WALTER DEWEY, JR. OF PASSAIC COUNTY COMMITTED PROSECUTORIAL MISCONDUCT AND
VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND UNDER THE NEW JERSEY CONSTITUTION.
RONALD LUCAS AND VICTOR D'AGOSTINO, TWO PASSAIC COUNTY SHERIFF OFFICERS COMMITTED PERJURY DURING GRAND JURY TESTIMONY.
Color of Law Abuses
U.S. law enforcement officers and other officials like judges, prosecutors, and security guards have been given tremendous power by local, state, and federal government agencies—authority they must have to enforce the law and ensure justice in our country. These powers include the authority to detain and arrest suspects, to search and seize property, to bring criminal charges, to make rulings in court, and to use deadly force in certain situations.
Preventing
abuse of this authority, however, is equally necessary to the health of our
nation’s democracy. That’s why it’s a federal crime for anyone acting under
“color of law” willfully to deprive or conspire to deprive a person of a right
protected by the Constitution or U.S. law. “Color of law” simply means that the
person is using authority given to him or her by a local, state, or federal
government agency.
The
FBI is the lead federal agency for investigating color of law abuses, which
include acts carried out by government officials operating both within and
beyond the limits of their lawful authority. Off-duty conduct may be covered if
the perpetrator asserted his or her official status in some way.
During
2012, 42 percent of the FBI’s total civil rights caseload involved color of law
issues—there were 380 color of law cases opened during the year. Most of
the cases involved crimes that fell into into five broad areas:
Excessive
force;
Sexual
assaults;
False
arrest and fabrication of evidence;
Deprivation
of property; and
Failure
to keep from harm.
Excessive
force:
In making arrests, maintaining order, and defending life, law enforcement
officers are allowed to use whatever force is “reasonably” necessary. The
breadth and scope of the use of force is vast—from just the physical presence
of the officer…to the use of deadly force. Violations of federal law occur when
it can be shown that the force used was willfully “unreasonable” or “excessive.”
Sexual
assaults by officials acting under color of law can happen in
jails, during traffic stops, or in other settings where officials might use
their position of authority to coerce an individual into sexual compliance. The
compliance is generally gained because of a threat of an official action
against the person if he or she doesn’t comply.
False
arrest and fabrication of evidence: The Fourth Amendment of the U.S.
Constitution guarantees the right against unreasonable searches or seizures. A
law enforcement official using authority provided under the color of law is
allowed to stop individuals and, under certain circumstances, to search them
and retain their property. It is in the abuse of that discretionary power—such
as an unlawful detention or illegal confiscation of property—that a violation
of a person’s civil rights may occur.
Fabricating
evidence against or falsely arresting an individual also violates the color of
law statute, taking away the person’s rights of due process and unreasonable
seizure. In the case of deprivation of property, the color of law statute would
be violated by unlawfully obtaining or maintaining a person’s property, which
oversteps or misapplies the official’s authority.
The
Fourteenth Amendment secures the right to due process; the Eighth Amendment
prohibits the use of cruel and unusual punishment. During an arrest or
detention, these rights can be violated by the use of force amounting to
punishment (summary judgment). The person accused of a crime must be allowed
the opportunity to have a trial and should not be subjected to punishment
without having been afforded the opportunity of the legal process.
Failure
to keep from harm: The public counts on its law
enforcement officials to protect local communities. If it’s shown that an
official willfully failed to keep an individual from harm, that official could
be in violation of the color of law statute.
Filing
a Complaint
To
file a color of law complaint, contact your local FBI office by telephone, in writing, or in person. The following
information should be provided:
All
identifying information for the victim(s);
As
much identifying information as possible for the subject(s), including
position, rank, and agency employed;
Date
and time of incident;
Location
of incident;
Names,
addresses, and telephone numbers of any witness(es);
A
complete chronology of events; and
Any
report numbers and charges with respect to the incident.
You
may also contact the United States Attorney’s Office in your district or send a
written complaint to:
Assistant
Attorney General
Civil Rights Division
Criminal Section
950 Pennsylvania Avenue, Northwest
Washington, DC 20530
FBI
investigations vary in length. Once our investigation is complete, we forward
the findings to the U.S. Attorney’s Office within the local jurisdiction and to
the U.S. Department of Justice in Washington, D.C., which decide whether or not
to proceed toward prosecution and handle any prosecutions that follow.
Civil
Applications
Title
42, U.S.C., Section 14141 makes it unlawful for state or local law enforcement
agencies to allow officers to engage in a pattern or practice of conduct that
deprives persons of rights protected by the Constitution or U.S. laws. This
law, commonly referred to as the Police Misconduct Statute, gives the
Department of Justice authority to seek civil remedies in cases where law
enforcement agencies have policies or practices that foster a pattern of
misconduct by employees. This action is directed against an agency, not against
individual officers. The types of issues which may initiate a pattern and
practice investigation include:
Lack
of supervision/monitoring of officers’ actions;
Lack
of justification or reporting by officers on incidents involving the use
of force;
Lack
of, or improper training of, officers; and
Citizen
complaint processes that treat complainants as adversaries.
Resources
|
FBI Newark
Claremont Tower
11 Centre Place
Newark, NJ 07102
Phone: (973) 792-3000
Fax: (973) 792-3035
//-------------------------///
The
following brief provides all the details of the perjury and
prosecutorial misconduct of the Passaic County employees against Dr.
Basilis N. Stephanatos. These corrupt individuals not only took his
home that he fully owned, but they also filed fraudulent charges to keep
him in jail and justify their wrong doing. Many of them in Passaic
County (that has a reputation that is one of the most corrupt counties
in the state) are corrupt as they know that they will get away with it.
Shocking! Passaic County Sheriff typically commits illegal evictions, in violation of the State laws and receives millions of dollars in fees from the conspirators.
|
MILES R. FEINSTEIN, ESQ.
1135 CLIFTON AVENUE
CLIFTON, NEW JERSEY 07013
TEL: (973) 779-1124
FAX: (973) 779-9883
Attorney for Defendant
Basilis N. Stephanatos
STATE OF NEW JERSEY
Plaintiff,
v.
BASILIS N. STEPHANATOS,
Defendant
|
SUPERIOR
COURT OF NEW JERSEY
CRIMINAL
DIVISION, PASSAIC COUNTY
DOCKET
NO. 11002878
Indictment
No. 11-09-00810-I
Criminal Action
NOTICE OF OMNIBUS
MOTIONS
|
TO: Passaic County Prosecutor’s Office
401
Grand Street
Paterson,
New Jersey 07505
Attn:
Assistant Prosecutor Peter M. Roby
PLEASE TAKE NOTICE that on Wednesday, December 16, 2015,
the defendant, Basilis N. Stephanatos, shall move before the Honorable Miguel
A. de la Carrera, J.S.C., at the Passaic County Court House, Paterson, New Jersey,
for the following:
(1) An Order dismissing the indictment with prejudice
because the State: never informed the grand jurors that the Passaic County
Sheriff failed to obtain a mandatory Warrant of Removal in violation of New
Jersey Law for entry into dwellings (see N.J.S.A.
2A:39-1 Unlawful entry prohibited); misled and lied to the grand jurors so
that they are prejudiced against the defendant regarding the commercial
instrument located in the front porch of defendant’s place of business;
elicited damaging false testimony from witnesses to prejudice the grand jurors
against the defendant; refused to allow the defendant to inform the grand
jurors that defendant’s property was impermissibly over-assessed and no taxes
were legally due; failed to provide to the grand jury exculpatory evidence
(emails and phone records) obtained from defendant’s computer clearly negating
necessary elements of the alleged offenses and proving that Ronald Lucas and
Victor D’Agostino lied; refused to allow the defendant to provide clearly exculpatory
evidence to the grand jurors refuting the allegations of the witnesses and/or
negating elements of the alleged offenses; refused to allow the defendant to
inform the grand jury that several of his constitutional rights and several
state laws were violated by conspirators and the State; refused to allow the
defendant to inform the grand jury that Judge Margaret McVeigh violated a
number of state laws and NJ Court Rules and other legal procedures in
accordance with Royal Tax Lien Servs., LLC V. Morodan, Docket No.
A-6030-12T1 (N.J. Super. App. Div. Jul 03, 2014), I.E.'s, L.L.C. v. Simmons,
392 N.J. Super. 520, 537 (Law Div. 2006), Ronan v. Adely, 182 N.J. 103,
110-11 (2004); Cameco, Inc. v. Gedicke, 157 N.J. 504, 509-10 (1999); Kas
Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 562-63 (App. Div.),
certif. denied, 200 N.J. 476 (2009); and that Judge Margaret McVeigh failed to
consider the full equity that defendant had in his home in direct violation of
New Jersey case law in accordance with Royal Tax Lien Servs., LLC V. Morodan
(Point I in brief);
(2) An Order dismissing the indictment with prejudice
because the more than four (4) year case delay deprived the defendant of his
constitutionally-guaranteed right to a speedy trial causing severe economic and
non-economic hardship, loss of employment and professional licenses, loss of
reputation, and other hardships. Barker v. Wingo, 407 U.S. 514, 530, 92
S. Ct. 2182, 2192, 33 L. Ed. 101, 117 (1972), State v. Cahill, 213 N.J.
253 (2013), State v. Jonathan E. Downs, Docket No. A-0, N.J. Superior
Court, Appellate Division, February 14, 2014
(Point II in brief);
(3) An Order dismissing the indictment with prejudice as
the grand jury presentation is fatally flawed as no definitions as to
“culpability”: (“purposely”, “knowingly,” “recklessly” and “negligently”) were
provided to the grand jurors; and the State fraudulently refused to provide
clearly exculpatory evidence to the grand jury regarding the mens rea of the
defendant showing that defendant was only lawfully defending his home and his
place of business from criminal and/or illegal activity (Point III);
(4) An Order dismissing the indictment with prejudice as
the state refused to allow the defendant to testify at the grand jury
proceedings as was requested by Mr. Carl Herman, Esq. and as a result, the
grand jurors were never instructed that the defendant was entitled to show that
he was motivated by an honestly held (but incorrect or unreasonable) belief (Point IV);
(5) An Order dismissing the indictment with prejudice as
the State never instructed the grand jurors as to the applicable defenses of
ignorance or mistake or duress or entrapment (Point V);
(6) An Order dismissing the indictment with prejudice as
the State never instructed the grand jurors as to the New Jersey’s self-defense
law and defense of dwelling or place of business (Point VI);
(7) An Order dismissing the indictment with prejudice due
to the use of perjured testimony, the use of false, misleading and/or
fraudulent evidence, the intentional fabrication of damaging or misleading
testimony, the exclusion of clearly exculpatory witnesses’ testimony, and the
State’s failure or refusal to present clearly exculpatory evidence negating
elements of the alleged offenses (Point
VII);
(8) An Order dismissing the indictment with prejudice due
to the outrageous government conduct in misleading and lying to the grand jury
(Point VIII);
(9) An Order requiring the State to produce any and all
internal affairs complaints/investigations/personnel files involving any of the
law enforcement officers involved in this matter; particularly the personnel files
of Officers Ronald Lucas and
Victor D’Agostino; and the medical records of Officer Lucas
evidencing no past sport-related or other injuries. At the very least, there should be in camera
review (Point IX);
(10) An Order requiring a pretrial hearing in this matter
pursuant to the criteria set forth in State v. Driver, 38 N.J. 255
(1962) (purpose of a Driver hearing is to be sure that the recording device was
capable of taking the statement, that its operator was competent, that the
recording is authentic and correct, and that no additions or deletions have
been made) (Point X);
(11) An Order requiring the State to produce any and all
records and/or information which could arguably be helpful or useful to the defense
in impeaching or otherwise detracting from the probative force of the State's
evidence, or which could arguably lead to such records or information,
including, but not limited to any sheriff or police or S.W.A.T. vehicle video
and/or audio tapes, telecommunications between the sheriff officers and other
state or county personnel during the day of the incident and afterwards,
photographs obtained by the S.W.A.T. team and the sheriff personnel or other
law enforcement personnel involved. Finally, any incident
reconstruction report will also be beneficial for the defense of the
charges. This was a major event that
made headlines in the printed, online and broadcast media and the sheriff
radically changed its process division afterwards. Thus, it is safe to assume that such
reconstruction investigation is available from the State or Passaic County or
the Sheriff. Defendant hereby requests
that such incident reconstruction report and/or records be made available to
the defense.
Any evidence whatsoever which would tend to exculpate the
defendant. Defendant relies upon Brady
v. Maryland, 373 U.S. 831 (1963); Giglio v. United States, 405 U.S.
105 (1972); Davis v. Alaska, 415 U.S. 308 (1974); State v. DiRienzo,
53 N.J. 360 (1969); Rule 20, Rules of Evidence; United States
v. Bonanno, 430 F.2d 1060 (2nd Cir. 1970), cert. denied, 400 U.S. 964
(1971); State v. Satkin, 127 N.J. Super. 306 (App. Div. 1974); State
v. Carter, 69 N.J. 420 (1976).
(12) The defendant moves for an Order compelling the
Prosecutor to make disclosure to the defendant, and, in the case of a tangible
item, to produce for inspection and copying by the defendant, all evidence in
the possession, custody and control of the prosecutor and/or any of its agents,
or others, if the existence is known to the State, when the evidence is
favorable to the defendant, and material to the issue of credibility, guilt, or
punishment, or bears upon, or could reasonably weaken or effect the credibility
of any evidence proposed to be introduced against this defendant by the State,
or bears in any material degree on the charges contained in the indictment and
prosecution under it, or in any manner may aid the defendant in the
ascertainment of the truth. The
disclosure and production of such evidence is to be made without regard to
whether the evidence to be disclosed and produced be deemed to be admissible at
the trial of this cause. Brady v. Maryland, 373 U.S. 83.
(13) The defendant moves for sequestration of witnesses
during pretrial hearings and trial.
(14) The defendant specifically reserves the right to
challenge the array in the jury pool;
(15) Defendant moves for an Order compelling the State to
disclose if the State is going to call an expert at the trial of this matter;
and whether any forensic examinations of the computers seized has been done.
(16) An Order compelling the production of all tape,
video and electronic or printed matter recordings made in this matter.
(17) The return of all items taken from the defendant,
his family, his home or business, which will not be offered as evidence at
trial and which have not already been returned to defendant. Defendant will rely upon oral argument
regarding this request.
(18) An Order suppressing all evidence seized (and
dismissing the indictment) as the product of an unlawful search, contrary to
the Fourth Amendment of the United States Constitution and Article I, Paragraph
7 of the New Jersey Constitution as the State violated the defendant’s
expectation of privacy and a violation of the defendant’s First Amendment right
to free speech and assembly, see State v. Reid, 389 N.J. Super. 563,
motion for leave to appeal granted, 190 N.J. 250 (2007); U.S.Const. Amend.
I; XIV; N.J.Const. Amend. Art I, Par. 6 and Par. 7. Peering into dwelling places, is a crime that
has been committed by the sheriff and county employees as they did not have a
law-mandated Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry
prohibited, et seq.), and were trespassing on defendant’s property and peering
through his residential window(s). See
2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into
dwelling places.
(19) An Order suppressing the legally-owned firearms
seized, the defendant did not voluntarily consent to the illegal search,
Officer Lucas was illegally peering through the front door side window of the
defendant’s residence (this is a criminal act, see 2C:18-3. Unlicensed
entry of structures; defiant trespasser; peering into dwelling places), he had
no law-mandated Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry
prohibited), the Sheriff employees were trespassing and there were no exigent
circumstances to justify the trespass and the associated search and seizure. U.S.
Const. Amend. IV; N.J. Const. (1947), Art. I, Par. 7.
(20) An Order suppressing all evidence seized because the
Affidavit submitted in support of the issuance of the search warrant contained
misrepresentations and fabrications; at the very least, an evidentiary hearing
must be held. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d
667 (1978); State v. Novembrino, 105 N.J. 95 (1987); State v. Petillo,
61 N.J. 165 (1972); State v. Nelson, 155 N.J. 487, 498-500 (1998); R.
3:13-3(c)(6) (information in the possession, custody and control of the
prosecutor concerning the source of the information in the affidavit should
have been provided in discovery).
(21) An Order suppressing all evidence seized based upon
irregularities in the execution of the search warrants (including the failure
of law enforcement to “knock”); State v. Johnson, 168 N.J. 608 (2001).
(22) An Order suppressing the statement given by the
defendant; at the very least, a Jackson-Denno-Miranda hearing must be
held to determine the statement’s admissibility, see Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Jackson v. Denno,
378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); N.J.R.E. 104(C).
(23) Defendant moves for an Order disclosing who has had
access to the computers seized at the time of the execution of the search
warrant in this matter; any utilization of or intrusions into the computer,
with a delineation of the individuals who accomplished the same; with the date,
purpose and results of the same.
(24)
An Order dismissing the indictment with prejudice
because the defendant was the victim of a criminal conspiracy by
individuals
and entities who lied to the courts and court clerks and hired the
sheriff’s
officers to illegally seize defendant’s home/business in violation of
state and
federal laws; the conspiracy was uncovered by the Federal Bureau of
Investigation (FBI) with assistance from the defendant (See
https://www.fbi.gov/newark/press-releases/2014/former-new-york-tax-liens-investment-company-executive-pleads-guilty-to-role-in-bid-rigging-scheme-at-municipal-tax-lien-auctions); its existence against the defendant and
thousands of New Jersey homeowners was determined and confirmed by the federal
judge Michael A. Shipp in the federal antitrust case IN RE NEW JERSEY TAX SALES
CERTIFICATES ANTITRUST LITIGATION, Master Docket No. 3:12-CV-01893-MAS-TJB (see
http://www.antitrustupdateblog.com/blog/antitrust-claims-survive-motions-to-dismiss-new-jersey-tax-lien-bid-rigging-class-action/)
and
by the conviction of at least 15 individuals and entities in New
Jersey,
including Passaic County, by the U.S. Attorney’s Office (See https://www.fbi.gov/newark/press-releases/2014/former-new-york-tax-liens-investment-company-executive-pleads-guilty-to-role-in-bid-rigging-scheme-at-municipal-tax-lien-auctions). (Point XI).
(25) The charges under the N.J.S. 2C:12-1b(9) statute
must be dismissed with prejudice as they are applicable in law enforcement officer
activities; Ronald Lucas and
Victor D’Agostino were serving court papers, as per their grand
jury testimony, they were not wearing dark blue or black law enforcement
uniforms (only the light blue process server uniforms) as this was a civil
matter, they never announced themselves as law enforcement officers and they
never knocked (as per their testimony).
The state fraudulently charged the defendant under 2C:12-1B(9) to demand
an additional $200,000 cash bail to try to hold the defendant in jail (Point XII).
