q:
At the Grand Jury, the presenting Prosecutor asked a witness: And you have been
made aware that prior to the eviction Mr. Stephanatos had made threats
indicating I’m not going anywhere, I don’t have to pay taxes to Wayne, because
I don’t have any children in the school system, correct?
A
That’s correct. (GJT8-18 to 23).
Contrary to the prosecutor’s misstatement, the defendant
never claimed that he did not “have to pay taxes to Wayne.” As the prosecutor was aware, it was the
defendant’s contention that he did not owe taxes as his house had been “over-assessed.” The defendant had gone through legitimate
means in civil courts to attempt to redress this issue. Prejudice to the defendant was intentionally
created by the State and can’t be countenanced.
The fallacy of that statement can also be easily revealed
by the significant taxes paid by residents in Wayne Township: the average taxes are $10,000, so if
defendant had not paid taxes since 1993 (the false statement made by the
conspirators), then the amount of taxes due would have been $200,000 and
more. However, the amount of disputed
taxes was $20,000 or less.
By falsely advising the grand jurors that the defendant
did not believe he had to pay taxes, the Prosecutor depicted the defendant as a
criminal and as an individual who the grand jury (who all pay taxes) would
resent. The picture painted of defendant
was damning – depicting him in this fashion and as a violent person. All of this created irreparable harm to the
defendant and the grand jury proceedings.
If the defendant had been permitted to testify, the grand jury would
have gotten a true picture of the man and his background; been able to judge
his credibility; and would have heard a consistent, true version of events with
corroborating documentary and physical evidence.
POINT
VIII
The
defendant is entitled to the personnel and medical history files of officers
Lucas and D’Agostino. At the very least,
there should be an in camera review.
The evaluation of “whether police personnel records
should be disclosed” as evidence of an arresting police officer’s prior bad
acts “involves a balancing between the public interest in maintaining the
confidentiality of police personnel records and a defendant’s guarantee of
cross-examination under the Confrontation Clause” of the Sixth Amendment of the
United States Constitution and Article 1, Section 10 of the New Jersey
Constitution. State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div. 1998).
Defendant’s right to confront witnesses is guaranteed by
both the Federal and New Jersey Constitutions. State v. Budis, 125 N.J.
519, 530 (1991) (citing U.S. Const. amend. VI; N.J. Const. art 1, ¶ 10). “The right to cross-examine is an essential
element of that right.” State v. Harvey, 151 N.J. 117, 188 (1997), cert.
denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). The right of confrontation affords a
defendant the opportunity to question the State’s witnesses, protects against
improper restrictions on the questions asked during cross-examination, and
affords the accused the right to elicit favorable testimony on
cross-examination. Budis, supra, 125 N.J. at 530-31. “Cross-examination is the principal means by
which a witness’s credibility is tested.” State v. Harris, 316 N.J. Super.
384, 397 (App. Div. 1998).
The credibility and truthfulness of Officers Lucas and
D’Agostino is in question in this matter.
The State’s case is absolutely dependent upon their testimony.
A criminal defendant “‘must be afforded the opportunity
through effective cross-examination to show bias on the part of adverse state
witnesses.’” State v. Williams, 403 N.J. Super. 39, 49-50 (App. Div. 2008)
(quoting State v. Sugar, 100 N.J. 214, 230 (1985)), aff’d as modified, 197 N.J.
538 (2009). A “witnesses’ credibility
may be attacked by means of cross-examination directed toward revealing
possible biases, prejudices, or ulterior motives of the witness as they may
relate to issues in the case at bar.” Harris, supra, 316 N.J. Super. at 397
(citing Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d
347, 353 (1974). Specifically, “[c]ourts
have permitted the disclosure of police personnel records where they may reveal
prior bad acts that bear ‘peculiar relevance’ to the issues at trial.” Id. at
398. For example, courts “allow either
direct or in camera inspection of police personnel records when the defense
claims the officer was the aggressor and the court finds that parts of the
officer’s personnel history may be relevant to the officer’s credibility or to
the defendant’s claim of self-defense.” Ibid.
As to the issue before this Court, “The determination of
whether police personnel records should be disclosed involves a blending
between the public interest in maintaining the confidentiality of police
personnel records and a defendant’s guarantee of cross-examination under the
Confrontation Clause.” Harris, supra, 316 N.J. Super. at 397-98. In furtherance of that balancing test, the
Appellate Division has held that where a defendant seeks to review a police
officer’s personnel file the defendant:
“must advance ‘some factual predicate which would make it reasonably
likely that the file will bear such fruit and that the quest for its contents
is not merely a desperate grasping at a straw.’” Id. at 398 (quoting State v.
Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980)). However, it’s not required that the defendant
first establish that the personnel file “actually contains relevant
information.” Ibid. On establishing a right to inspect the police officer’s
personnel file, “[t]he disclosure . . . should be made to both the defense and
the State in chambers and on the record.” Id. at 387.
In Harris, the Court directed that the State turn
over the arresting officer’s personnel file for an in camera review, in a
post-conviction relief motion. The
defendant had presented evidence that the arresting officer had taken money
from him and his friends; had planted drugs on them; and had harassed them on
other occasions prior to the incident leading to arrest. Harris, supra,
316 N.J. Super. at 391. Also, that the arresting
officer was a drug user, and had been suspended from the police department. A newspaper had reported that the police
department was investigating the arresting officer for alleged shakedowns of
other individuals. The Court determined that because the defendant had produced
evidence of a factual predicate that would make it reasonably likely that
information in the personnel file could affect the officer’s credibility, the
Court directed that the personnel file be turned over for an in camera inspection.
The contradictions, numerous versions of the offense and
untruths dictate that the personnel files and the medical history files of
Officers Lucas and D’Agostino should be disclosed to the defense in Stephanatos. At the very least, there should be an in
camera review.
POINT
IX
Defendant
is entitled to a hearing pursuant to State v. Driver, 38 N.J.. 255
(1962) to determine the admissibility of the recordings made in this matter.
Defendant moves for an Order requiring a pretrial hearing
in this matter pursuant to the criteria set forth in State v. Driver,
38 N.J. 255 (1962) regarding the admissibility of any and all audio and video
tapes to be offered in evidence in this matter.
Driver compels a hearing prior to admissibility that the
particular recording device was capable of taking the statement; that the
operator was competent and that the recording is authentic and correct. The Court must assume that no deletions,
additions or changes have been made to the recording and that it is
audible. The same applies to the
accuracy of any transcripts of any recording.
Defendant reserves the right to object to any prejudicial content on a
tape (R.403) and on the ground of relevancy (R. 401) The same applies to “other acts” evidence
contained therein (R. 404B).
Point
X
The charges brought under N.J.S.
2c:12-1b(9) must be dismissed with prejudice as it is not applicable in non-law
enforcement activities. Officers Lucas
and D’Agostino were not wearing law enforcement uniforms. They were wearing process server uniforms, as
per their grand jury testimony, they never announced themselves as police
officers and they testified that they never knocked or rang the doorbell at
defendant’s premises.
Officers Lucas and D’Agostino did not wear law
enforcement uniforms. It is crucial that they did not identify themselves as
law enforcement officers and that they did not have a mandatory Warrant for
Removal. In their own testimony, they
never claimed that they ever announced themselves. They are sheriff’s employees working to
deliver documents (as they testified), not police officers. Their duties during that day were not law
enforcement duties, because this was a civil matter.
See 2C:25-19 - Definitions
"Law
enforcement officer" means a person whose public duties include the power
to act as an officer for the detection, apprehension, arrest and conviction of
offenders against the laws of this State.
Here, the public duties of Lucas and D’Agostino were not
that of police officers. Defendant never
knew that they were acting as law enforcement officers, as they never had a
Warrant for Removal from a Law Division Judge and they were not wearing law
enforcement officer’s uniforms and they never announced themselves. They never knocked or rang the doorbell.
It is respectfully submitted that 2C:12-1B(9) is meant to
protect law enforcement personnel in the performance of their law enforcement
duties. It is not meant to apply to
process server situations. This is also demonstrated
by the self-defense statutes that provide that the defense of one’s home is not
applicable in law-enforcement situations where the police officer is armed with
a warrant.
The two sheriff’s employees were not performing duties of
law-enforcement officers (set forth above).