(26) The charges under the N.J.S. 2C:17-2c statute must
be dismissed with prejudice as defendant’s home was located in a wooded, remote
area of Wayne Township, where less than 2 homes were located and less than 2 people
were within 100 feet of defendant’s home.
Furthermore, defendant at no time was notified that he had committed an
offense or that he was under arrest, at no time did he display a weapon, and at
no time did he barricade inside his home (Point
XIII).
(27) Defendant respectfully reserves the right to make
further motions in the event additional discovery is provided, or if the
interests of justice so require.
LATEST
DEVELOPMENTS REGARDING THE CONSPIRACY AGAINST THE DEFENDANT AND OTHER NEW
JERSEY HOMEOWNERS BY THE CRIMINALS WHO HIRED THE SHERIFF TO REMOVE THE
DEFENDANT FROM HIS HOME
For this section only, the term “defendant(s)” refers to
the conspirators Robert Del Vecchio, American Tax Funding, and many
others. The term “plaintiff(s)” refers
to the defrauded homeowners and other property owners in New Jersey, including
the defendant, Dr. Basilis N. Stephanatos.
Federal Judge Michael Shipp Orders that Claims
of Bid-Rigging in New Jersey Real Estate Tax Auctions May Proceed
Individuals and businesses whose properties were subject
to sale for delinquent real estate taxes could pursue antitrust claims against
numerous purchasers of tax liens or tax sale certificates for allegedly
engaging in an unlawful conspiracy to allocate bids at municipal auctions of
tax liens, the federal district court in Trenton has ruled (In re New Jersey Tax Sales Certificates Antitrust
Litigation, October 31, 2014, Shipp, M.).
In Passaic County, from in
or about 2000 until approximately December 2008, Robert Del Vecchio, Sr.
participated in a conspiracy to rig bids at auctions for the sale of municipal
tax liens in New Jersey by agreeing to allocate among certain bidders which
liens each would bid on. Additionally, a
felony charge was filed on September 30, 2013 in the U.S. District Court for
the District of New Jersey in Newark, against Michael Mastellone, of Cedar
Knolls, New Jersey, for participating in a similar conspiracy from in or about
2000 until approximately February 2009. The FBI said that Del Vecchio, Sr. and
Mastellone proceeded to submit bids in accordance with the agreements and
purchased tax liens at collusive and non-competitive interest rates.
“By conspiring to rig the
bids of municipal tax liens, the conspirators profited at the expense of those
already struggling financially,” said Scott D. Hammond, Deputy Assistant
Attorney General for the Antitrust Division’s criminal enforcement program.
“Protecting Americans from these types of bid-rigging schemes remains a high
priority for the division.”
The case is No. 12-1893.
Class litigation alleging investors colluded to ratchet
up interest rates in municipal auctions of tax liens will move forward after a
New Jersey federal judge declined to strike down state and federal antitrust
claims.
The plaintiff property owners “allege more than a
sufficient amount of factual material tending to show the existence of
collusion on the local level,” U.S. District Judge Michael Shipp said Oct. 31
in In re New Jersey Tax Sales Certificates Antitrust Litigation.
“Furthermore, plaintiffs have included allegations
sufficient to establish the larger, statewide conspiracy,” Shipp added. “In
sum, plaintiffs have set forth allegations supporting the existence of nearly
50 auctions in the state of New Jersey at which there was collusive conduct
involving different iterations of the defendants.”
In New Jersey, municipalities sell liens for property-tax
arrears at auctions. The rate of interest buyers can charge the property owner
starts at 18 percent and is driven down with subsequent bids.
According to the opinion, the plaintiffs claim the
financial institutions in the business of buying up that debt began a
bid-rigging scheme around 1998 in which they obtained auction lists beforehand
and consulted with one another before auction to divvy up the assets—so that
there wouldn’t be multiple bids for each certificate driving the interest rate
down.
In
this system, the investors allegedly policed one another with threats and
intimidation to assure that each of them stuck to the plan.
The plaintiffs, after Shipp ruled that there were insufficient facts to allege
a conspiracy, amended the consolidated complaint and documented 49 auctions in
which two or more defendants conspired beforehand, as well as the numerous
investigations and indictments that eventually came about, according to the
opinion.
The complaint includes four counts: violation of the
federal Sherman Act, the New Jersey Antitrust Act and the New Jersey Tax Lien
Law, as well as a common-law claim of unjust enrichment.
The defendants moved for dismissal, calling the pleadings
insufficient.
Shipp did dismiss the latter two counts, but declined to
strike the two antitrust claims, noting that the complaint “provides the date
and location of each alleged instance of collusion.”
The judge said the plaintiffs lodged sufficient
allegations with respect to each defendant: American Tax Funding, LLC, BBX
Capital Corp., Fidelity Tax, Heartwood 55, PAM Investors, Crestar Capital and
Mooring Tax Asset Group, as well as individual defendants associated with them.
In connection with the alleged statewide scheme, the
plaintiffs provided “extensive allegations” about the U.S. Justice Department
investigations that resulted in criminal charges against some of the individual
defendants, Shipp said.
Not all the defendants were present at each of the
auctions cited by the plaintiffs, and none of the defendants was present at the
auctions during which the plaintiffs’ debts were sold, the companies pointed
out.
“Yet, plaintiffs allege a conspiracy involving bid
rotation or bid allocation,” Shipp said. “As a result, it is equally plausible,
under the terms of the alleged conspiracy, that a defendant’s absence from a
particular auction was a direct result of the understanding reached among the
defendants that certain liens were to be allocated and not to be bid upon by
co-conspirators.”
Shipp also rejected the defendants’ standing arguments,
noting that “it is of no consequence that the moving defendants did not
purchase any lien connected to property by plaintiffs or were not present at
the auction where those liens were purchased.”
Finally, Shipp denied a motion by an individual defendant
of Passaic County, Michael Mastellone, for a stay pending sentencing in his
criminal matter. Mastellone pleaded guilty in September 2013 to a Sherman Act
violation. At the time, a dozen other individuals already had pleaded guilty to
participating in the alleged bid-rigging scheme, according to a Justice
Department release.
I.
DESCRIPTION OF THE OFFENSE
In 2000 and though 2009, the defendants and
co-conspirators entered into and engaged in a conspiracy to suppress and
eliminate competition by rigging bids and engaging in other collusive and
fraudulent activities during the real estate foreclosure auctions process in the
District of New Jersey. The combination and conspiracy engaged in by the
defendants and co-conspirators unreasonably restrained interstate trade and
commerce in violation of Sections 1 and 2 of the Sherman Act (15 U.S.C. § § 1
and 2).
The charged combination and conspiracy consisted of a
continuing agreement, understanding, and concert of action among the defendant
and co-conspirators, the substantial terms of which were:
·
to suppress competition by agreeing to
refrain from full competitive bidding against each other during the real estate
foreclosure auction process in the District of New Jersey, including the
homestead property of the Plaintiff;
·
to purchase auctioned real estate at a lower
price than would have been possible during a competitive auction process;
·
to defraud the courts by filing false or
fraudulent self-certifications using lawyers such as the Del Vecchios to force
homeowners out of their homes; and
·
to cause financial institutions, lienholders
and/or homeowners to receive less than the full and competitive price for
properties sold through real estate foreclosure auctions.
II. MEANS AND METHODS OF THE CONSPIRACY
For the purpose of forming and carrying out the charged
combination and conspiracy, the defendant and co-conspirators did those things
that they combined and conspired to do, including, among other things:
·
engaged in discussions concerning refraining
from filing upset bids against each other on real estate subject to the
foreclosure auction process;
·
agreed to and did refrain from filing upset
bids against each other in order to effect the ultimate selling price of the
real estate;
·
agreed to make payoffs to, and receive payoffs
from, and made payoffs to and received payoffs from, each other in return for
suppressing competition during the real estate foreclosure process;
·
failed to disclose such payoffs on certain
closing statements and other documents material to the foreclosure auction
process;
·
obtained property and money from financial
institutions, lienholders and/or homeowners under false or fraudulent
pretenses;
·
filed fraudulent self-certifications with the
courts and/or court clerks to enable them to obtain illegal Writs of
Possessions and to violate the possessory rights of homeowners;
·
sought and received economic benefits from
the rental and sale of real estate purchased through the rigged foreclosure
auction process; and
·
used certain proceeds from the rental and
sale of real estate purchased through the rigged foreclosure auction process to
make certain payoffs in furtherance of the conspiracy.
The Sass Co-Conspirators Have a History
Collusion in Tax Lien Auctions in Other Jurisdictions
In addition to the Sass entities’ participation in the
collusive activities with respect to TSC auctions in New Jersey, Sass has
colluded with other persons and entities at tax lien auctions in other
jurisdictions and has been ordered to pay millions of dollars for its
participation in such activities.
For example, in 2007, MD Sass Investors Services, Inc.,
MD Sass Tax Lien Mgmt., LLC, Sass-Muni IV, LLC, Sass-Muni V, LLC, as well as
two Sass executives, coconspirator Vinaya Jessani and Kirk Allison, were sued
in a federal RICO action in United States District Court for the Northern
District of Illinois, captioned BCS Services, Inc. and Phoenix Indemnity Co. v.
Heartwood 88, LLC, et al., 07-1367 (N.D. Ill.) (“BCS Services”). Messrs.
Jessani and Allison were Vice Presidents at Sass in New York, and were
responsible for Sass’ tax lien purchases nationwide, including in the State of
New Jersey. Messrs. Allison, as well as Co-Conspirator Jessani, were terminated
from their employment with M.D. Sass as a result of their participation in the
conspiracy alleged herein as well as the conspiracy alleged in BCS Services.
In BCS Services,
the plaintiffs alleged that the Sass entities and other persons and entities
colluded at annual tax lien auctions in Cook County, Illinois during the period
2002 through 2007. The complaint filed against the defendants alleged, inter
alia, violations of the Racketeer Influenced and Corrupt Organizations Act
(RICO), 18 U.S.C. 1962 et seq. 89. Specifically, the plaintiffs alleged that
the defendants, including the Sass entities, Jessani and Messr. Allison,
conspired in an effort to undermine the integrity of the tax lien auction
process in Cook County. Sass and the other defendants falsely certified their
compliance with Cook County auction requirements, and also created a number of
sham entities to bid at auctions in Cook County in order to obtain as many tax
liens as possible. Like the Sass entities did here, prior to each auction, Sass
would collude with other persons and entities by divvying up the liens to be
auctioned and deciding in advance which liens each auction attendee would bid
on.
Following a jury trial, the jury found the defendants,
including the Sass entities, guilty of violating in RICO in connection with its
activities at the Cook County auctions. The Sass entities were ordered to pay
the plaintiffs $2.5 million as compensatory damages and approximately $2
million in punitive damages.
VI. FRAUDULENT CONCEALMENT
Defendants and their Co-Conspirators deliberately hid
their anticompetitive practices from Plaintiff, engaging in affirmative and
fraudulent concealment of their unlawful scheme, conspiracy and course of
conduct from Plaintiff.
Defendants and their Co-Conspirators have also engaged in
an elaborate series of affirmative acts, including secret bid-rigging, to
create the illusion of a competitive market where none existed.
Defendants and their Co-Conspirators failed to disclose
their unlawful practices of rigging bids at municipal tax lien auctions in New
Jersey in any documents provided to Plaintiff.
Further, Plaintiff would not be among the attendees and/or bidders at
public tax lien auctions and thus, would not have observed any collusion among
the Defendants and their Co-Conspirators. In addition, Co-Conspirator Mooring
denied the existence of the conspiracy, and as recently as 2010,
Co-Conspirators Mooring and Xspand were touting their rigorous antitrust
training practices. See JPMorgan Unit Subpoenaed.
Plaintiff therefore could not have reasonably discovered
the deceptive and anticompetitive practices of Defendants and their
Co-Conspirators until the Department of Justice’s investigation into the
conspiracy in New Jersey was made public in or around mid-2011.
Defendants and their Co-Conspirators continued to engage
in and conceal their fraudulent scheme since the conspiracy began at least as
early as 1998 through at least February 2009.
Plaintiff did not and could not have discovered their
causes of action until the time at which an investigation was made, thereby
tolling any applicable statute of limitations.
In addition, Defendants and their Co-Conspirators engaged
in a successful bid rigging conspiracy that they affirmatively concealed by
meeting secretly (including through the use of private, in-person
communications) to discuss auctions for tax liens throughout the State of New
Jersey, and by agreeing among themselves at meeting and in communications not
to discuss publicly, or otherwise reveal, the nature and substance of the acts
and communications in furtherance of their alleged scheme
As a result of the fraudulent concealment of Defendants
and their Co-Conspirators of their bid-rigging scheme, any applicable statute
of limitations related to any claims which Plaintiff have brought or could
bring have been tolled.
VII. EFFECTS OF THE DEFENDANTS’ UNLAWFUL CONSPIRACY
The conspiracy to rig bids and allocate the market for
TSCs auctioned in New Jersey during the conspiracy period harmed Plaintiff. The
unlawful scheme resulted in an artificially inflated interest being associated
with liens that have been placed on properties owned Plaintiff. This inflated
interest: 1) forced Plaintiff to pay artificially inflated interest on
delinquent tax obligations; and/or 2) resulted in an artificially inflated
interest being associated with the delinquent tax obligation which encumbers
the property of Plaintiff which he is legally required to repay in order to
maintain ownership over the property.
As a direct and proximate result of Defendants’ and their
Co-Conspirators unlawful contract, combination and conspiracy, Plaintiff was
injured and financially damaged in their business and property by having to pay
more interest with respect to their delinquent tax obligation than they would
have absent Defendants’ and their coconspirators’ unlawful activities, and
having the equity in their property impaired, and in some cases, losing title
to their properties in tax sale foreclosures they were unable to prevent due
the impairment of their creditworthiness resulting from the tax lien
foreclosures. The total amount of damages is presently undetermined but is in
the millions of dollars.
ADDITIONAL CRIMINAL ACTS COMMITTED BY DEL VECCHIO,
AMERICAN TAX FUNDING, LLC AND OTHER DEFENDANTS
Robert A. Del Vecchio committed a number of other crimes
against Plaintiff: by making an ex-parte fraudulent certification to a Mercer
County Clerk in May 2011 (Dr. Stephanatos’ home was located in Passaic
County; to fool the courts and to
violate the possessory rights of Dr. Stephanatos, Del Vecchio made the
conscious decision to file his fraudulent ex-parte certification in a Mercer
County Clerk (not before a Law Division Judge), in violation of state law) that
Plaintiff had no possessory interests in his home; he then hired his friends
Passaic County officers Lucas and D’Agostino (he resides in the same town as
Del Vecchio) to perform an unlawful eviction from Plaintiff’s home and committed
a forceful entry in violation of the New Jersey Forceful Entry statutes, he
lied to judge McVeigh that Plaintiff owed $65,000 in taxes without revealing to
the Judge McVeigh that Plaintiff was in dispute with Wayne Township due to the
over-assessment of his property and that the taxes allegedly “owed” (Plaintiff
disputes that he owed any taxes to the Township) were significantly less; Del
Vecchio continued to feed Judge McVeigh on an ex-parte basis lies and
fabrications (such as that Plaintiff had not paid taxes since 1993).
These are the same practices that the Del Vecchios have
used throughout his area of fraudulent activities (Townships of Wayne, Borough
of Fort Lee, his home town of Hawthorne, New Jersey, and many other
municipalities). For example, on
September 28, 2010, Robert Del Vecchio purchased Tax Sale Certificate #2010-04,
from the Town of Hawthorn, NJ, charging more than 20 percent interest. He received more than $4,200 in interest
alone when the property owner redeemed the certificate on August 6, 2012. This interest is in excess of twenty
percent. There are numerous instances
like that available and known to the Plaintiff that will be provided to the
Court at trial.
Robert Del Vecchio also served as a lawyer for defendants
American Tax Funding, LLC and American Tax Holdings, LLC and Plymouth Park Tax
Services, LLC ( a subsidiary of J.P Morgan Chase). Del Vecchio reached an agreement with these
defendants not to bid for himself or the Del Vecchio Pension Trust and would
instead allow American Tax Funding or American Tax Holdings or Plymouth Park
Tax Services, LLC to charge the 18 percent or greater rate onto the tax lien
certificate. In exchange, Del Vecchio
would represent these defendants in any foreclosure and other legal
proceedings. Del Vecchio would also make
false certifications to the courts and clerks of the courts that the property
owners have no possessory interests in their homes so that these conspirators
would seize homeowners’ property, enriching themselves and causing many millions
in property and business damages to homeowners, including the Plaintiff.
Del Vecchio and American Tax Funding, LLC met in person
or communicated through the internet, email, voice mail, fax or telephone
communications numerous times during this period to discuss their parallel
conduct, to form a strategy for defrauding Plaintiff of his property;
The purpose of all the communications between the
defendants was to facilitate the conspiracy.
As indicated earlier, 15 individuals and companies have
already pled guilty to conspiracy charges filed against them by the United
States.
SUBSEQUENT CONSPIRATORIAL ACTS OF THE DEFENDANTS TO FORCE
DR. STEPHANATOS OUT OF HIS HOME AND PLACE OF BUSINESS
I will include below a summary of the subsequent
conspiratory acts of the defendants so that the Court sees the magnitude of the
criminal activities of American Tax Funding, Del Vecchio, Weisenbacher, Brian
Lynch, and others.
Dr. Stephanatos was not personally liable for the
property taxes and no personal judgment could have been issued against
him. Only an in rem proceeding could have been legally instituted to take title
from him and to force him out of his residence.
However, according to New Jersey law only the municipality can institute
an “in rem” proceeding. The municipally held liens can be foreclosed
by municipalities under the In Rem Tax Foreclosure Act codified in N.J.S.A.
54:5-104.29 et seq. However, a private
entity, such as ATF and Del Vecchio, is not allowed by New Jersey law to
perform in rem foreclosures.
What these defendants did, then, was to treat the real
estate taxes as a personal debt and they used the “in personam” foreclosure proceedings that are applicable to
debtor-creditor residential mortgage proceedings or in situations where a
person is personally liable for a debt.
However, according to New Jersey law "A tax against real estate is
not a debt of the owner; it is not founded on a contract express or implied but
is an imposition against the property and no personal liability attaches."
(emphasis added) Francis Realty Co. v. Newark, 16 N.J. Misc. 328, 330
(Essex Co. Cir. Ct. 1938). This position
is supported by Rothman v. River Edge, 149 N.J.Super. 435, 374 A.2d 36
(App.Div. 1977), certif. den., 75 N.J. 19, 379 A.2d 250 (1977) in that court's
statement that the unpaid taxes could not result in a judgment against the
taxpayers but shall be a lien against the premises. [149 N.J. Super. at 442,
374 A.2d 36].
Thus, because the real estate taxes were not a personal
debt of the Plaintiff and no personal liability attaches, these defendants
could not have used the residential mortgage foreclosure proceedings or the “in personam” foreclosure proceedings to
determine ownership and possession of the land and actual
possession of the land. This could only
have happened through an “in rem”
proceeding and that proceeding could have only been conducted by municipalities
under the In Rem Tax Foreclosure Act codified in N.J.S.A. 54:5-104.29 et
seq. Thus, the actions of the defendants
are thoroughly unlawful and also prohibited by the Public Use Clause of the
Federal and State Constitutions. These
irregularities also raise issues of Taking of Private Property without Due
Process of Law, i.e., a Due Process 14th Amentment violation.
The “private taking” that was conducted by the defendants
is prohibited by the federal constitution. The Public Use Clause provides that
“one person's property may not be taken for the benefit of another private
person without a justifying public purpose, even though compensation is paid.” Hawaii
Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984) (quoting Thompson v.
Consol. Gas Corp., 300 U.S. 55, 80 (1937). Because a private taking cannot be
constitutional even if compensated, “[a] plaintiff that proves that a
government entity has taken its property for a private, not a public, use is
entitled to an injunction against the unconstitutional taking, not simply
compensation.” Carole Media LLC v. N.J. Transit Corp., 550 F.3d 302, 308
(3d Cir. 2008).
Here, there is no dispute that Plaintiff’s property was
taken for a private purpose, as the almost $500,000 was given by corrupt or
incompetent Judges such as Margaret McVeigh to ATF and Robert Del Vecchio for
few thousand dollars in taxes. In a
recent (July 3, 2014) decision, in Royal Tax Lien Services, LLC v Morodan,
Appellate Division, Docket No. A-6030-12T1, July 3, 2014 the New Jersey
Appellate decision vacated a judgment issued by a Chancery Judge on the basis
that the Chancery Judge failed to weigh the significant equity of the homeowner
and failed to perform fact finding and determine the applicable law. Here is a brief summary of the reasoning
provided by the Appellate Division in vacating the Chancery judge’s decision.
Moreover,
if the final judgment stands, plaintiff will receive property that, according
to defendants, is valued at $650,000 for an approximate $65,000 investment.
That is a factor that should have been taken into account when balancing the
equities. See I.E.'s, L.L.C. v. Simmons, 392 N.J. Super. 520, 537 (Law
Div. 2006) (tax sale certificate foreclosure system can be
"Dickensian" where owners hold substantial equity in property.
"Until the Legislature devises a better system, courts of equity must do
their best to balance the equities, taking into account the necessity of
allowing the transfer of clear title and the need to compel the payment of
property taxes against the necessity of ameliorating, in appropriate
circumstances, the onerous impact of the procedure").
The conspirators and the sheriff knew that the above
statutes and Appellate case law protect Plaintiff’s right to remain in actual
possession of his residence. In addition,
N.J.S.A. 2A:39-7 says that title shall not be an issue since Plaintiff
was in continuous possession of his residence for 16 years. N.J.S.A.
2A:39-7 Title not inquired into; defense of 3 years possession. Title shall not be an issue in any action
commenced under this chapter. 3 years peaceable possession by the defendant shall
be a defense to the action.
Dr. Stephanatos wants to inform the Court that New Jersey
Law (N.J.S.A. 2A:39-1) cited by the Mercer County Judge Jacobson (the
court should note that Dr. Stephanatos’ residence was located in Passaic
County, not Mercer County; therefore, Judge Jacobson had no jurisdiction over
the property or the person; all her
orders were null and void ab initio), prohibits the unlawful entry in any real
property occupied solely as a residence by the party in possession, unless the
entry and detention is made pursuant to legal process as set out in N.J.S.A.
2A:18-53 et seq., as amended and supplemented, including in accordance with
a host of other laws.[1] The above law specifically applies to Dr.
Stephanatos, because Dr. Stephanatos was in possession of this home
continuously since 1995 and it was being used as his residence.
In May 2011, following the fraudulent issuance of a
judgment by a Mercer County Court that had no jurisdiction over neither the
Plaintiff nor his residence, Dr. Stephanatos became at least a “tenant at
sufferance”.[2]
Dr. Stephanatos also had significant possessory interest, including the filing
of a Suit to Vacate the Tax Deed[3],
the filing of two appeals, the possession of a business in the premises
(Metropolitan Environmental Services, PC and Metropolitan Environmental
Services), and the right to buy back the rights to the property. See N.J.S.A.
54:5-104.100. This state law is
consistent with the legislative findings in N.J.S.A. 2A:18-61.1a.
N.J.S.A. 2A:18-61.1a. Findings
The Legislature finds that:
a. Acute State and local shortages of supply and high
levels of demand for residential dwellings have motivated removal of blameless
tenants in order to directly or indirectly profit from conversion to higher
income rental or ownership interest residential use.
b. This has resulted in unfortunate attempts to displace
tenants employing pretexts, stratagems or means other than those provided
pursuant to the intent of State eviction laws designated to fairly balance and
protect rights of tenants and landlords.
c. These devices have circumvented the intent of current
State eviction laws by failing to utilize available means to avoid displacement,
such as: protected tenancies; rights to purchase; rent affordability
protection; full disclosures relevant to eviction challenges; and stays of
eviction where relocation is lacking.
The
applicable statutes here are the so called Summary Dispossess Act statutes. The
Summary Dispossess Act, N.J.S. 2A:18-53 et seq. was enacted in 1951 and
amended in 1983 and 1991. Since
enactment of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., the Summary
Dispossess Act has been understood to cover the eviction of nonresidential
tenants and residential tenants not covered by the Anti-Eviction Act. This is a very critical issue for the Court to
note. Source: STATE OF NEW JERSEY, NEW JERSEY LAW REVISION
COMMISSION, Final Report Relating to Landlord and Tenant Law, February 10, 2012.
This Court should also compare the law of the state of
New York, where similar process must be followed, i.e., the issue of actual
possession must be decided by a Law Division Judge, after a new owner (a tax
sale purchaser) has met the conditions for taking possession. The court should note here that ATF and
Robert Del Vechhio did not take possession of the property; they only wanted to remove Dr. Stephanatos
from the property. They immediately sold
the property for $330,000 to a third party.
The Court should note that the conspirators could have sold the property
without violently removing Dr. Stephanatos from his home and place of business.
Based on New Jersey and New York law, including the law
of all other states, to remove a person in actual possession, the owner must
occupy the premises himself (this was not the case here as ATF did not take
actual possession of the premises and only took constructive possession) or no
rent was being paid or for breach of the peace.
In other words, only after they met few exceptions (such as not paying
rent, etc.) and through an Order from a Law Division Judge could have allowed
these defendants to enter Dr. Stephanatos’ property and to remove him from his
dwelling in tax lien cases.
The defendants intentionally did not follow the
Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., and the Summary
Dispossess Act, N.J.S. 2A:18-53 et seq. and refused to follow the Unlawful
and Forceful Entry and Detainer statutes of the state of New Jersey, and they
willfully lied to the Mercer County Clerk in May 2011 that there were no persons
in the premises (see Exhibit C for the willful misrepresentation by Robert Del
Vecchio that no persons with possessory interests were present at the residence
of Dr. Stephanatos) protected by either the Anti-Eviction Act N.J.S.A.
2A:18-61.1 et seq., or the Summary Dispossess Act, N.J.S.A. 2A:18-53 et
seq.
These criminals[4]
(especially Robert Del Vecchio, Jr., Esq and Robert Del Vecchio, Sr., Esq who
are both lawyers in New Jersey) knew that this was a residential property and
this was not a mortgage foreclosure case and they knew that they had to comply
with the Unlawful Entry and Wrongful Entry statutes – but they knowingly
decided not to comply with the state law.
This way they managed to fool the sheriff (there is significant
evidence, however, that Del Vecchio, D’Agostino and Lucas formed a conspiracy
to violate the legal rights of the Plaintiff) to perform an unlawful search and
unlawful entry and to forcefully remove Dr. Stephanatos from his lawfully-occupied
residence on June 28, 2011.
State statute N.J.S.A. 2A:18-57 requires that a
judgment of possession must be issued by a Law Division judge, followed by a
warrant for removal. Specifically, state
law requires that a Warrant for Removal must be obtained by a Law Division
judge (see N.J.S.A. 2A:18-57 for non-leaseholders and N.J.S.A.
2A:42-10.1 for leaseholders)).
2009
New Jersey Code
TITLE
2A - ADMINISTRATION OF CIVIL AND CRIMINAL JUSTICE
Section
2A:18
2A:18-57.
Judgment for possession; warrant for removal; issuance
If no sufficient cause is shown to the contrary when the action comes on
for trial, the court shall issue its warrant to any officer of the court,
commanding him to remove all persons from the premises, and to put the
claimant into full possession thereof, and to levy and make the costs out
of the goods and chattels of the person in possession.
No warrant of removal shall issue until the expiration of 3 days after
entry of judgment for possession, except as provided for in chapter 42 of
this Title.
L.1951
(1st SS), c.344; amended by L.1979, c. 392, s. 1, eff. Feb. 6, 1980.
Furthermore, Section 2 of P.L.1974, c.47 (C.2A:42-10.16)
reads as follows:
2.
In any proceeding for the summary dispossession of a tenant, warrant for
possession issued by a court of appropriate jurisdiction: a.
Shall include a notice to the tenant of any right to apply to the court for a
stay of execution of the warrant, together with a notice advising that the
tenant may be eligible for temporary housing assistance or other social
services and that the tenant should contact the appropriate county welfare …
No such notice was provided in the Writ of Possession
issued by a Clerk of Mercer County (again, that Mercer County court had no
jurisdiction over property that is located in other counties).
The defendants fraudulently and willfully refused to
obtain such judgment of possession from a Law Division judge and a warrant for
removal and instead provided a certification to a Clerk of the Mercer County
that no persons with possessory interests were present, when in fact Plaintiff
was in actual peaceful possession continuously since 1995.
On September 30, 2013, Robert U. Del Vecchio pleads
guilty to Sherman Act violations from 2000 to 2008. Multiple felony charges will be filed soon
against American Tax Funding, LLC, and others.
In most states, including New Jersey, “it is immaterial
in a suit for forcible entry and detainer whether plaintiff has the legal right
of possession, and the action lies so long as the plaintiff had peaceful prior
possession and was forcibly put out of that possession by the defendant, even
if the plaintiff was devoid of any of the muniments of title or was a
trespasser.” 35A Am. Jur. 2D Forcible Entry and Detainer § 18 (2001). See,
e.g., Allen v. Harris, 755 S.W.2d 393, 395 (Mo. Ct. App. 1988) (“In an
action of forcible entry and detainer, the sole issue is a question of actual
possession, and not the right of possession, since one may be wrongfully in
possession, yet he cannot be dispossessed against his will.”); Floro v.
Parker, 205 So. 2d 363, 365-66 (Fla. Dist. Ct. App. 1967) (holding legal right
of possession “immaterial” in an action for forcible entry and detainer).
PROOF OF THE IMPERMISSIBLE OVER-ASSESSMENT OF DR.
STEPHANATOS’ PROPERTY
Plaintiff’s property was assessed by the Wayne Township
Assessor at $237,000 from 1995 through 2011;
The average common level ratio in Wayne Township from
1995 through 2011 is 50 percent;
Based on an average common level ratio of 50 percent, and
an assessed value of $237,000, the Assessor valued Plaintiff’s property at
$237,000/0.50 = $474,000; this is the
“true value” used by the Assessor in determining Plaintiff’s assessed
valuation;
The actual value of Plaintiff’s property in 2011 has been
established at $330,000 based on the sale of the property in December 2011
after the conspirators forcibly and illegally removed Dr. Stephanatos from his
home; thus, the Assessor’s “true value”
was forty percent (40%) greater than the actual value of Plaintiff’s property
(40%= $474,000/$330,000); this
overvaluation resulted in forty percent (40%) more taxes being levied onto
Plaintiff’s property;
In May 1995, the Plaintiff bought the property for
$237,000; this is evidence of the fair market value or true value of the
property in that year;
In 1996, the Assessor, however, despite having knowledge
of this true value, assessed Plaintiff’s property as if his property was valued
at $475,000; this is impermissible over assessment because it exceeds the
common level ratio by more than 15 percent;
this over assess Since Plaintiff has been writing to the municipality
that his property was in fact over assessed, there is a question of fact as to
what the municipal defendants knew, when it knew it and what they decided to do
about it. Plaintiff informed the
municipality numerous times that the collection that they were attempting was
illegal and unconstitutional, but to no avail.
Now, these defendants do not want this Court to adjudicate the issues of
over assessment and illegal state school taxes and illegal collection in a
summary proceeding, without any discovery, as if they have done nothing wrong,
while Plaintiff’s person and property have been damaged irreparably.
This over-assessment of Plaintiff’s property continued
from 1996 through 2011, resulting in more than $45,000 in unlawful charges onto
Plaintiff’s property. As a result,
Plaintiff did not owe any money to the municipality.
Further proof of the negligence or deliberate
indifference of the municipal defendants is provided by the fact that as of
today’s date, the municipal defendants have not revised the assessment of the
687 Indian Road property, despite having proof of the fair market value of the
property.
Throughout the 2001-2011 period, the area was subjected
to flooding and/or elevated groundwater levels causing damages through water
intrusion into Plaintiff’s home. Exhibit
D also provides evidence of the damage by flooding to Plaintiff’s home because
the insurance company provided reimbursement for the flooding caused by the
sump pump failure. The sump pumps were
operating continuously for several months due to the massive amounts of water
entering the subsurface area of his home.
Yet, they decided not to act by reducing the value of the
assessed property and they never visited the property to confirm the statements
by the Plaintiff; instead, they decided to intentionally violate Plaintiff’s
Fourth Amendment rights (see also N.J.
Const. (1947), Art. I, Par. 7) against unreasonable seizures and in the process
they caused Plaintiff very significant economic and non-economic losses. In fact, these defendants claim that the
Court shall order no discovery on their obviously egregious conduct.
The grand jurors were not allowed to hear Dr.
Stephanatos’ accusations that the now convicted conspirators had violated
numerous state laws, including the criminal conspiracy, the violation of the
New Jersey Constitution, the Forceful Entry and Detainer law, the
over-assessment of his property, the flooding in his property, and the New
Jersey Tax Sale Law. Dr. Stephanatos
initially hired Mr. Carl Herman, Esq. to get him to the grand jury and present
his exculpatory evidence that shows that all the accusations of the Passaic
County sheriff’s employees were fabricated.
But the prosecutors (Walter Dewey) refused to allow us to present any
evidence to the grand jury. Instead,
they committed the above stated violations of state laws and procedures.
APPELLATE DECISIONS ARE IN FAVOR OF DR. STEPHANATOS KEEPING
HIS HOME
In a recent (July 3, 2014) decision, in Royal Tax Lien
Services, LLC v Morodan, Appellate Division, Docket No. A-6030-12T1, July
3, 2014 the New Jersey Appellate decision vacated a judgment issued by a
Chancery Judge on the basis that the Chancery Judge failed to weigh the
significant equity of the homeowner and failed to perform fact finding and
determine the applicable law. Here is a
brief summary of the reasoning provided by the Appellate Division:
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6030-12T1
ROYAL TAX LIEN SERVICES, LLC,
d/b/a CRUSADER LIEN SERVICES,
Plaintiff-Respondent,
v.
JOSEPH MORODAN and SYLVIA MORODAN,
husband and wife,
Defendants-Appellants,
and
STATE OF NEW JERSEY and
THE NEW JERSEY ECONOMIC
DEVELOPMENT AUTHORITY,
Defendants.
Moreover,
if the final judgment stands, plaintiff will receive property that, according
to defendants, is valued at $650,000 for an approximate $65,000 investment.
That is a factor that should have been taken into account when balancing the
equities. See I.E.'s, L.L.C. v. Simmons, 392 N.J. Super. 520, 537 (Law
Div. 2006) (tax sale certificate foreclosure system can be
"Dickensian" where owners hold substantial equity in property.
"Until the Legislature devises a better system, courts of equity must do
their best to balance the equities, taking into account the necessity of
allowing the transfer of clear title and the need to compel the payment of
property taxes against the necessity of ameliorating, in appropriate
circumstances, the onerous impact of the procedure").
Finally,
the judge did not even mention plaintiff's alleged failure to provide adequate
notice to defendants. It is always necessary for a judge to render findings of
fact and rulings of law; in this type of case where the courthouse doors seem
to have been slammed shut on defendants who might have thereby inequitably lost
a valuable property, it was crucial. See Ronan v. Adely, 182 N.J. 103,
110-11 (2004); Cameco, Inc. v. Gedicke, 157 N.J. 504, 509-10 (1999); Kas
Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 562-63 (App. Div.),
certif. denied, 200 N.J. 476 (2009).
Here, I had full equity in my home which was valued by
the Wayne Township for almost $500,000.
Judge McVeigh failed to perform a fact-finding and rule of law to
determine the significant equity I had in my home and that based on the above
case law cited by the Appellate Division, weighted heavily on my favor. The alleged taxes owed (although I disputed the
taxes due to overvaluation of the home) were about $20,000. Judge McVeigh, to justify her actions stated
that I did not pay taxes since 1993, which was not true. I only disputed the over-assessment of my
property and I did pay all taxes from 1993 through 2005; then, after my
property was damaged by flooding, I paid about 50 percent of the taxes
assessed. In January 2013, Dorothy
Kreitz, the Wayne Township Tax Assessor admitted that the properties are
overvalued and that no assessment has been performed since 1995. These statements were made by Dorothy Kreitz
in a letter to Dr. Stephanatos.
Thus, as in Royal Tax Lien Services, v. Morodan
case, supra, Judge McVeigh failed to
perform any fact finding and statement of the law in violation of NJ Court Rule
1:7-4(a), and instead repeated all the falsehoods of the conspirators: Robert Del Vecchio and American Tax
Funding. Consistent with the decision of
the Appellate Division cited above, I submit to this Court that the Appellate
Division would have vacated the Chancery Court’s judgment that it issued in May
2011. But the conspirators acted in
speed and fraud and hired the sheriff to force me out of my home without the
docketed appeals ever being heard.
Criminal thugs all around.
VIOLATION
OF THE FORCEFUL ENTRY AND DETAINER LAWS OF NEW JERSEY BY THE SHERIFF
What is Forcible Entry
and Detainer?
A Forcible Entry and Detainer is an
action that a landlord, or new property owner can take if the existing occupant
refuses to leave after appropriate notice. This occupant could be either a tenant or
original owner of property that was sold at a foreclosure or trustee's sale. The laws governing forcible entry and detainer
actions are different if the property is residential or non-residential.
The tenant/occupant must receive a
written demand to vacate the property.