They know it and that is why they originally filed charges under section
2C:12-1b(4). As they stated at the grand
jury proceedings, they were only trying to “deliver documents”. The officers initially filed charges under
section 2C:12-1b(4) (the person or sheriff employee section); later, they
changed their charges to fall under 2C:12-1b(9)(law enforcement officer). Why did they change the charges when it is
clear that they were working as process servers and not police officers? Perhaps they changed the charges to be able
to add an additional $200,000 in bail and to hold the defendant in jail. Or, perhaps for public consumption and to
force an unwarranted plea bargain. The
bail originally set was unconscionable considering the panorama of facts and
circumstances, as well as the defendant’s impeccable background. The officers did not have a Warrant for
Removal as is mandated by law to allow them to enter a dwelling and remove a
tenant. 2C:12-1b(9) is meant to protect
law enforcement personnel in the performance of their law enforcement duties
and not meant to cover sheriff’s officers in the performance of non-law
enforcement duties. This was a civil
matter, not a criminal matter. The
public duties of the process server were not “detection, apprehension, arrest and conviction of offenders against the
laws of this State”. Buttressing
this is the fact that the officers can be sued for damages under Section 1983
for a wrongful eviction, which means that they are not agents of the state in
the circumstances of this case, but they were in fact agents of ATF/DelVecchio,
pursuing a continuous unlawful conspiracy against the defendant from beginning
to end, causing irreparable harm to the defendant.
POINT
XI
The
charges under N.J.S. 2c:17-2c must be dismissed with prejudice as defendant’s
home was located in a heavily wooded, remote area of Wayne Township, where less
than 2 homes were located and less than 2 people were within 100 feet of
defendant’s home.
Count 4 charges that the defendant “did recklessly
create a risk of widespread injury or damage by purposely or knowingly
barricading himself into 687 Indian Road . . . while armed with a deadly
weapon, contrary to the provisions of N.J.S. 2C:17-2c.”.
N.J.S.A. 2C:17-2c provides,
in pertinent part:
A person who recklessly
creates a risk of widespread injury or damage commits a crime of the fourth
degree, even if no such injury or damage occurs.
N.J.S.A. 2C:17-2e provides: “For purposes of this
section, widespread injury or damage means serious bodily injury to five or
more people or damage to five or more habitations or to a building which would
normally have contained 25 or more persons at the time of the offense.”
It is
important to note here that the defendant’s home was in a heavily wooded,
isolated area of Wayne, New Jersey. There are no homes neighboring to the
north. There is only one home neighboring to the east (about 50 feet
away) where there was only one woman present and another to the west (about 100
feet away) where the owners were at work. Thus, this charge should be
dismissed, as less than five people and less than five habitations were within
100 feet from defendant’s home. The only person at risk of serious injury
or death was the defendant as the SWAT team got the go ahead to storm the house
at about 1:30 pm on June 28, 2011. It was a miraculous coincidence that
at that time the defendant finished sending his emergent appeals to stop the
reckless onslaught of the sheriff’s employees.
The Prosecutor did not advice the grand jury regarding
the “five or more people or damage to five or more habitations” requirement
for this charge.
Furthermore, defendant was not notified that he had
committed an offense or that he was under arrest. At no time did he display a weapon. There was no evidence presented to the grand
jurors that the defendant threatened anyone with a gun while inside his own
home. He did not barricade himself inside
his home. The media reports stated that on June 28, 2011, the Sheriff stated
that the defendant was armed with a “shotgun”. However, no such weapon
was ever found, as it was a fabrication to perform an illegal arrest and
seizure and an illegal removal without having a Warrant for Removal.
Evidence was not presented that the defendant had
erected any barrier to prevent the advancement of the sheriff’s officers.
The defendant was sitting inside his office and doing his business, because he
had been assured by the Sheriff in May 2011 that no tenants would be removed
from the premises. The defendant had no reason to erect a barricade as he
knew that the Sheriff’s office did not have the requisite Warrant for Removal
and no such “barricade” evidence was presented during the grand jury
proceedings. On the contrary, according to the sheriff’s officers, the
defendant’s door was wide open. It should be noted that the door of the
home is not considered a barricade.
The defendant is concerned that due to the delay in this
case, evidence may have been destroyed. The Sheriff has removed from his
web pages all references to his process service. Prior to June 28, 2011,
the Passaic County Sheriff had prominently displayed the process service unit
on his web pages, asserting therein that the “sheriff acts as the agent for the
plaintiff”, consistent with the reply letter the Sheriff sent in May 2011 to
the defendant stating that the Sheriff “only takes orders from the Plaintiff.” The landscape before his former home has also
been changed by removing the yews and rhododendrons from the front of the home.
An indictment should be dismissed as facially deficient
“if it fails to charge an offense,” by failing to charge “‘all of the critical
facts and each of the essential elements which constitute the offense
alleged.’” State v. Bennett, 194 N.J. Super. 231, 234 (App. Div.
1984) (quoting Wein, supra, 80 N.J. at 497). An indictment should
be dismissed for lack of sufficient evidence if the grand jury was not
presented “with at least some evidence as to each element of a prima facie
case.” Ibid. Accordingly, Count 4 charge
must be dismissed with prejudice.