No such demand was received by the defendant. The term of the period to vacate is dictated
by the type of occupancy - whether commercial or residential and whether a
tenant or an owner that was foreclosed on. This term normally is either 5 or 7 days,
unless the contract states otherwise. After the 5-7 days expire and the
tenant/occupant still refuse to leave then a complaint for a forcible detainer
action can be filed. The statutes provide for a short notice period before a
court hearing. The sole issue at the court hearing is whether or not the
tenant/occupant has the right to possession.
If they do not then they will be found guilty of a forcible entry and
detainer.
The
law in New Jersey is clear. Landlords or their employees or their agents (the
sheriff officers are considered in fact agents of the conspirators ATF and
Robert Del Vecchio, as they were paid by them) can’t legally evict tenants by
themselves. (These kinds of evictions are sometimes called self-help evictions.. Police
officers cannot evict tenants. Only a special
court officer with a warrant for removal issued by a judge can actually
evict a tenant. Landlords who try to evict tenants by themselves are doing
something illegal, even if they have gone to court and sued the tenant for
eviction. Cite: N.J.S.A. 2A:
39-1 and 2; N.J.S.A. 2A:18-57; N.J.S.A 2A:42-10.16; and related
statutes. Source: http://www.lsnjlaw.org/Housing/Landlord-Tenant/Evictions/Pages/Fighting-Evictions.aspx#.ViqUTysuxSM
But even though the law is clear,
some landlords still evict tenants illegally, or scare tenants into leaving by
threatening to throw them out. The problem is that many times, when frightened
tenants call the police, the police will not help. The police say that they
can’t help because what the landlord is doing is not listed in the criminal
part of the law books as a “disorderly persons offense” or a “crime.” The
police often say that they only deal with crimes, even if they know that what
the landlord is doing is wrong.
The New Jersey Tenants Organization
(NJTO) had been trying for many years to solve this problem. They finally
succeeded. On January 12, 2006, the law was changed. (See P.L. 2005, c. 319.) Illegal evictions are now a disorderly
persons offense, and the new law is in the criminal part of the law books.
The police now know that they must help tenants who are being illegally
evicted by their landlords.
Here are some of the things this
law does. Cite: N.J.S.A.
2C:33-11.1.
·
The new law requires the police or
any other public officials who find out about an illegal “self-help” eviction
to warn the landlord or his workers to stop. If the landlord does not stop,
then the landlord has broken the law. If the police arrive after the landlord has already locked
the tenant out, the police must tell the landlord to let the tenant go back in.
If the landlord refuses, then the landlord has broken the law.
·
The police must make sure that
tenants who are illegally evicted get back into their home or apartment. If the
landlord tries to keep the tenants from going back in, the police must stop the
landlord. The police must also give the landlord a summons to go to court, or
even arrest the landlord if he refuses to let the tenant go back in.
·
The new law says that a landlord
who tries to get a tenant out by doing any one of the following things is
breaking the law. These things are now disorderly persons offenses: (1) The
landlord uses violence or threats of violence to get the tenants out; or (2)
the landlord says or does other things to try to scare the tenants into
leaving; or (3) the landlord takes the tenant’s property and puts it outside;
or (4) the tenant lets the landlord in peacefully, and then the landlord forces
the tenant out; or (5) the landlord padlocks the door or changes the locks; or
(6) the landlord shuts off the electricity or gas, or has them shut off, in
order to make the tenant leave; or (7) the landlord tries anything else to get
the tenant out.
·
The
only way the landlord can evict the tenant is if a special court officer with a
legal court order called a warrant for removal comes out himself and does the
eviction. And even before the special court
officer can do the eviction, he must give a copy of the warrant for removal to
the tenant (or leave a copy on the tenant’s door) at least three days before
coming out to do the actual eviction. The new law says that the warrant for
removal must tell the tenant many things, including that self-help evictions by
landlords are now disorderly persons offenses. The warrant must also let the
tenants know the earliest day on which the special court officer can come back
to do the eviction.
·
The new law says that if a special
court officer does do a legal eviction, he or she must fill out a new form
called an “execution of warrant for possession.” The new form must say when the
legal eviction took place, and give the name, signature, and position of the
special court officer who did the eviction. The special court officer is required to immediately give a copy of
this new form to both the landlord and tenant (or a member of the
tenant’s family), and also to post it on the door of the dwelling unit.
This last part is very important. It makes the job of the police officer who is
called by a frightened tenant very easy. If
the landlord does not have a copy of a valid execution of warrant filled out by
a special court officer, then the landlord is doing an illegal eviction.
The police officer must tell him to stop trying to evict the tenant. If the
landlord does not stop, then the police officer must stop the landlord and
charge him with a disorderly persons offense. The police officer must also
protect the tenant and see that the tenant gets back into the home.
·
The new law says that the Attorney
General of New Jersey must make sure that all state and local police officers,
prosecutors, and public officials know about the new law. Each police officer
must be given a form that describes the new law and the police officers’
responsibilities to enforce it. Police officers must also be given special
training to make sure they know what they have to do to stop illegal evictions.
The sheriff admits and Lucas and D’Agostino testified
during the grand jury proceedings that they performed a forceful entry into a
residential property in direct violation of N.J.S.A.
2A:33-1 et seq.
Their defense is that they performed this forceful entry pursuant to a
court order. However, no Warrant for
Removal had been issued by a Law Division Judge who had jurisdiction over the
property, as is mandated by the Unlawful Entry and Detainer state law (see N.J.S.A. 2A:18-57): The ex-parte Writ of Possession had been
issued not by a Law Division Judge as is required by New Jersey Law, but by a
Mercer County Clerk, who had no jurisdiction over the property, after the
fraudulent ex-parte certification by conspirator Del Vecchio, Esq (working for
co-conspirator American Tax Funding, LLC (“ATF”)) that no persons with
possessory interests were present at the residence.
These sheriff employees also testified that Dr.
Stephanatos had stated
“I am not going anywhere”.
Therefore, it is irrefutable fact that the sheriff knew
that he had to obtain a Warrant for Removal but he failed to do so. The sheriff decided to forcibly evict Dr.
Stephanatos in violation of state law, and the motive of the sheriff must be
questioned, as the sheriff was paid thousands of dollars by the conspirators
ATF and Robert Del Vecchio to perform these illegal acts. During the grand jury proceedings, Lucas and
D’Agostino lied to the jury when they said that they were merely trying to
deliver eviction papers. The reason we
believe they lied is that they stated that “several officers were dispatched at
the property”. Typically only one
officer is needed to serve documents, yet Lucas admitted in his testimony that at least two sheriff cars and several officers went at the
dwelling of Dr. Stephanatos not to serve documents only but also to remove him
in violation of the New Jersey Forceful Entry and Detainer laws. So, Lucas continues to lie about his
objectives during June 28, 2011. It is
possible that Lucas has been part of the Italian Mafia Tax Lien organized
conspiracy against the defendant and many New Jersey homeowners.
The Court should note that these convicted criminals used
the mortgage foreclosure procedures that are not applicable to a tax lien
foreclosure case. This is very critical
for the Court to understand. The grand
jurors were never informed of these crucial facts.
Defendant incorporates by reference the facts, arguments,
authorities and Appendices provided to this Court in 2012 with the Motion to
Change Venue.
POINT
I
THE
INDICTMENT MUST BE DISMISSED WITH PREJUDICE BECAUSE THE STATE NEVER INFORMED
THE GRAND JURORS THAT THE PASSAIC COUNTY SHERIFF FAILED TO OBTAIN A MANDATORY
WARRANT OF REMOVAL; MISLED THE GRAND JURORS REGARDING THE COMMERCIAL INSTRUMENT
LOCATED IN DEFENDANT’S PLACE OF BUSINESS; FAILED TO INFORM THE GRAND JURORS
THAT DEFENDANT’S PROPERTY WAS IMPERMISSIBLY OVER-ASSESSED AND NO TAXES WERE
LEGALLY DUE; FAILED TO PROVIDE TO THE GRAND JURY EXCULPATORY EVIDENCE OBTAINED
FROM DEFENDANT’S COMPUTER; REFUSED TO ALLOW THE DEFENDANT TO TESTIFY AT THE
GRAND JURY PROCEEDINGS AS A FACTUAL WITNESS AND TO PROVIDE CLEARLY EXCULPATORY
EVIDENCE
I.1 THE
INDICTMENT MUST BE DISMISSED WITH PREJUDICE BECAUSE THE STATE: NEVER INFORMED
THE GRAND JURORS THAT THE PASSAIC COUNTY SHERIFF FAILED TO OBTAIN A MANDATORY
WARRANT OF REMOVAL (SEE N.J.S.A. 2A:39-1
UNLAWFUL ENTRY PROHIBITED) AND THAT AS RESULT THE SHERIFF EMPLOYEES WERE
TRESPASSING ON DEFENDANT’S PROPERTY
THE GRAND JURY WOULD HAVE ISSUED A NO BILL, IF THE
PROSECUTOR DID NOT COMMIT FRAUD AND BEHAVED OUTRAGEOUSLY AND UNETHICALLY DURING
THE GRAND JURY PROCEEDINGS.
In November 2011, Peter Roby admitted before Judge Filko
that no warrant for removal was obtained prior to the Passaic County sheriff
entered my property and my home. A
Warrant for Removal should have been obtained as is mandated by New Jersey law
(N.J.S.A. 2A:39-1 et seq. and N.J.S.A. 2A:18-57). These individuals (the Sheriff employees)
committed a forceful entry and detainer in violation of the New Jersey Forceful
Entry statutes. However, they lied to
the grand jury and told them that they were lawfully at my door step. To further mislead the grand jurors, Lucas
and D’Agostino testified that they were just delivering process papers, when in
reality they were trying to evict Dr. Stephanatos from his dwelling without
having to procure a Warrant for Removal issued by a Law Division Judge. In fact, these two individuals testified that
“several officers were dispatched to the property”, further proving that they
were there to illegally evict Dr. Stephanatos.
The conspirators (Robert Del Vecchio, American Tax
Funding, et al) and the sheriff employees admit that they performed such a
forceful entry into a residential property in direct violation of N.J.S.A.
2A:33-1 et seq. Their defense is
that they performed this forceful entry pursuant to a court order. However, no
Warrant for Removal had been issued by a Law Division Judge who had
jurisdiction over the property, as is mandated by the Unlawful Entry and
Detainer state law (see N.J.S.A. 2A:18-57): The ex-parte Writ of Possession had been
issued by a Mercer County Clerk, who had no jurisdiction over the property,
after the fraudulent certification by co-conspirator Robert Del Vecchio that no
persons with possessory interests were present at the residence.
Specifically, for entering and removing a person from a
residential property, N.J.S.A. 2A:18-57 requires that a judgment of
possession must be issued by a Law Division Judge, followed by a Warrant for
Removal. State law also mandates that a
notice be provided to the person in possession that s/he has the right to apply
to the court for a stay of execution of the warrant, along with other
notifications. The question again
is: why did Judge Margaret McVeigh
interfered with my possessory rights and encouraged the conspirators to violate
the above stated state laws? The conduct
of this Judge is very much in question, requiring an investigation. I have already suffered $10M in damages and
the violation of many state laws, including Appellate Division decisions by Judge
McVeigh is the sole reason.
As I stated in other letters to this Court, in a hearing
held before Judge Roy McGeady, Municipal Court Presiding Judge, he was shocked
to find out that no Warrant for Removal was obtained prior to entering my
home. The indictment must be dismissed
with prejudice and all evidence obtained and/or seized must also be excluded
and returned to the defendant.
N.J.S.A. 2A:39-7
says that title shall not be an issue since I was in continuous possession of
my residence for 16 years.
N.J.S.A.
2A:39-7
Title not inquired into; defense of 3 years possession. Title shall not be an issue in any action
commenced under this chapter. 3 years peaceable possession by the defendant
shall be a defense to the action.
The Passaic County employees and the conspirators who
hired them (ATF, Robert Del Vecchio, and others) prevented me from going before
a Law Division judge to assert this defense.
That is why they acted with haste and fraud to remove me from my
property. They never stated to the grand
jury that my possession of my home was protected by New Jersey statutes and I
had the right for a hearing before a Law Division judge. They took this right away from me. The conspirators (Robert Del Vecchio and
American Tax Funding) received a fraudulent conveyance (a title transfer) and
they could have sold the home with me still inside it. There was no reason at all to force me under
the gun point to leave the home, unless they would occupy it, i.e., take
possession of the home. But they (Robert
Del Vecchio, ATF) did not occupy the home, as they immediately sold it to a
third party. This is critical for the
Court to understand and enter into the record.
The grand jury was never notified of this law and the indictment must be
dismissed for that reason alone.
I respectfully submit to this Court that the prosecutor
before the grand jury had the same duty to present the exculpatory evidence and
defenses outlined earlier and that, then I was entitled to a no bill under the
law.
Our case law has made clear that under certain
circumstances there is a prosecutorial duty to present exculpatory evidence to
a grand jury. In State v. Gaughran,
260 N.J. Super. 283, 290 (Law Div. 1992) (quoting State v. Engel, 249
N.J. Super. 336, 359 (App. Div. 1991)) a trial court dismissed an indictment
where a prosecutor failed to present exculpatory medical evidence directly
contradicting a complainant’s testimony in a sexual assault case. The opinion noted there was no issue as to
the sufficiency of the evidence before the grand jury, but rather whether the
failure to present exculpatory evidence “stripped the grand jury of its
function to protect the innocent from unfounded prosecution.” Gaughran,
260 N.J. Super. at 287.
In State v. Hogan, 144 N.J. 216, 227 (1996), our
Supreme Court held that there is a prosecutorial duty to present exculpatory
evidence under circumstances where it directly negates guilt. Hogan, 144
N.J. at 237. See also Smith, 269 N.J. Super. At 95 (“prosecutor’s
obligation to exercise his discretion in good faith encompasses the obligation
to give the grand jury evidence in the prosecutor’s possession which clearly
exculpates a defendant”). In doing so,
the Supreme Court explained that the state grand jury clause precludes the
prosecution from “deceiving the grand jury or presenting its evidence in a way
that is tantamount to telling the grand jury a “half-truth” because any
“distorted version of the facts interferes with the grand jury’s
decision-making function”. Hogan, 144 N.J. at 236.
Here, I allege that that the prosecutor fabricated evidence,
lied to the grand jurors, refused to provide clearly exculpatory evidence and
defenses and refused to allow the defendant and/or his witnesses to
testify. This is outrageous and shameful
government conduct of a really grand scale.
I2. Judge McVeigh Failed to Take into
Consideration the Full Equity that Dr. Stephanatos had in his Home; She Also Violated New Jersey Court Rules by
Failing and/or Refusing to Render a Decision in Compliance with Rule 1:7-4(a).
SIGNIFICANT CASE: ROYAL TAX LIEN SERVICES, LLC, D/B/A
CRUSADER LIEN SERVICES, V. JOSEPH MORODAN AND SYLVIA MORODAN, DOCKET NO.
A-6030-12T1, JULY 3, 2014
In a recent (July 3, 2014) decision, the New Jersey
Appellate decision vacated a judgment issued by a Chancery Judge on the basis
that the Chancery Judge failed to weigh the significant equity of the
homeowner. Here is a brief summary of
the reasoning provided by the Appellate Division.
SUPERIOR
COURT OF NEW JERSEY
APPELLATE
DIVISION
DOCKET
NO. A-6030-12T1
ROYAL
TAX LIEN SERVICES, LLC,
d/b/a
CRUSADER LIEN SERVICES,
Plaintiff-Respondent,
v.
JOSEPH
MORODAN and SYLVIA MORODAN,
Husband
and wife,
Defendants-Appellants,
and
STATE
OF NEW JERSEY and
THE NEW
JERSEY ECONOMIC
DEVELOPMENT
AUTHORITY,
Defendants.
Moreover,
if the final judgment stands, plaintiff will receive property that, according
to defendants, is valued at $650,000 for an approximate $65,000 investment.
That is a factor that should have been taken into account when balancing the
equities. See I.E.'s, L.L.C. v. Simmons, 392 N.J. Super. 520, 537 (Law
Div. 2006) (tax sale certificate foreclosure system can be
"Dickensian" where owners hold substantial equity in property.
"Until the Legislature devises a better system, courts of equity must do
their best to balance the equities, taking into account the necessity of
allowing the transfer of clear title and the need to compel the payment of
property taxes against the necessity of ameliorating, in appropriate
circumstances, the onerous impact of the procedure").
Finally,
the judge did not even mention plaintiff's alleged failure to provide adequate
notice to defendants. It is always necessary for a judge to render findings of
fact and rulings of law; in this type of case where the courthouse doors seem
to have been slammed shut on defendants who might have thereby inequitably lost
a valuable property, it was crucial. See Ronan v. Adely, 182 N.J. 103,
110-11 (2004); Cameco, Inc. v. Gedicke, 157 N.J. 504, 509-10 (1999); Kas
Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 562-63 (App. Div.),
certif. denied, 200 N.J. 476 (2009).
Here, I had full equity in my home which was valued by
the Wayne Township for almost $500,000.
Judge McVeigh failed to perform a fact finding and rule of law to
determine the significant equity I had in my home and that based on the above
case law cited by the Appellate Division, weighted heavily on my favor. The alleged taxes owed (although I disputed
the taxes due to overvaluation of the home) were about $20,000. Judge McVeigh, to justify her actions stated that
I did not pay taxes since 1993, which was not true, another false allegation
that worked to defendant’s detriment during the grand jury proceedings. I only disputed the over-assessment of my
property and I did pay all taxes from 1993 through 2005; then, after my
property was damaged by the Ramapo River flooding, I paid about 50 percent of
the taxes assessed. In January 2013,
Dorothy Kreitz, the Wayne Township Tax Assessor, admitted that the properties
are overvalued and that no assessment has been performed since 1995. These statements were made by Dorothy Kreitz
in an e-mail correspondence and it is available to this Court upon request.
Thus, as in Royal Tax Lien Services, v. Morodan
case, supra, Judge McVeigh failed to perform any fact finding and instead
repeated all the falsehoods of the conspirators: Robert Del Vecchio and American Tax
Funding. Consistent with the decision of
the Appellate Division cited above, I submit that the Chancery Court would have
vacated its judgment that it issued in May 2011. The conspirators however acted in speed and
fraud and criminal intend and lied to the Sheriff employees that they can force
me out of my home and place of business without any required Warrant for
Removal.
Apparently, the Chancery Judge in the Morovan
case, supra, had failed to follow the New Jersey Court Rules (failed to perform
fact finding and conclusion of law in violation of Court Rule 1:7-4(a) and
issued a judgment against a homeowner stripping him of his very substantial
equity into his property) and also violated the property rights of homeowners
and public policy this state. The
Appellate Division vacated that judgment.