POINT XII
State v. Orrechio, 16 N.J. 125(1954) should
be applied in Stephanatos.
It is respectfully submitted that there are numerous
serious legal issues raised regarding the unfair grand jury presentation in
this matter. In part, false testimony
presented to the grand jury; not presenting evidence of the illegal background
leading up to the charges perpetrated by the conspirators; the fact that this
was a civil matter based upon profit for the same; and no explanation was given
to the grand jury of the specific violations of the law by the conspirators and
what is required to be done if there was to be legality and legitimate process,
which brought Officers Lucas and D’Agostino to the defendant’s home on the day
in question. Add to this the
constitutional violations (subject to the motion to suppress); the doctrine of
“false in one, false in all” not explained to the grand jury; the fact that the
grand jury was not charged as to the rights of protection by the homeowner
where it involves his property (the defense of home) as well as the unlawful
entry by the officers on defendant’s property.
The law of duress and self-defense should have been charged to the grand
jury by the prosecutor. Instead of a
fair presentation there was a biased presentation in actuality depicting the
defendant as a “monster”.
An accused is also entitled to have a valid defense or
justification presented to the grand jury where it exonerates the accused. This obligation does not, however, impose a
duty on the prosecutor to investigate or cultivate every potential defense or
justification for a felony offense for which indictment is being sought. Defenses which must be disclosed to the grand
jury are those that clearly tend to establish innocence. The defenses set forth herein clearly and
compellingly do so. Furthermore, if the
grand jurors were deceived and misinformed about applicable defenses to the
charges, a finding of a “true bill” would be undermined and should not be
allowed to stand. In Stephanatos, there
was a plethora of misinformation. There
was also the testimony of Lucas wherein he related damaging blatant hearsay
statements made to him by Robert Del Vecchio.
This created further bias and damage, especially where Del Vecchio’s
motivations, actions, background and co-conspirator status were not presented
to the grand jury. The State
deliberately gave a false impression about him when they had information
available, including documentary evidence, which completely negated his
credibility. The State should not be
permitted to leave a knowingly false impression.
The fact that there was a completely one-sided, disregard
for the truth, presentation tainted the proceedings irrevocably and constituted
prosecutorial misconduct. The totality
of the circumstances must have been developed, and wasn’t. Exculpatory evidence should have been
presented. Defendant incorporates by reference
all of the other errors raised in this memorandum. It is submitted that each of these points,
taken singularly mandate a dismissal of the Indictment. Moreover, taken cumulatively, the legal
errors in this case are of such a magnitude that they undeniably prejudiced the
defendant’s rights and, in their aggregate, rendered the grand jury proceedings
totally unfair. Fundamental fairness and
constitutional concepts dictate a dismissal.
See State v. Orrechio, 16 N.J. 125 (1954).
The grand jury “has always occupied a high place as an
instrument of justice” in New Jersey’s legal system, serving the dual purpose
of determining whether an accused should be subjected to trial, while
simultaneously safeguarding citizens against arbitrary, oppressive and unsupported
criminal proceedings. In re the Essex
County Grand Jury Investigation, 368 N.J. Super. 269, 279 – 80, 845 A.2d 739
(Law Div. 2003) (quoting State v. Del Fino, 100 N.J. 154, 165, 495 A.2d 60
(1985)); see also State v. Sivo, 341 N.J.Super. 302, 325, 775 A.2d 227 (Law
Division.2000) (“[t]he grand jury acts as the conscience of the
community”). In Stephanatos, the grand
jury and its purpose was perverted and undermined.
CONCLUSION
The grand jury clause of the
Fifth Amendment provides that "no person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or indictment of
a Grand Jury." U.S. Const., Amend. V. "Implicit in that language is
the guarantee that a defendant will be indicted only upon the informed and
independent determination of a legally constituted grand jury." United
States v Sears, Roebuck and Company Inc., 719 F.2d 1386, 1391 (9th Cir.