Unfortunately, I did not have the chance to vacate a
judgment that was wrongfully issued against me by Judge Margaret McVeigh of
Passaic County. A number of state
employees acted in concert with a number of conspirators and stole my property
under the gun point on June 28, 2011.
The tragic events of the armed sheriff officers and S.W.A.T. team
raiding my home and place of business were widely publicized.
After I filed a complaint with the FBI and the U.S.
Attorney’s Office, an investigation revealed a massive conspiracy that involves
state employees. We now know that the
conspirators violently took my homestead property by violating the antitrust
laws, by violating the tax sale laws, by violating to forceful entry and
detainer laws, and many other offences, including the intentional overvaluation
of Plaintiff’s property so that they collect more taxes while they knew that flooding
had reduced my homestead property value.
We also now know that the Chancery Judge Margaret McVeigh violated the
Court Rules and New Jersey law because she failed and/or refused to consider my
full equity into my home and because she never conducted a bench trial to
determine the facts consistent with Rule 1:7-4(a). Another disgrace for the New Jersey legal
system.
There was never any bench trial or other fact finding
performed and the Chancery Judge Margaret McVeigh of New Jersey never stated
the facts or the rule of law. She simply
issued a judgment against me based on the statements of the conspirators Robert
Del Vecchio and American Tax Funding (ATF).
The New Jersey Court Rule, that the incompetent or reckless Judge
McVeigh should have followed, specifically states:
1:7-4.
Findings by the Court in Non-jury Trials and on Motions
(a)
Required Findings. The court shall, by an opinion or memorandum decision,
either written or oral, find the facts and state its conclusions of law thereon
in all actions tried without a jury, on every motion decided by a written order
that is appealable as of right, and also as required by R. 3:29 The court shall
thereupon enter or direct the entry of the appropriate judgment.
The Appellate Division in the case cited below stated the
following: “It need not be reiterated
that the judge considering the matter must render a decision in compliance with
Rule 1:7-4(a). “ ROYAL TAX LIEN SERVICES, LLC, d/b/a CRUSADER LIEN SERVICES,
v. JOSEPH MORODAN and SYLVIA MORODAN, DOCKET NO. A-6030-12T1, July 3,
2014. In my case, the Chancery Judge
Margaret McVeigh never conducted any finding of facts and never stated any
conclusion of law in her actions without a jury. Her decisions must be vacated on that ground
as well.
Therefore, based on the Appellate Division ruling on an
identical case and based on failure to obey many NJ Court Rules, I believe I
have raised some very substantial Procedural and Substantive Due Process issues
that in turn raise entrapment, duress, outrageous government conduct
issues/defenses.
FACTS REGARDING THE JUDICIAL CONDUCT OF JUDGE
MCVEIGH
1.
My residential property had been damaged by
flooding along the Ramapo River and had lost a significant portion of its
value. The Wayne Township Assessor,
Dorothy Kreitz, however, despite having knowledge of the flooding in Dr.
Stephanatos’ property, assessed it as if his property was valued at $475,000
while the property was sold (after the seizure) by American Tax Funding at
$330,000 – this sale value is proof of the fair market value of the residence
and this is the value that the property should have been valued by the Wayne
Township Tax Assessor – but the assessor has been assessing it for almost 40
percent more, at $475,000. This is almost 40 percent over-assessment
of Dr. Stephanatos’ residence and it is an impermissible over-assessment
because it exceeds the common level ratio by more than 15 percent; this over
assessment was void ab initio according to established New Jersey
law.
2.
The
New Jersey Court In Village of Ridgefield Park et al., v. Bergen County
Board of Taxation et al., 62 N.J.Super. 133, 162 A.2d 132 said
that any assessment levied in violation of the constitutional mandate of
uniformity is absolutely void Ab initio. Thus, the taxes were void,
as a matter of New Jersey law. Therefore,
all subsequent acts of the municipal, antitrust and county conspirators were
illegal, as a matter of law.
3.
In a 2013 letter to concerned citizens, Dorothy
Kreitz, Wayne Township Tax Assessor, stated that “we have not done a full
revaluation since 1992”. She
also stated that “As you are well aware, the economy had dropped drastically in the
last 4 or five years decreasing the value of real estate properties.” Based on the above admissions by
Dorothy Kreitz, Dr. Stephanatos’ claims that his property was over-assessed are
well founded. Therefore, the taxes
levied onto Dr. Stephanatos’ property were illegal and Dr. Stephanatos did not
owe any money to the municipality. All
the subsequent actions of the conspirators were therefore illegal and they are
subject to the damages they caused the Dr. Stephanatos that they amount to
several million dollars. Dr. Stephanatos
had requested a leave of the Court of Chancery to address the over-valuation of
his property. However, the conspirators (especially
Robert Del Vecchio) lied to Judge McVeigh and assured her that “all issues have
been adjudicated”. Then, Judge McVeigh
relied on the assertions of the conspirators and stated that all issues had
been adjudicated, that Dr. Stephanatos had not paid taxes since 1993 (another
fraud on the grand juroros) and refused to perform any fact finding or any
hearing or any trial to confirm the “facts” upon which the conspirators were
relying. This way, the conspirators
charged Dr. Stephanatos with this impermissible over-assessment AND IN
ADDITION, THEY ALSO CHARGED HIM WITH 18 PERCENT INTEREST RATE ON THESE
OVER-ASSESSMENTS AND ADDITIONAL 6 PERCENT PENALTIES. Thus, a small tax based on the illegal
over-assessment of $20,000 or so end up being $49,000 to 65,000 or so.
4.
By knowingly including an improper (excessive
and/or illegal) amount(s) as a charge asserted in a proof of claim, the lien
holder must be found to have violated section N.J.S.A. 54:5-63.1 of the New Jersey statute on lien
enforcement, and the Appellate Court must respond by disallowing the claim,
avoiding the lien altogether and restoring Dr. Stephanatos to his
residence. Under the Fraudulent Transfer
Act, a transferee is not protected and Dr. Stephanatos should be restored to
his residence with the same speed that McVeigh, the sheriff employees and the
conspirators took it away from him.
5.
Here, I had full equity in my home which was
valued by the Wayne Township for almost $500,000. Judge McVeigh failed to perform a fact
finding and rule of law to determine the significant equity I had in my home
and that based on the above case law cited by the Appellate Division, weighted
heavily on my favor. The alleged taxes
owed (although I disputed the taxes due to overvaluation of the home) were
about $20,000. Judge McVeigh, to justify
her actions stated that I did not pay taxes since 1993, which was not
true. I only disputed the
over-assessment of my property and I did pay all taxes from 1993 through 2005;
then, after my property was damaged by flooding, I paid about 50 percent of the
taxes assessed. In January 2013, Dorothy
Kreitz, the Wayne Township Tax Assessor admitted that the properties are
overvalued and that no assessment has been performed since 1995. These statements were made by Dorothy Kreitz
in a letter to Dr. Stephanatos.
6.
Thus, as in Royal
Tax Lien Services, v. Morodan case, supra, Judge McVeigh failed
to perform any fact finding and statement of the law in violation of NJ Court Rule
1:7-4(a), and instead repeated all the falsehoods of the conspirators: Robert Del Vecchio and American Tax
Funding. Consistent with the decision of
the Appellate Division cited above, I requested that the Chancery Court vacates
its judgment that it issued in May 2011.
However, after issuing a wrongful and void judgment against me for taxes
that I did not owe, Judge McVeigh inappropriately interfered with the
possessory interest I had in my home and place of business and encouraged the
conspirators to force me out of my home and place of business causing over $10
million of dollars in damages.
7.
The question I
have been asking is why this Chancery Judge interfered with my legal rights and
also refused to follow the court rules (1:7-4(a)) and refused to conduct a
factual hearing and refused to uphold my very significant equity rights.
8.
The conspirators and the sheriff employees
admit that they performed such a forceful entry into a residential property in
direct violation of N.J.S.A. 2A:33-1
et seq. Their defense is
that they performed this forceful entry pursuant to a court order. However, no
Warrant for Removal had been issued by a Law Division Judge who had
jurisdiction over the property, as is mandated by the Unlawful Entry and
Detainer state law (see N.J.S.A.
2A:18-57): The ex-parte Writ of
Possession had been issued by a Mercer County Clerk, who had no jurisdiction
over the property, after the fraudulent certification by defendant Del Vecchio
that no persons with possessory interests were present at the residence.
9.
Specifically, for entering and removing a
person from a residential property, N.J.S.A.
2A:18-57 requires that a judgment of possession must be issued by a Law
Division Judge, followed by a Warrant for Removal. State law also mandates that
a notice be provided to the person in possession that s/he has the right to
apply to the court for a stay of execution of the warrant, along with other
notifications. The question again
is: why did Judge Margaret McVeigh
interfered with my possessory rights and encouraged the conspirators to violate
the above stated state laws? The conduct
of this Judge is very much in question, requiring an investigation. I have already suffered $10M in damages and
the violation of many state laws, including Appellate Division decisions by
McVeigh is the sole reason.
THE JUDGMENT WOULD HAVE BEEN
VACATED FOR VIOLATION OF COURT RULE 1:7-4(A) BY THE CHANCERY COURT
Judge McVeigh never
conducted a bench trial to determine the facts consistent with Rule
1:7-4(a). This Court Rule specifically
states:
1:7-4.
Findings by the Court in Non-jury Trials and on Motions
·
(a)
Required Findings. The
court shall, by an opinion or memorandum decision, either written or oral, find
the facts and state its conclusions of law thereon in all actions tried without
a jury, on every motion decided by a written order that is appealable as of
right, and also as required by R. 3:29 The court shall thereupon enter or
direct the entry of the appropriate judgment.
The Appellate Division in the case cited above stated the
following: “It need not be reiterated that
the judge considering the matter must render a decision in compliance with Rule
1:7-4(a). “ ROYAL TAX LIEN SERVICES, LLC, d/b/a CRUSADER LIEN
SERVICES, v. JOSEPH MORODAN and SYLVIA MORODAN, DOCKET NO.
A-6030-12T1, July 3, 2014. Here, Judge McVeigh never conducted any finding of facts and never
stated any conclusion of law in her actions without a jury. Her decisions must be vacated on that ground
as well. She simply relied on the
fraudulent statements of the conspirators and Wayne Township lawyers and
allowed the issuance of a judgment against me without performing a bench trial
or performing any other credible fact finding.
As a result of her errors and omissions in performing her judicial
duties, I have suffered over $10 million dollar in damages. I respectfully submit that an investigation
is in order.
The New Jersey
criminal statutes allow a person to carry a gun in his place of business or
premises.
The New Jersey criminal
statutes allow a person to carry a gun in his place of business or
premises. See 2C:39-6-Exemptions.
e. Nothing in subsections b., c. and d. of N.J.S.2C:39-5 shall be construed to
prevent a person keeping or carrying about his place of business, residence,
premises or other land owned or possessed by him, any firearm..”.
In 2008 in District
of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court
held that the Second Amendment “right of the people to keep and bear arms”
really does refer to the actual people and really does recognize their right to
possess and carry firearms for self-defense, militia use, and hunting. Heller, 554 U.S. at
599. Heller
was followed in 2010 by McDonald
v. City of Chicago, which extended the right to bear arms to states
and localities through the Fourteenth Amendment. 130 S. Ct. 3020, 3026
(2010). The specific law Heller invalidated was a
ban on possession of handguns in the home.
Thus, Dr. Stephanatos has the federally-protected
fundamental right to keep and bear arms inside his home for the protection of
himself, his family and his property.
FALSE
IN ONE - FALSE IN ALL
A TRIAL JUDGE, IN (HIS/HER) DISCRETION, MAY GIVE THIS
CHARGE IN ANY SITUATION IN WHICH (HE/SHE) REASONABLY BELIEVES A JURY MAY FIND A
BASIS FOR ITS APPLICATION - SEE STATE V. ERNST, 32 N.J. 567 (1960)
The following model jury instruction is available to this
Court.
If you believe that
any witness or party willfully or knowingly testified falsely to any material
facts in the case, with intent to deceive you, you may give such weight to his
or her testimony as you may deem it is entitled. You may believe some of it, or
you may, in your discretion, disregard all of it.
See State v. Ernst, 32 N.J. 567, 583 (1960), State
v. D'Illopito, 22 N.J. 318, 324 (1956), State v. Sturchio, 127
N.J.L. 366, 369 (Sup. Ct. 1941), State v. Samuels, 92 N.J.L. 131, 133
(Sup. Ct. 1918). The same charge applies to the civil side. See Lawnton v.
Virginia Stevedoring Co., 50 N.J. Super. 564, 581 (App. Div. 1958), Hargrave
v. Stockloss, 127 N.J.L. 262, 266 (E.&A. 1941), Coleman v. Public
Service Coordinated Transport, 120 N.J.L. 384, 387 (Sup. Ct. 1938). For a
full discussion of the use and application of the maxim, see, Vol. 3A Wigmore
on Evidence (1970) Sec. 1008 et. seq.
Considering that Lucas and D’Agostino have lied about the
events of June 28, 2011 (see the detailed analysis under POINT VII), and have
presented numerous conflicting versions and revisions without even having been
cross-examined by the defense, we believe it is prudent to disregard the
testimony of these two individuals and to dismiss the indictment with prejudice
to avoid further humiliation of the State’s witnesses and/or case.
It would be preferable though to bring in Lucas and
D’Agostino to be cross-examined for potential perjury and civil right violation
charges.
The entire Indictment must be dismissed with prejudice
based on the numerous lies and fabrications and omissions of defenses and other
exculpatory evidence by the State during the grand jury proceedings.
POINT
II
THE
INDICTMENT MUST BE DISMISSED WITH PREJUDICE BECAUSE THE FOUR (4) PLUS YEAR CASE
DELAY DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONALLY-GUARANTEED RIGHT TO A
SPEEDY TRIAL CAUSING HIM SEVERE ECONOMIC AND NON-ECONOMIC HARDSHIP, LOSS OF
EMPLOYMENT AND PROFESSIONAL LICENSES, AND OTHER HARDSHIPS. BARKER V. WINGO, 407 U.S. 514, 530, 92
S. CT. 2182, 2192, 33 L. ED. 101, 117 (1972), STATE V. CAHILL, 213 N.J.
253 (2013), STATE V. JONATHAN E. DOWNS, DOCKET NO. A-0, N.J. SUPERIOR
COURT, APPELLATE DIVISION, FEBRUARY 14, 2014
The
United States Supreme Court in Barker v. Wingo, 407
U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 101, 117 (1972), and the New Jersey
Supreme Court in State v. Cahill, 213 N.J. 253 (2013) (see Exhibit A
for the case syllabus), examined the constitutional right to a speedy trial in
the context of a criminal charge and a DWI charge, respectively. The New Jersey
Supreme Court instructed, “[p]rompt disposition of criminal or quasi-criminal
charges addresses the interest of the accused to be treated fairly … and
prevents prejudice to the accused.” Id. at 276.
Courts
should assess “four non-exclusive factors” to determine if a defendant’s
constitutional speedy trial guarantees have been violated: “length of the delay, reason for the delay, assertion of the right by a defendant,
and prejudice to the defendant” Id.
at 264.; see also State v. Farrell, 320 N.J. Super. 425 (App. Div.
1999); State v. Tsetsekas, 411 N.J. Super. 1 (App. Div. 2009).
The
Length of the Delay
“There
is no set length of time that fixes the point at which delay is excessive.” State
v. Tsetsekas, 411 N.J. Super. at 12. In Cahill, the Court instructed that a
gauge to a “presumptively prejudicial” delay is “the amount of time customarily
required to dispose of similar charges.”
State v. Cahill, 213 N.J. at 265.
The
Cahill Court referred to New Jersey Supreme Court Justice Wilentz’s July 26,
1984 Directive #1-84 instructing that DWI charges be disposed of in 60 days.
Id. at 269. The Court called the 60-day period a goal, not a “bright line
rule.” Id. at 270. However, the Court
said, “90 to 120 days should be the norm for disposing of [DWI] cases.” Id. at
274. The Court further noted that a case that “approaches one year” is
“presumptively prejudicial.” Id. at 265. In Cahill, the Court called the
16-month delay “too long.” Id. at 277. Likewise, in State v. Tsetsekas,
the Court found that 344 days, “more than five times the stated [Supreme Court]
objective” … weighted heavily for the defense. State v. Tsetsekas, 411
N.J. Super. at 11.
Here,
there is already a more than four and a half (4.5) year delay in proceeding
with the case since the June 28, 2011 assault charges. Considering that we are filing a significant
number of substantive motions and we are asking for significant amount of
discovery, it may very well several more years before this case reaches
trial. These enormous delays are
presumptively prejudicial, considering that the defendant is a licensed expert
witness whose reputation has been tarnished by the charges and cannot earn a
living.
The
Reason for the Delay
“Once
a defendant asserts a violation of his right to a speedy trial, the government
is required to identify the reason for the delay.” State v. Cahill, 213
N.J. at 266.
A
deliberate delay is weighted heavily for the defense. Id. The Court explained
however that “[a] more neutral reason, however, such as negligence or a heavy
caseload, will also be weighed against the government … because it is the
government’s ultimate responsibility to prosecute cases in a timely fashion. A defendant does not have an obligation to
assert his right to a speedy trial because he is under no obligation to bring
himself to trial. Id. at 266. Court delays are charged to the State, not to the
Defendant. State v. Farrell, 320 N.J. Super. at 450-451.
Here,
this Court has one of the lightest caseloads that we have seen. Thus, heavy caseload is not the reason for
the delays. This Court took two years to
issue a ruling on a simple motion to change venue; this inexplicable delay is
highly prejudicial considering that the defendant has been asking the Court to
proceed with the case because of the economic and non-economic hardships he is
facing. To no avail. The delays of this Court must be charged to
the State. State v. Farrell, 320
N.J. Super. at 450-451. Thus, there is
not much excuse for the delayed adjudication of the case.
Furthermore,
the defendant has been asking for discovery of some very important evidentiary
information that will assist in his full exoneration of most or all the
charges. Specifically, the defendant has
been asking for copies of video recordings from any cameras on the sheriff
vehicles that arrived at the defendant’s home on June 28, 2011. These videotapes may show that Lucas and
D’Agostino have been lying all this time regarding their location, and
specifically Lucas’ location at the porch in front of the defendant’s
dwelling. Defendant is concerned that
this crucial evidence may have been destroyed by the sheriff, the same way the
yews and rhododendron bushes have already been removed from the property (these
bushes is where Lucas claims he fell, and are crucial in showing to the jury
the actual location of Lucas and that Lucas committed perjury and prepared
false reports). Since the bushes have
been removed, the Defendant will rely on photos he took prior to the incident
on June 28, 2011 to demonstrate to this Court and/or the grand jurors the false
allegations of Lucas and D’Agostino.
In
addition, defendant has been asking for copies of any audiotapes of the
conversations between the sheriff officers at the property on June 28, 2011 and
other officers not located at the property at the time or conversations with
any other sheriff or Passaic County personnel regarding the events of that
date. These audiotapes may show that
Lucas committed perjury and prepared false reports regarding his position at
the dwelling of the defendant, whether he rang the doorbell or not, where he
fell and how, etc. As the Court may
realize, this is absolutely crucial evidence that the sheriff has had plenty of
time to completely destroy.
Finally,
any incident reconstruction will also be beneficial for the defense of the
charges. This was a major event that
made headlines in the printed, online and broadcast media. Thus, it is safe to assume that such
reconstruction investigation is available from the State. Defendant hereby requests that such incident
reconstruction be made available to the defense.
Assertion
of Right
In
Cahill, the Court said, “[a] defendant does not have an obligation to
assert his right to a speedy trial because he is under no obligation to bring
himself to trial.” Id. at 266. The Court explained, “[i]t is the State’s
obligation to prosecute and do so in a manner consistent with defendant’s right
to a speedy trial … Assertion of the right … is not dispositive of the merits
of the claim and is certainly not a pre-condition to the invocation of a
defendant’s right to a speedy trial. Id. at 274.
Here, the defendant has been asserting his right for a
speedy trial from the very beginning of the case four and half years ago,
considering the clearly exculpatory evidence that shows that he never acted the
way Lucas and D’Agostino claimed he did.
I want to remind this Court that more than a year ago (April 2014) I
sent a letter to the Court urging the Court to promptly proceed with the
case. Here is an excerpt from that
letter:
I
also want this Court to realize that we will be filling a significant number of
motions challenging the grand jury proceedings.
We allege that the grand jury proceedings were tainted by fraud on the
court/grand jury, false testimonies, hiding exculpatory evidence from the grand
jurors, refusing to instruct the grand jurors of applicable defenses,
misleading the grand jurors, eliciting false testimonies, and so on. Thus, my concern is that if it takes more
than a year to rule on a motion to change venue, how long will it take to
adjudicate the 25+ motions we have put together for dismissal of the tainted
and/or fraudulently procured indictment?
I have suffered significant economic and non-economic damages and I
continue to suffer significant economic and non-economic damages every day this
case is delayed. I am urging this Court
to read these documents into the record, including my concerns with all the
delays in proceeding with the motions.
In addition to that correspondence, the defendant has
been asking Mr. Feinstein on a weekly basis to move forward with the case on a
speedy basis and to inform the Court that the defendant wanted to exercise his
speedy trial rights.
Therefore, this balancing factor weighs in defendant’s
favor.
Prejudice
In
Cahill, the Court explained that the “minimization of anxiety
attributable to unresolved charges” is one of the interests the speedy trial
right is designed to protect. Id. at 266. “A speedy trial violation can be
established without evidence of prejudice.” Id. at 274 (citing State v.
Farrell, supra., 320 N.J. Super. at 446. The Cahill Court explained,
“every unresolved case carries with it some measure of anxiety.” Id.
“This is particularly true when one of the sanctions [for DWI is] a
license suspension.” Id.
The
court instructed in State v. Farrell, “prejudice to a defendant
resulting from delay is no longer confined to inability to defend on the
merits. Prejudice can also be found from employment interruptions, public
obloquy, anxieties concerning the continued and unresolved prosecution and the
like.” State v. Farrell, 320 N.J. Super. at 452.
Likewise,
the Court in Tsetsakas recognized that “significant prejudice may also
arise when the delay causes the loss of employment or other opportunities,
humiliation, the anxiety in awaiting disposition of the pending charges, the
drain in finances incurred for payment of counsel or expert witness fees and
the other costs and inconveniences far in excess of what would have been
reasonable under more acceptable circumstances. State v. Tsetsekas, 411
N.J. Super. at 13.
Here, I have suffered very significant losses of
employment, as employers performed background checks and refused to hire me,
even after they made employment offers.
In addition, I lost several professional licenses due to the outstanding
charges, leading to further economic losses.
I also have not been able to obtain state licenses (including the
Licensed Site Remediation Professional license) to do professional work because
of the pending, unresolved charges. Several
New Jersey licensing boards even denied me the application to sit for exams,
causing me to lose very significant business and/or employment
opportunities. The net result of these
prolonged delays is multi-million dollar economic damages.
Being a professional expert engineer, I have also
suffered reputation loss that essentially destroyed my carrier that I worked for
many-many years (several decades) to build.
These unresolved (not to mention fraudulent) charges have destroyed me
economically and reputationaly.
Due to these losses and the continued and
unresolved prosecution I suffer from anxiety, humiliation and withdrawal
from social events. Both my personal and
professional life is essentially destroyed by the failed resolution of the
pending wrongful charges.
As was also explained under the section “The Reason for
the Delay”, the long delay has already prejudiced the defendant because the
landscaping at the subject dwelling where Lucas was peering through the side
window has been changed through the removal of the yews and rhododendrons. Furthermore, defendant is prejudiced because
discovery has not even started yet and he is concerned that along with the
bushes, the sheriff may have destroyed videotaped and audiotaped evidence that
is exculpatory to the defendant. These
are some very serious prejudices that hamper the defendant’s defense and they
are the sole creation of the state.
I will briefly report below a state case where the
charges were dismissed because the state failed to provide discovery to the
defendant for 531 days (about 1.45 years).
Here, we did not have any discovery despite the passing of 4.5 years
since the tragic events of June 28, 2011.
STATE
V. JONATHAN E. DOWNS,
DOCKET NO. A-0, N.J. SUPERIOR COURT, APPELLATE DIVISION, FEBRUARY 14, 2014
A
NJ appeals court recently dismissed a DWI charge for the State's failure to
provide discovery to the defendant's attorney for 531 days. The court reasoned
that the defendant's speedy trial rights were violated even though the defense
attorney wasn't "energetic in his demands" for discovery.
531
Days to Turn Over Discovery Violates a NJ DUI Defendant's Speedy Trial Rights
The
New Jersey courts have ruled twice in the last year that DWI defendants are
entitled to the same speedy trial rights that are extended to criminal
defendants. Recently in State v. Downs, an unpublished Appellate
Division decision, the court ruled that the prosecution's failure to provide
defense counsel with DWI discovery for 531 days violated the defendant's speedy
trial rights pursuant to Barker v. Wingo, 407 U.S. 514 (1972),
concluding that the defendant's rights were prejudiced by the State's delay.
The
Downs decision echoes the 2013 case of State v. Cahill, 213 N.J.
253 (2013), where the court dismissed a NJ DWI charge after 16 months had
passed between the date the case was remanded to the municipal court and a
trial date was set. Downs essentially takes the Cahill case a
step further inasmuch as the courts are more or less using a 1 year rule for a
New Jersey drunk driving case to go to trial. If that trial date is delayed for
the State's inaction[s], a speedy trial motion to dismiss may be a viable
outcome for a defendant. What is notable in the Downs and Cahill
decisions is that both of those cases were transferred to the superior court
for review and then later remanded to the appropriate municipal court for
handling. Cases which are transferred from one court to another can face
delays, missing records, and other problems.
NJ
Defense Attorney is Not Obligated to Continually Demand DWI Discovery from
Prosecutor
The
Downs case also touches on an issue which is constantly debated in New Jersey
DWI defenses. What is the obligation of the defendant's lawyer to obtain all
discovery from the prosecutor? The answer is complex. Many courts have their
own methods regarding DUI discovery. Some prefer the request goes directly to
the police records department. Some prosecutors prefer demands are made to
their private law offices. And many New Jersey driving under the influence
cases with blood or urine tests involve multiple law enforcement agencies. It
appears that the defense in Downs made a timely written discovery
request and a follow up phone call as well. The court said that was enough
effort and that there is no need for defendants to "chase down" their
DUI discovery.
Here, the defendant has been asking his lawyers (first
Mr. Carl Herman and later Mr. Miles Feinstein) to proceed with the case on a
speedy trial basis and to ask for the discovery of the audiotapes and video
evidence that will help further exonerate him of all charges and to prove that
Lucas and D’Agostino fabricated their stories and committed perjury during the
grand jury proceedings. His efforts to
move on with the case is well documented in this Court, only to be threatened
with revocation of his bail. If this denial
of speedy trial motion fails, then defendant respectfully submits to this Court
that he has an Ineffective Assistance of Counsel claim, if he discovers that
the audiotapes and/or videotapes have been destroyed or conveniently lost by
the sheriff, the same way the bushes, where Lucas claims he fell, have already
been removed.
POINT
III
THE
INDICTMENT MUST BE DISMISSED WITH PREJUDICE DUE TO PROSECUTORIAL MISCONDUCT AND
AS VIOLATIVE OF DEFENDANT’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND UNDER THE NEW JERSEY CONSTITUTION
AS NO DEFINITIONS AS TO THE GENERAL REQUIREMENTS OF CULPABILITY (DEFINITIONS OF
THE WORDS “PURPOSELY,” “KNOWINGLY,” “RECKLESSLY” AND “NEGLIGENTLY” WERE
PROVIDED TO THE GRAND JURY
Key to this case is the defendant’s state of mind at the
time of the alleged offenses. Count 1 of
the Indictment charges a violation of N.J.S.A. 2C:39-4 which provides:
Any
person who has in his possession any firearm with a purpose to use it
unlawfully against the person or property of another is guilty of a crime of
the second degree. (Emphasis supplied).
Crucial to a violation of this statute is the purpose for
possession of the firearm—said purpose must be unlawful to constitute a
violation. The unlawful purpose element
is all the more relevant in a case such as Stephanatos in which the
defendant legally possessed all of the firearms. Even more significantly, one of the key
defenses in Stephanatos is that the defendant never possessed the
requisite states of mind to sustain any conviction and that the defendant never
intended to cause harm to anyone, other than protecting his dwelling from
intruders and attackers as he is authorized to do so by New Jersey Law, see N.J.S.2C:3-4
and N.J.S.2C:3-6.
Counts 2 and 3 charge that the defendant committed
third-degree aggravated assault by pointing a firearm at Corporal Ron Lucas and
Officer Victor D’Agostino. N.J.S.A. 2C:12-1b(9) provides:
A
person is guilty of aggravated assault if he . . . knowingly, under
circumstances manifesting extreme indifference to the value of human life,
points or displays a firearm, as defined in subsection f. of N.J.S. 2C:39-1, at
or in the direction of a law enforcement officer. (Emphasis supplied).
This charge here has three elements, with one element
requiring the defendant to know that the other party is a law enforcement
officer. Here, the sheriff process
servers testified that they never rang the doorbell, they never announced
themselves. They only stated that they
were wearing uniforms, which means that a party must know that these
individuals are acting as law enforcement officers; however, sheriffs do employ
process servers who are not acting as law enforcement officers. These servers are distinguished by their
light blue uniforms, while law enforcement officers typically wear dark blue or
black uniforms. There are also private security
personnel who also wear uniforms similar to the ones worn by law enforcement or
process servers. The state has not
proved beyond a reasonable doubt that the defendant knew that Lucas and
D’Agostino were in fact sheriff officers who were acting in their duties as law
enforcement officers during the alleged incident.
Count 4 charges that the defendant “did recklessly create
a risk of widespread injury or damage by purposely or knowingly barricading
himself into 687 Indian Road . . . while armed with a deadly weapon, contrary
to the provisions of N.J.S. 2C:17-2c.” (Da4; emphasis supplied).
N.J.S.A. 2C:17-2c provides, in pertinent part:
A person who recklessly creates a risk of widespread
injury or damage commits a crime of the fourth degree, even if no such injury
or damage occurs.
N.J.S.A. 2C:17-2e provides: “For purposes of this
section, widespread injury or damage means serious bodily injury to five or
more people or damage to five or more habitations or to a building which would
normally have contained 25 or more persons at the time of the offense.”
It is important to note here that the defendant’s home is
in a wooded, remote and isolated area of Wayne, New Jersey. There are no homes neighboring to the
north. There is only one home
neighboring to the east (about 50 feet away) where there was only one woman
present. There is another home to the
west (about 100 feet away) where the owners were at work. Thus, this charge is also fraudulent, as less
than five people and less than five habitations were within 100 feet from
defendant’s home.
Count 5 charges
that the defendant:
with purpose to hinder his own apprehension, conviction
or punishment, for the crime of possession of a weapon for unlawful purpose,
did prevent or obstruct by means of force or intimidation Passaic County
Sheriff’s officers, from performing an act which might aid in the discovery or
apprehension or in the lodging of a charge against him, contrary to the
provisions of N.J.S. 2C:29-3b(2). (Emphasis supplied).
N.J.S.A. 2C:29-3b(2) provides:
A person commits an offense if, with
purpose to hinder his own detention, apprehension,
investigation, prosecution, conviction or punishment for an offense or
violation of Title 39 of the Revised Statutes or a violation of chapter 33A of
Title 17 of the Revised Statutes, he . . . [p]revents or obstructs by means of
force or intimidation anyone from performing an act which might aid in his
discovery or apprehension or in the lodging of a charge against him.
These are also fraudulent charges, as at no time did
anybody told the defendant that he is under arrest or that he charged with a
crime. He was on phone with Officer
Celix for quite some time and he never informed the defendant that he was under
arrest or anything to that effect.
This statute further provides that:
An offense under paragraph (3) of subsection b. of this
section is a crime of the second degree.
Otherwise, the offense is a crime of the third degree if the conduct
which the actor knows has been charged or is liable to be charged against him
would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree
if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly person’s
offense.
The defendant Stephanatos is charged with third-degree
hindering apprehension. It should be
noted by this Court, that at no time during the 5-hour ordeal did anyone told
him that he is under arrest for any offense.
This is critical for the disposition of this charge.
The entire Indictment must be dismissed with prejudice as
there is no indication in the grand jury transcript that instructions were
given to the grand jurors as to the definitions of culpability under N.J.S.A.
2C:2-2(b); specifically, “purposely,” “knowingly,” “recklessly,” and
“negligently.” As has been reported
earlier, the defendant was at his computer performing his regular business
during the time of the alleged offenses (see Motion to Change Venue, Records of
calls and e-mails made by the defendant”, Da55-56). An electronic email and telephone record was
available to the prosecutors as they seized the defendant’s computers that
irrefutably showed the whereabouts of the defendant. The irrefutable electronic evidence shows
that the defendant was inside his home and that he was working on his business
or filing appeals. The evidence shows
that he had no intent on injuring anyone, as the prosecutors alleged, but that
he wanted to save his home and business.
His purpose, intent, or behavior to protect his home is absolutely lawful
and state law protects his right to defend his home. This is clearly exculpatory evidence available
to the prosecutors. However, the
prosecutors refused to provide such exculpatory evidence to the grand jurors in
order to secure a bill and also they wanted to punish the defendant by
filing/securing wrong charges to obtain hundreds of thousands of bail money
and/or to incarcerate the defendant.
To reiterate, Count 1 requires an unlawful purpose of the
firearm (protecting one’s home and himself from intruders is not unlawful);
Counts 2 and 3 require “knowingly” pointing the firearm under extreme
indifference circumstances towards individuals who are in fact performing the
duties of a law enforcement officer (protecting one’s home from intruders is
guaranteed by state law; the process servers were not acting as police
officers); Count 4 requires “recklessly” creating a risk of widespread injury
or damage by “purposely or knowingly” barricading himself (here there were
fewer than 5 people and fewer than 2 homes affected, if any); and Count 5
requires the “purpose” to prevent or obstruct (at no time during the 5-hour
ordeal did the state informed the defendant that he committed a crime).
This Court must order the procurement of the SWAT team audio
and video recordings. The recordings
prove beyond any doubt that:
·
I only wanted nobody to enter my home and my
property, as I am authorized to do by New Jersey Law. Only police officers armed with Warrants are
allowed to enter my property and move me out;
however, the sheriff employees Lucas and D’Agostino did not have
Warrants for Removal;
·
I never threatened anyone; I only stated that there will be my own
bloodshed because of the aggressive and unlawful actions of the sheriff
employees.
·
I never pointed any gun at nobody;
·
Officer Celix never told me that I am under
arrest;
·
He never told me that I have committed any
offence;
·
He never said that they have a search or
arrest warrant;
·
The only neighbor was a woman located at
least 50 feet away; the home is in an isolated area of Wayne; in fact, the State witnesses told the grand
jurors that they evacuated just one neighbor.
·
While on the phone, I told the sheriff
officer Celix not to destroy the business equipment and that I was shocked that
they thought it was bomb. In October,
the assistant prosecutor, Peter Roby admitted in open court before the Hon.
Judge Filko that the instrument was not a bomb and that Dr. Stephanatos had
placed it there to be picked up by a vendor, Pines Environmental, Inc. Later, Lucas and D’Agostino changed their
story and claimed that they thought it was a “metal ammunition box”, also a
false assertion.
In addition to numerous fraudulent and misleading
misinformation fed to the grand jurors by the State, three of the four
(“purposely,” “knowingly” and “recklessly”) types of culpability are alleged,
with absolutely no definitions given of these terms. In addition, by failing to instruct the jury
as to “negligently” the grand jury was unfairly precluded from exonerating the
defendant of all charges, for if the grand jurors found that the defendant
acted “negligently” as to each count (as opposed to “purposely,” “knowingly” or
“recklessly”) there would have been a “no-bill.”
The following are the definitions which should have been
given to the grand jurors:
N.J.S.A. 2C:2-2b(1) [Purposely]. A person acts purposely with respect to the
nature of his conduct or a result thereof if it is his conscious object to
engage in conduct of that nature or to cause such a result. A person acts purposely with respect to
attendant circumstances if he is aware of the existence of such circumstances
or he believes or hopes that they exist.
“With purpose,” “designed,” “with design” or equivalent terms have the
same meaning.
N.J.S.A. 2C:2-2b(2) [Knowingly]. A person acts knowingly with respect to the
nature of his conduct or the attendant circumstances if he is aware that his
conduct is of that nature, or that such circumstances exist, or he is aware of
a high probability of their existence. A
person acts knowingly with respect to a result of his conduct if he is aware
that it is practically certain that his conduct will cause such a result.
“Knowing,” “with knowledge” or equivalent terms have the same meaning.
N.J.S.A. 2C:2-2b(3) [Recklessly]. A person acts
recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element
exists or will result from his conduct.
The risk must be of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the circumstances known to him,
its disregard involves a gross deviation from the standard of conduct that a
reasonable person would observe in the actor’s situation. “Recklessness,” “with recklessness” or
equivalent terms have the same meaning.