1983), cert. denied, 465 U.S. 1079 (1984). "The prosecutor may not
circumvent this safeguard by over-reaching conduct that deprives the grand jury
of autonomous and unbiased judgment. If the grand jury is to accomplish either
of its functions, independent determination of probable cause that a crime has
been committed and protection of citizens against unfounded prosecutions,
limits must be set on the manipulation of grand juries by overzealous
prosecutors." United States v. Al Mudarris, 695 F.2d 1182, 1184(9th
Cir. 1983), cert. denied, 461 U.S. 932 (1983). "Dismissal of an
indictment is therefore warranted on constitutional grounds if prosecutorial
misconduct has undermined the grand jury's ability to make an informed and
objective evaluation of the evidence presented to it." Sears, 719
F.2d at 1391. "Although deliberate introduction of perjured testimony is
perhaps the most flagrant example of misconduct, other prosecutorial behavior,
even if unintentional, can also cause improper influence and usurpation of the
grand jury's role." United States v. Samango, 607 F.2d 877, 882
(9th Cir. 1979). The Supreme Court has articulated the test as follows: Courts
may dismiss indictments when the "violation substantially influenced the
grand jury's decision to indict, or if there is a 'grave doubt' that the decision
to indict was free from the substantial influence of such violations." Bank
of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (citations
omitted).
An indictment may also be
dismissed through the exercise of the court's inherent supervisory power. United
States v. Williams, 504 U.S. 36, 45-47 (1992); United States v. Chanen,
549 F.2d 1306, 1313 (9th Cir.), cert. denied, 434 U.S. 820 (1977).
"While a constitutional analysis focuses on preserving fairness for the
individual defendant and remedying any harm that has been done to his basic
rights, the exercise of a court's inherent supervisory power serves two
institutional purposes: deterring governmental misconduct and protecting the
integrity of the judicial process." Sears, 719 F.2d at 1394
(Norris, J., dissenting). "Because constitutional and supervisory power
analyses serve fundamentally different purposes, application of either dictates
that different factors be weighed in determining whether dismissal of an
indictment is warranted. . . . [D]ismissal of an indictment on constitutional
grounds requires a finding that the prosecutor's misconduct biased the grand
jury. Dismissal on supervisory power grounds, on the other hand, is based on a
combination of different factors: the egregiousness of the prosecutor's
misconduct, the need to discipline the particular prosecutor in light of past
misconduct, and the effectiveness of any available sanctions that are less
drastic than dismissal of die indictment." Id. at 1395. In
addition, before dismissing based on its supervisory powers, a court must find
that the defendant has suffered actual prejudice as a result of the
government's conduct. Bank of Nova Scotia, 487 U.S. at 263 ("The
prejudicial inquiry must focus on whether any violations had an effect on the grand
jury's decision to indict. If violations did substantially influence this
decision, or if there is grave doubt that the decision to indict was free from
such substantial influence, the violations cannot he deemed harmless."); United
States v. Lopez, 989 F.2d 1032, 1041-42, as amended, 4 F.3d 1455 (9th Cir.
1993).
Although prosecutors are
given broad latitude and dismissals based on misconduct before the grand jury
are rare, the Ninth Circuit stated forcefully in United States v. Al
Mudarris that abuses of the grand jury will not be tolerated by that court:
The government is on notice
that this court will not brook behavior that degrades the grand jury into a
rubber stamp, and the testing of the prosecutor's evidence into an empty
ritual. "A line must be drawn beyond which prosecutor's control over a
cooperative grand jury may not extend." United States v. Samango,
607 F.2d at 882. The "cumulative effect of [prosecutorial] errors and
indiscretions," id. at 884, came uncomfortably close to crossing
that line here. Prosecutors must stay well back of it in the future. It is only
because of the overwhelming evidence of guilt that was presented to the grand
jury, and our belief that this opinion will have the requisite prophylactic
effect, that we affirm.
695 F.2d at 188-89.
For the foregoing reasons and authorities cited, the
defendant Basilis N. Stephanatos respectfully submits that the indictment must
be dismissed with prejudice. Defendant
also requests the specific relief delineated in the Omnibus Motions, including
the cross examination of Officers Lucas and D’Agostino at a hearing to prove
that their testimony before the grand jury was false, fraudulent and
intentionally misleading. Additionally,
there must be a hearing on the motion to suppress. Defendant will testify that his doors were
all closed and locked with a deadbolt and that the two officers performed an
unlawful search inside his dwelling in violation of his constitutionally
guaranteed rights and in violation of state law prohibiting peering inside
residences. The state has admitted in
proceedings before Judge Filko that the sheriff’s officers did not have a
Warrant. Thus, they were illegally
attempting to remove defendant from his dwelling while working as agents for
Robert Del Vecchio, ATF, et. al.
Defendant incorporates herein his prior submissions to this Court.
Respectfully
submitted,
___________________________________
Miles
Feinstein, Esq.
Attorney
for defendant
Basilis
N. Stephanatos
Dated:
November 23, 2015