N.J.S.A. 2C:2-2b(4) [Negligently]. A person acts negligently with respect to a
material element of an offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will result from his
conduct. The risk must be of such a
nature and degree that the actor’s failure to perceive it, considering the
nature and purpose of his conduct and the circumstances known to him, involves
a gross deviation from the standard of care that a reasonable person would
observe in the actor’s situation.
“Negligently” or “negligence” when used in this code, shall refer to the
standard set forth in this section and not to the standards applied in civil
cases.
In Stephanatos, if the grand jurors found that the
defendant acted “knowingly,” “recklessly,” or “negligently” as opposed to
“purposely” as to Counts 1 and 5, then the grand jurors would have had no
choice but to no bill. Similarly, if the
grand jurors found that the defendant acted “recklessly” or “negligently” as
opposed to “knowingly” as to Counts 2 and 3, then the defendant would have been
no billed. If the grand jurors found
that defendant acted “negligently” as opposed to “recklessly” as to the “risk
or widespread injury or damage” in Count 4; or “recklessly” or “negligently” as
opposed to the “purposely or knowingly barricading himself” elements, then he
would have been no billed.
The bottom line is that the failure of the State to
define the crucial requirements of culpability deprived defendant of any
meaningful consideration of each and every element of the charges by the grand
jurors. This is particularly egregious
when the state of mind of the defendant is a key issue as to each charge.
As the Court can also see, we have major problems with
the State evidence that supports each and every element of the alleged
offenses. The totality of the
circumstance show that the sheriff employees were either hallucinating or were
corrupt and fabricated most of the evidence and made unsupported
inferences. In other words, we believe
the State’s case is a bunch of hooey, a bunch of filthy smelling hooey.
THE RELEVANT LAW REGARDING GRAND JURIES
The Fifth Amendment provides that “[n]o person shall be
held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury.”
The purpose of this amendment is to limit the jeopardy of a person to
offenses charged by a group of his fellow citizens acting independently of
either a prosecutor or a judge. Stirone v. United States, 361
U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).
The right to indictment for a criminal offense is
guaranteed by the New Jersey Constitution, article I, section 8, which
guarantees that “[n]o person shall be held to answer for a criminal offense,
unless on the presentment or indictment of a grand jury.” The grand jury has always occupied a high place
as an instrument of justice in our criminal jurisprudence. State v. DelFino,
100 N.J. 154, 164 (1985). It is for the
grand jury to determine whether there is a prima facie case that a crime has
been committed and the accused has committed it. State v. Hogan, 144
N.J. 216, 227 (1996). It is the duty of
the grand jury to bring to trial individuals who are probably guilty and to
clear the innocent of baseless charges. In re Grand Jury Appearance Request
by Loigman, 183 N.J. 133, 138 (2005) (citations omitted). The grand jury “‘stand[s] between the
defendant and the power of the State, protecting the defendant from unfounded
prosecutions.’” Ibid. Article I,
Paragraph 8, “is a constitutional protection that enhances the integrity of the
charging process.” Id. at 139. “[T]he
grand jury’s core purpose is to ‘determine whether the State has established a
prima facie case that a crime has been committed and that the accused has
committed it,’ and it stands as ‘the primary security to the innocent against
hasty, malicious and oppressive persecution.’” State v. Francis, 191
N.J. 571 (2007).
Although the Fifth Amendment’s guarantee of indictment by
grand jury has not been incorporated into the Fourteenth Amendment so as to be
binding on the states (Alexander v. Louisiana, 405 U.S. 625 (1972),
comparable, if not even broader protection is written into the organic law of
New Jersey. See, N.J. Const. of 1947, Art. I, Para. 8. Given the virtually coterminous statements of
the constitutional right to indictment by grand jury, the Courts of New Jersey
“... have interpreted our constitutional guarantee of indictment by a grand
jury, N.J.Const. of 1947, Art. I, Para. 8, in light of federal precedent.” State
v. Murphy, 110 N.J. 20, 29 (1988) (New Jersey Constitution guarantees the
right of a criminal defendant “to have his case considered by an impartial and
unbiased grand jury”). The grand jury
performs two distinct roles—-one is to investigate and present for trial
persons suspected of wrongdoing, while “At the same time–and equally
important–it functions as a shield, standing between the accuser and the
accused, protecting the individual citizen against oppressive and unfounded
government prosecution. See United States v. Calandra, 414 U.S. 338,
342-43, 94 S.Ct. 613, 617-618, 38 L.Ed.2d 561 (1974); Branzburg v. Hayes,
408 U.S. 665, 686-87, 92 S.Ct. 2646, 2659-2660, 33 L.Ed. 626 (1972).
Our New Jersey Supreme Court has consistently recognized
the dual function of the grand jury—charging the guilty but protecting the
innocent from unfounded prosecution. State v. Hogan, supra, 144 N.J. at
228.
The Hogan Court remarked in the opinion that our
courts have not been reluctant to scrutinize grand jury proceedings where the
decision-making process was fundamentally unfair:
We have demonstrated a greater willingness to review
grand jury proceedings where the alleged deficiency in the proceedings affects
the grand jurors’ ability to make an informed decision whether to indict. See Murphy,
supra, 110 N.J. at 35, 538 A.2d 1235 (recognizing general reluctance of courts
to dismiss indictments, but noting that indictment may be dismissed if alleged misconduct
infringes on grand jury’s decision-making function); DelFino, supra, 100
N.J. at 164-65, 495 A.2d 60 (criticizing grand jurors for voting to indict
without having been present at all grand jury sessions, and stating that grand
jurors who vote to indict must be informed of evidence presented at each
session); see also Hart, supra, 139 N.J. Super. At 568-69, 354 A.2d 679
(dismissing indictment because prosecutor improperly encroached on independence
of grand jury by telling some jurors that the initial vote not to indict was
wrong). Id. at 229.
Thus, it is abundantly clear that the right to indictment
before the grand jury implies the right to due process of law and fundamental
fairness before the grand jury. See State v. Engle, 249 N.J. Super. 336,
359 (App. Div. 1991); see also State v. Riley, 242 N.J. Super. 113 (App.
Div. 1990); State v. Gaughran, 260 N.J. Super. 283 (Law Div. 1992); State
v. Porro, 152 N.J. Super. 259 (App. Div. 1977).
Our courts have not been shy about dismissing indictments
where the grand jury process has been fundamentally unfair or the grand jury
process has been tainted. In State v.
Riley, supra, the Appellate Division reversed the trial judge and remanded
to the trial court for an Order dismissing the indictment because the
prosecutor improperly presented defendant’s oral statement to the grand jury
after he had been promised the statement would not be used “in court.”
The Court reversed the trial court and ordered a
dismissal “on principles of fundamental fairness.” Riley, 242 N.J.
Super. At 118. The opinion reasoned that
due process requires the government to fulfill its promise when the government
relies on it to its detriment. The
opinion of Judge Stein cautioned:
Due process requires that the government fulfill its
promise when a defendant relies to his detriment on that promise and cooperates
with the government. Once defendant’s
good faith compliance is established, the State must fulfill its part of the
bargain and its failure to do so constitutes a per se bad faith prosecution.
Id.; Cf. Acosta v. Turner, 666 F.1d 949, 953 (5th Cir. 1982).
The agreement between defendant and the prosecutor
provided that neither defendant’s statement nor any fruits derived from that
statement would be used against him in court. The Warren County Prosecutor’s
Office acknowledged that they had no leads in the case prior to defendant’s
statement. Following defendant’s
statement, law enforcement officials launched an investigation which resulted
in information leading to the arrests and subsequent indictments of the
participants. The prosecutor then
presented defendant’s statement as well as the fruits of that statement to the
grand jury.
We reject the motion judge’s strict construction of the
phrase “in court.” Defendant and his
attorney had every reason to believe that defendant’s statement and the fruits
thereof would not be used in any legal proceeding which could lead him into a
courtroom. Clossom v. State, supra, 784 P.2d at 666 (grand jury
proceeding was “court proceeding” within meaning of immunity agreement;
defendant’s failure to testify before the grand jury violated agreement).
The indictment upon which defendant’s plea was based was
obtained in violation of the agreement.
An indictment should be dismissed on prosecutorial
misconduct grounds where the State’s misconduct “is extreme and clearly
infringes upon the [grand] jury decision-making function,” such that it
“substantially influenced the grand jury’s decision to indict,” or raises
“grave doubt that the determination ultimately reached was arrived at fairly
and impartially.” State v. Hogan, 336 N.J. Super. 319, 339-40 (App. Div.
2001).
In the Appellate Division case of State v. Triestman,
416 N.J. Super. 195 (App. Div. 2010), the Court found that instructions to a
grand jury were sufficiently misleading as to warrant a reversal of defendant’s
convictions and dismissal of the indictment.
In that case, the defendant was charged with fourth-degree criminal
sexual contact for allegedly touching the breast of a co-worker and attempting
to kiss her. At the grand jury, the
prosecutor charged as follows: “b. An actor is guilty of criminal sexual
contact if he commits an act of sexual contact with the victim under any of the
circumstances set forth in Section 2C:14-2c through (4).” Id. at 206. In dismissing the indictment, the Appellate
Division stated:
Needless to say, even had the prosecutor presented the
case against defendant on September 23, 2008, the grand jury could not have
applied the law to the facts. First, the
prosecutor in the above-quoted passage should have referenced “Section
2C:14-2c(1) through 4”, not “Section 2C:14-2c through (4).” Second, the prosecutor never indicated that
she was charging the jury on N.J.S.A. 2C:14-2c at all; she merely
informed the jury that she was charging them on “sexual assault.” Thus, although the jury knew it had been
charged on offenses under N.J.S.A. 2C:14-2, it had no idea which portion
of that charge contained the circumstances that would establish criminal sexual
contact under N.J.S.A. 2C:14-3. Id. at 206-207.
In Stephanatos, the most egregious omission of the
culpability and key elements of the case (the defendant’s state of mind and
belief at the time of the purported offense) mandates dismissal of the
indictment with prejudice.
In the case at bar the indictment must be dismissed with
prejudice due to the outrageous government conduct recounted above and in this
brief, infra.
POINT
IV
THE
ENTIRE INDICTMENT (COUNTS 1, 2, 3, 4, AND 5) MUST BE DISMISSED WITH PREJUDICE AS
VIOLATIVE OF DEFENDANT’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND UNDER THE NEW JERSEY CONSTITUTION AS THE
GRAND JURORS WERE NEVER ADVISED THAT THE DEFENDANT WAS ENTITLED TO SHOW THAT HE
WAS MOTIVATED BY AN HONESTLY HELD (BUT UNREASONABLE) BELIEF
Defendant incorporates by reference the arguments and
authorities in Point III, supra, and submits that the grand jury
instructions are fatally flawed since the grand jurors were never advised that
a defense to Counts 1 through 3 is that the defendant was motivated by an
honestly held but unreasonable belief.
It is the defendant Stephanatos’s position that New
Jersey’s Anti-Eviction Act (N.J.S.A. 2A:18-61.1 et seq.) and New
Jersey’s Foreclosure Fairness Act (N.J.S.A. 2A:50-69 thru 72) were violated by
the State’s actions in this case. Despite
the luck of any fact finding by Judge McVeigh (Judge McVeigh never conducted a
bench trial to determine the facts consistent with Rule 1:7-4(a)), on May 13,
2011, the Mercer County Honorable Mary C. Jacobson, P.J.Ch., entered a final
judgment against defendant in favor of American Tax Funding, LLC (“ATFH”).
(Final Judgment annexed at Da44-46).
This final judgment contains the language “This judgment shall not
affect the rights of any person protected by the New Jersey Tenant
Anti-Eviction Act (N.J.S.A, 2A:18-61.1 et seq.)” (Da45). The significance of this clause is discussed
in this brief, infra. This Court should
understand that in every property, there are two titles: a possessory title and
a legal (ownership) title. The above
judgment (fraudulent or not), only covers the ownership and not possession of a
property. The possession of a property
must be decided under the provisions of the Unlawful Entry and Detainer state
law (see N.J.S.A. 2A:18-57). This is very crucial for the Court to
understand.
Robert A. Del Vecchio is the attorney for the conspirator
ATFH, and he submitted a self-Certification (on an ex-parte basis) (filed May
13, 2011), with the Clerk of Mercer County, stating, in part, that:
The
aforementioned person is not protected by the provision of the Anti-Eviction
Act (the “Act”), as enunciated in the New Jersey Supreme Court Case of Chase
Manhattan Bank v. Josephson, since that Act applies to tenants and this
defendant is the prior owner of the property.
His ownership rights were foreclosed upon in the above-entitled action.
(Da48).
This was an illegal and fraudulent ex-parte certification
by the co-conspirator Robert Del Vecchio, on behalf of his client, ATF or
ATFH. This Court should note that the Chase
Manhattan Bank v. Josephson case refers to mortgage foreclosures and not
tax lien foreclosures, as the Appellate Division in Royal Tax Lien Services, LLC v Morodan has already ruled
that homeowners who hold significant equity into their properties should not
lose their home:
Moreover, if the final judgment stands,
plaintiff will receive property that, according to defendants, is valued at
$650,000 for an approximate $65,000 investment. That is a factor that should
have been taken into account when balancing the equities. See I.E.'s, L.L.C.
v. Simmons, 392 N.J. Super. 520, 537 (Law Div. 2006) (tax sale certificate
foreclosure system can be "Dickensian" where owners hold substantial
equity in property. "Until the Legislature devises a better system, courts
of equity must do their best to balance the equities, taking into account the
necessity of allowing the transfer of clear title and the need to compel the
payment of property taxes against the necessity of ameliorating, in appropriate
circumstances, the onerous impact of the procedure"). Royal
Tax Lien Services, LLC v Morodan,
Appellate Division, Docket No. A-6030-12T1, July 3, 2014.
Mortgage foreclosure cases are lengthy and include trials
and proofs and briefs, i.e., the mortgagee had many opportunities to adjudicate
the issues. There is always a
fact-finding and a legal analysis. So,
due to the extensive fact-finding and legal analysis, in a mortgage foreclosure
case, the defendant loses the title. He
also loses the possession, upon a self-certification by the bank’s lawyer. Here, however, this case was not a mortgage
foreclosure, as Dr. Stephanatos fully owned the almost $500,000-valued
home. There has been no fact-finding and
no trial and no hearing to that effect, absolutely nothing. This was pretty much an ex-parte judgment
where Judge McVeigh relied on the certifications of co-conspirator Robert Del
Vecchio and ATF. To justify her actions,
Judge McVeigh also falsely claimed that the defendant had not paid taxes since
1993- a massively fraudulent assertion that indicates the prejudice that the
defendant faced. Absolutely shocking
behavior.
After the fraudulent self-certification of the co-conspirator
Robert Del Vecchio, Esq., an Eviction Notice (dated May 20, 2011) was sent to
the defendant from Richard H. Berdnik, the Passaic County Sheriff. (Da47).
This Eviction Notice states:
We
have been commanded, by virtue of a Court Order issuing out of the Superior
Court of New Jersey, to VACATE the premises now occupied by yourself and your
family members.
We
hereby inform you that you must VACATE said premises before 9:00 a.m. on June
28, 2011.
Should
you fail to do so, you, your personal belongings and your household furnishings
will be removed IMMEDIATELY on that date.
This
is the only notice you will receive from this office.
If
you vacate voluntarily before the scheduled eviction date, kindly notify the
following immediately:
Robert
A. Del Vecchio, Esq.
P.O.
Box 561
Hawthorne,
NJ 07507. (Da47).
This Court should not that the “Court Order” cited by the
sheriff is the one signed by the Clerk of Mercer County based on the fraudulent
self-certification of Robert Del Vecchio. There was no judge signing that possession
paperwork, just a Clerk of another county!
To this date, no explanation has been provided by the State as to why a
possession issue was signed by a Mercer County Clerk for a property located in
Passaic County and why the possession issue was not adjudicated by a Law
Division Judge in Passaic County as is required by state law. This Court should also note that for entering
and removing a person from a residential property, N.J.S.A. 2A:18-57 requires that a judgment of possession must be
issued by a Law Division Judge, followed by a Warrant for Removal. State law also mandates that a notice be
provided to the person in possession that s/he has the right to apply to the
court for a stay of execution of the warrant, along with other notifications. The co-conspirator Del Vecchio was able to
avoid all that by signing a fraudulent self-certification.
On May 27, 2011, a letter was faxed to the Passaic County
Sheriff (from Carla J. Van Vorst; Co-Owner, Metropolitan Environmental
Services), stating the following:
Dear
Sheriff:
Metropolitan
Environmental Services (Metropolitan) is in receipt of an eviction notice. The notice states that there are no tenants
on the property. There must be some
mistake, as we have been a tenant on this property since circa 1993. It is obvious that a wrongful certification
has been provided to the sheriff’s office and we are asking that punish (sic)
the wrongdoer. Furthermore, Mr. Basil
Stephanatos informed us that there are two pending appeals on the matter. The docketed appeals are: A-00003900-10 and
A-003898-10T4. You cannot possibly
proceed with any eviction notice, unless and until the appeals are processed by
the Appellate Division. Mr. Stephanatos
indicated that he will file a complaint against ATF with the U.S. District
Court in Newark very-very soon.
He
also indicated that Senator O’Toole and the Governor and Attorney General’s
office are investigating these obviously criminal activities by American Tax
Funding.
Sincerely,
Carla
J. Van Vorst
Co-Owner
METROPOLITAN
ENVIRONMENTAL SERVICES
687
Indian Road
Wayne,
New Jersey 07470-4923 (Da50).
Despite this correspondence, the sheriff has been
insisting that he never received that correspondence indicating that appeals
are pending.
The Passaic County (Evictions Dept.) sent a letter to
Carla J. Van Vorst (dated May 31, 2011) stating:
Our
office is in receipt of your fax (copy following). Please be aware that Sheriff takes direction
from either Plaintiff Attorney or the Court (judge).
This
eviction is to proceed as scheduled on June 28, 2011 9 am unless we are
directed by either Plaintiff Attorney or Court otherwise. Also, you state in
your fax that the eviction notice says “there are no tenants on the property”;
this is not true. The notice states
“NOTE: THIS EVICTION NOTICE DOES NOT APPLY TO TENANTS”. If you are, in fact, a TENANT, the eviction
notice does not pertain to you. Sheriff
does not evict tenants. That is a matter
you would need to take up with the Plaintiff Attorney. (Da52).
Based on that letter, Dr. Stephanatos was left assured
that the eviction will not move forward and he will be allowed to stay at the
property while appeals are pending.
In addition to these two appeals, in June 2011, Dr.
Stephanatos had also filed a suit to vacate the tax deed (Passaic County, Law
Division L-2973-11). Dr. Stephanatos
even sent a letter to the judges, to the co-conspirators Robert Del Vecchio,
Matthew Marini and the sheriff that appeals are pending and they in fact
responded to the letter, acknowledging the appeals.
Defendant Stephanatos submits that the Passaic County
Sheriff’s Department had no right to remove him from his house since there was
a tenant (Metropolitan Environmental Services) in the house and appeals were
pending. Defendant submits that,
contrary to the Certification of Robert A. Del Vecchio (Da48-49) there was, in
fact, a tenant in the premises as confirmed by the letter to the Sheriff dated
May 27, 2011, advising that there are tenants on the property. (Da50-51) and
that Dr. Stephanatos had no possessory rights.
As this Court hopefully understands, no possessory rights were ever
determined in this case.
The defendant’s legal rights under the Anti-Eviction Act
were violated with the procurement from the Clerk of Mercer County of an
ex-parte writ of possession through the misrepresentations of Del Vecchio that
there were no tenants present in the premises (and that the defendant “is not
protected by the provisions of the Anti-Eviction Act.” (Da48). For entering and removing a person from a
residential property, N.J.S.A.
2A:18-57 requires that a judgment of possession must be issued by a Law
Division Judge, followed by a Warrant for Removal. State law also mandates that
a notice be provided to the person in possession that s/he has the right to apply
to the court for a stay of execution of the warrant, along with other
notifications. Nothing like that
happened here, and all these long-standing New Jersey laws that are meant to
protect tenants were not applied by the conspirators and the sheriff.
The Tax Sale Law only addresses title to a property AND
NOT POSSESSION. The possession is a law
division matter, and not an equitable matter.
Judge McVeigh had no power or authority to interfere with the possession
of Dr. Stephanatos’ residence. Yet she
did, anyway. The Forceful Entry and
Detainer statutes clearly state that the matter of possession of residential
property must go before a Law Division Judge.
Thus, since the eviction order was not signed by a Law Division judge
sitting in Passaic County, it was void ab initio and had no power or
effect. What the sheriff (and the
conspirators) did was absolutely illegal.
As explained infra, the defendant was entitled to have
the grand jurors advised that an honestly held (though unreasonable) belief is
a defense to all of the charges.
In State v. Williams, 168 N.J. 323 (2001), the New
Jersey Supreme Court reversed the defendant’s conviction for second-degree
possession of a weapon for an unlawful purpose since the defendant was entitled
to show that he was motivated by an honestly held but unreasonable belief that
force was required to protect his wife, and the trial court committed plain
error by failing to give an unrequested instruction that even if the jury found
that defendant’s explanation to be unreasonable, it nevertheless had to
consider whether he honestly believed that force was necessary. The Williams Court reached the conclusion
that the jury instructions in that case did not adequately define what specific
unlawful purpose, if any, defendant harbored when he shot at the victim.
As explained in State v. Harmon, 104 N.J. 189 at
205 (1985): “Thus one may at once be guilty of an aggravated assault through
pointing a weapon at another yet be innocent of possession of the weapon for an
unlawful purpose.” (Citing State v. Mieles, 199 N.J. Super. 29 (App.
Div.) certif. denied, 101 N.J. 265 (1985).
As explained in Williams, supra, “Just as lawful use of a weapon
will not necessarily legitimate prior possession for an illegal purpose,
illegal use of a weapon alone does not establish the necessary mental element
under that statute. At 340. “The issue
of unlawful possession turns on ‘the purpose for which defendant possessed the
gun and not how he used it.’” State v. Blanks, 313 N.J. Super. 55, 73
(App. Div. 1998) (quoting Mieles, supra, 199 N.J. at 41 (emphasis in
original). As further explained in
Williams, “Where, as here, the original possession was indisputably lawful, the
court has a special obligation to relate the alleged unlawful purpose to the
evidence. Id. at 341, citing State v. Villar, 150 N.J. 503 (1997).
Defendant Stephanatos submits that the prosecutor before
the grand jury had the same duty to present the exculpatory defense that if
defendant was motivated by an honest (though unreasonable) belief (and any
exculpatory evidence as to such), then he was entitled to a no bill under the
law.
Our case law has made clear that under certain
circumstances there is a prosecutorial duty to present exculpatory evidence to
a grand jury. In State v. Gaughran,
supra, a trial court dismissed an indictment where a prosecutor failed to
present exculpatory medical evidence directly contradicting a complainant’s
testimony in a sexual assault case. The
opinion noted there was no issue as to the sufficiency of the evidence before
the grand jury, but rather whether the failure to present exculpatory evidence
“stripped the Grand Jury of its function to protect the innocent from unfounded
prosecution.” Gaughran, 260 N.J. Super. at 287. In State v. Hogan, supra, our Supreme
Court held that there is a prosecutorial duty to present exculpatory evidence
under circumstances where it directly negates guilt. Hogan, 144 N.J. at
237.
Consistent with that rationale that an indictment should
be dismissed when vital exculpatory evidence is kept from the grand jury are
the cases which have held that an indictment must be dismissed if a prosecutor
encroaches on the independence or integrity of the grand jury. See State v.
Hart, 139 N.J. Super. 565 (App. Div. 1976) (an indictment was dismissed
because an assistant prosecutor improperly voiced his opinion to the grand jury
that their initial vote not to indict was wrong and the grand jury subsequently
chose to indict); see also State v. Butterfoss, 234 N.J. Super. 230 (Law
Div. 198) (kidnapping charge was dismissed by Assignment Judge Martin Haines
because improper comments by the prosecutor about the kidnapping charges
interfered with the integrity of the system).
The criminal conspirators who hired the sheriff
officers (Del Vecchio/ATF) failed to
apply to a Law Division Judge to obtain a Warrant for Removal as is mandated by
state law (see N.J.S.A. 2A:42-10.1). Instead, Del Vecchio and ATF fraudulently
self-certified to a Clerk in Mercer County that Dr. Stephanatos had no
possessory interests protected by the Anti-Eviction Act, by claiming to the
clerk of the Mercer County Court that this was a mortgage foreclosure case
(which was not- it was a tax lien case).
By this fraudulent self-certification, he obtained from the Clerk of
Mercer County (not from a judge) a Writ of Possession. Note that should he went to a Law Division
Judge and obtained the required Writ of Removal, there would have been a
hearing and I would be able to assert the defense of more than 3-years of
possession. These individuals knew that
Dr. Stephanatos would not allow anyone onto his property without his consent
and they failed to follow the procedures mandated by state law, i.e. the forceful
entry and detainer statutes under N.J.S.A.
2A:39-1 Unlawful entry prohibited.
Under
New Jersey law, persons in lawful possession of a residential property have a
recognized property interest. Also, the right to own and possess property is
guaranteed by Article I, par. 1 of the State Constitution.
Furthermore, Dr. Stephanatos had full equity into his home and had filed a
timely lawsuit in the Law Division to Vacate the Tax Deed, Case # L-2973-11, after Judge McVeigh told him to
file a new suit in the Law Division since Judge Riva did not hear the prior
suit in 2010. At the same time, Dr.
Stephanatos also filed for a stay of the proceedings. I believe that these are the reasons for the
conspirators acting in haste and fraud and criminal intend in removing me from
my residence and place of business without following the Forceful Entry and
Detainer statutes: the Law Division
would have found in my favor as a matter of law and they acted quickly by
circumventing the New Jersey Forceful Entry law.
Meanwhile, Dr.
Stephanatos also filed two appeals: one from the L-2672-09 case and one from
the F-9241-09 case. The appeals were
docketed as follows: A-4685-10
and A-3900-10 (appeal from L-2672-09) Team 4.
At the same time, Dr. Stephanatos applied for a stay from the
foreclosure judgment, to ensure that a higher court and/or a federal court hear
his appeals.
In
addition, Dr. Stephanatos had a home-based business in the premises
(Metropolitan Environmental Services).
Finally, the Dr. Stephanatos expected that Governor Christie and Senator
O’Toole would intervene and stop the illegal actions of the conspirators. Also, The New Jersey Appellate decision would
have vacated a judgment issued by a Chancery Judge on the basis that the
Chancery Judge failed to weigh the significant equity of the homeowner and
failed to perform fact finding and determine the applicable law. See Royal
Tax Lien Services, LLC v Morodan, Appellate Division, Docket No. A-6030-12T1,
July 3, 2014. Thus, Dr. Stephanatos had a
recognized possessory property interest for Fourth, Fifth and Fourteenth
Amendment purposes. The conspirators
working in concert, deprived Dr. Stephanatos of his personal, business and real
estate property, valued at millions of dollars.
Conclusion
In the case sub judice, the State knew defendant’s
intentions and the reasons for his actions, which were documented extensively
and should have been presented for the Grand Jury’s consideration. In fact, defendant had full equity into his
home, state law protected him (see Royal Tax Lien Servs., LLC V. Morodan,
Docket No. A-6030-12T1 (N.J. Super. App. Div. Jul 03, 2014), I.E.'s, L.L.C. v.
Simmons, 392 N.J. Super. 520, 537 (Law Div. 2006), Ronan v. Adely, 182
N.J. 103, 110-11 (2004); Cameco, Inc. v. Gedicke, 157 N.J. 504, 509-10
(1999); Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 562-63
(App. Div.), certif. denied, 200 N.J. 476 (2009)) and he had filed appeals to
overturn the fraudulently-obtained judgment of possession.
The indictment must be dismissed with prejudice due to
the outrageous government conduct recounted above.
POINT
V
THE
ENTIRE INDICTMENT MUST BE DISMISSED WITH PREJUDICE AS THE STATE NEVER
INSTRUCTED THE GRAND JURORS AS TO THE APPLICABLE DEFENSES OF IGNORANCE OR
MISTAKE OR DURESS OR ENTRAPMENT
Defendant incorporates by reference the arguments and
authorities supra and submits that the entire indictment must be dismissed with
prejudice as the grand jurors were never advised as to the applicable defenses
of ignorance or mistake or duress or entrapment.
Right to Introduction of Defenses or
Justifications
An accused is also entitled to have a valid defense or
justification presented to the Grand Jury where it exonerates the accused. This
obligation does not, however, impose a
duty on the prosecutor to investigate or cultivate every potential defense or
justification for a felony offense for which indictment is being sought. Defenses which must to disclosed to the Grand
Jury are those that clearly tend to establish innocence.
If the jurors were misinformed, for example, about
applicable defenses to the charges, their finding of sufficient cause to indict
would be undermined.
It is the defendant’s position that the Passaic County
Sheriff never had any valid eviction order for the residential property of the
defendant as such an order must be signed by a Law Division Judge (see New
Jersey’s Anti-Eviction Act; N.J.S.A. 2A:18-16.1 et seq.) and New Jersey’s
Foreclosure Fairness Act, P.L. 2009, c. 296, N.J.S.A. 2A:50-69 thru 72).
The sheriff admits and Lucas and D’Agostino testified
during the grand jury proceedings that they performed a forceful entry into a
residential property in direct violation of the forceful entry and detainer
laws of this state, N.J.S.A. 2A:18-57 et
seq. Their defense is
that they performed this forceful entry pursuant to a court order. However, no Warrant for Removal had been
issued by a Law Division Judge who had jurisdiction over the property, as is
mandated by the Unlawful Entry and Detainer state law (see N.J.S.A. 2A:18-57): The
ex-parte Writ of Possession had been issued by a Mercer County Clerk, who had
no jurisdiction over the property, after the fraudulent ex-parte certification
by conspirator Del Vecchio, Esq (working for co-conspirator American Tax
Funding, LLC (“ATF”)) that no persons with possessory interests were present at
the residence. These sheriff employees
also testified that Dr. Stephanatos had stated
“I am not going anywhere”.
Therefore, it is irrefutable that the sheriff knew that
he had to obtain a Warrant for Removal but he failed to do so. The sheriff decided to forcibly evict Dr.
Stephanatos in violation of state law, and the motive of the sheriff must be
questioned, as the sheriff was paid thousands of dollars by the conspirators
ATF and Robert Del Vecchio to perform these illegal acts. During the grand jury proceedings, Lucas and
D’Agostino lied to the jury when they said that they were merely trying to
deliver eviction papers. Yet, they end
up removing Dr. Stephanatos from his residence anyway, in violation of the Unlawful
Entry and Detainer state law (see N.J.S.A.
2A:18-57).
The conspirators knew that the above law and
other state statutes protect Plaintiff’s right to remain in actual possession
of his residence. Specifically, N.J.S.A. 2A:39-7 says that
title shall not be an issue since Plaintiff was in continuous possession of his
residence for 16 years. N.J.S.A. 2A:39-7 Title not inquired into; defense of 3 years
possession. Title shall not be an
issue in any action commenced under this chapter. 3 years peaceable possession
by the defendant shall be a defense to the action.
The grand jurors were never informed of these crucial
facts.
Accordingly, the Sheriff’s officers were unlawfully and
wrongfully trying to and, in fact, did unlawfully evict the defendant form his
residence.
In addition, the defendant (who has a J.D. degree),
believed that under Payton v. New York, 445 U.S. 573 (1980), a suspect
should not be arrested in his house without an arrest warrant (in spite of
probable cause to arrest him). This
United States Supreme Court decision was the reason that defendant did not get
out of his home, as he was never shown a valid arrest warrant. Furthermore, at no time did anyone informed
the defendant that he is under arrest.
He was on the phone for a long time with officer Celix, but he never
once stated that Dr. Stephanatos has committed any crime and that he is under
arrest. Thus the charges of hindering
apprehension are absolutely fraudulent.
In State v. Miller, 342 N.J. Super. 474 (App. Div.
2001), the Court made clear the separate distinctions between an arrest warrant
and a search warrant. See id. at 488, citing Steagald v. United States,
451 U.S. 204, 212-13 (1981):
While an arrest warrant and a search warrant both serve
to subject the probable-cause determination of the police to judicial review,
the interests protected by the two warrants differ. An arrest warrant is issued by a magistrate
upon a showing that probable cause exists to believe that the subject of the
warrant has committed an offense and thus the warrant primarily serves to protect
an individual from an unreasonable seizure.
A search warrant, in contrast, is issued upon a showing of probable
cause to believe that the legitimate object of a search is located in a
particular place, and therefore safeguards an individual’s interest in the
privacy of his home and possessions against the unjustified intrusion of the
police. Id.
Given the clear
legal distinctions between an arrest warrant and a search warrant, the fact
that the Sheriff’s Officers later obtained a search warrant does not provide
any justification for the defendant’s arrest.
N.J.S. 2C:2-4 [Ignorance or mistake] provides:
a. Ignorance or mistake as to a matter of fact or law is
a defense if the defendant reasonably arrived at the conclusion underlying the
mistake and:
It negatives the culpable mental state required to
establish the offense; or
The law provides that the state of mind established by
such ignorance or mistake constitutes a defense.
Although ignorance or mistake would otherwise afford a
defense to the offense charged, the defense is not available if the defendant
would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or
mistake of the defendant shall reduce the grade and degree of the offense of
which he may be convicted to those of the offense of which he would be guilty
had the situation been as he supposed.
c. A belief that conduct does not legally constitute an
offense is a defense to a prosecution for that offense based upon such conduct
when:
The statute defining the offense is not known to the
actor and has not been published or otherwise reasonably made available prior
to the conduct alleged, or
The actor acts in reasonable reliance upon an official
statement of the law, afterward determined to be invalid or erroneous,
contained in (1) a statute, (b) judicial decision, opinion, judgment, or rule,
(c) an administrative order or grant of permission, or (d) an official
interpretation of the public officer or body charged by law with responsibility
for the interpretation, administration or enforcement of the law defining the
offense; or
The actor otherwise diligently pursues all means
available to ascertain the meaning and application of the offense to his
conduct and honestly and in good faith concludes his conduct is not an offense
in circumstances in which a law-abiding and prudent person would also so
conclude.
The defendant must prove a defense arising under
subsection c. of this section by clear and convincing evidence.
As explained by the New Jersey Supreme Court in State
v. Sexton, 160 N.J. 93 (1999), if recklessness is required as an element of
the offense, a mistake that is merely negligent or faultless maybe asserted as
a defense. The Sexton Court explained
that the New Jersey Code of Criminal Justice provides that no person shall be
guilty of an offense unless the person “acted purposely, knowingly, recklessly
or negligently, as the law may require, with respect to each material element
of the offense.” N.J.S. 2C:2-2a. An
example of how a mistake of fact may negate culpability is explained in Sexton:
[I]f a person is ignorant or mistaken as to a matter of
fact . . . the person’s ignorance or mistake will, in appropriate
circumstances, prevent the person from having the requisite culpability with
respect to the fact . . . as it actually exists. For example, a person who is mistaken (either
reasonably, negligently, or recklessly) as to which one of a number of similar
umbrellas on a rack is the person’s and who takes another’s umbrella should be
afforded a defense to a charge of theft predicated on either intentionally or
knowingly taking the property of another . . . A reckless mistake would afford
a defense to a charge requiring intent or knowledge-but not to an offense which
required only recklessness or negligence.
Similarly, a negligent mistake would afford a defense to a charge
predicated on intent, knowledge, or recklessness-but not to an offense based on
negligence. State v. Cavness, 80 Hawai’i 460, 911 P.2d 95, 99-100 (Ct.
App. 1996). Sexton, supra, 160
N.J. at 101.
In Sexton, supra, the defendant was convicted of
reckless manslaughter as a lesser-included offense of murder, and unlawful
possession of a handgun without a permit.
The defendant’s claim at trial was that he believed the gun was not
loaded when he pointed it at the victim.
The defense claimed the gun went off accidentally and killed the
victim. The Appellate Division reversed
on several grounds, including that the trial court should have charged the jury
that the State bore the burden of disproving beyond a reasonable doubt
defendant’s mistake-of-fact defense, and that the failure to do so was plain
error. supra, 160 N.J. at 97. The
Supreme Court in Sexton affirmed the Appellate Division’s reversal, and held
that the defendant’s alleged mistaken belief that the gun he fired at the
victim was not loaded related to whether the state had failed to prove an
essential element beyond a reasonable doubt. Id. at 107.
In State v. Burke, 362 N.J. Super. 55 (App. Div.),
certif. denied, 178 N.J. 374 (2003), the
Appellate Division vacated a conviction under N.J.S.A. 2C:18-3c (the so-called
“peeping Tom” provision) due to an insufficiency of the evidence. The Burke Court cited State v. Livingston,
172 N.J. 209 (2002), which explained that “[I]n criminal cases we are guided by
the rule of lenity, which requires us to construe penal statutes strictly and
interpret ambiguous language in favor of the criminal defendant.” The Appellate
Division concluded “that N.J.S.A. 2C:18-3c requires that the prohibited
“peering into” be from a location outside, and into, the “window or other
opening of a dwelling or other structure adapted for overnight
accommodations[.]” Id. at 60. Since the
State’s proofs could not establish that essential element of the offense, the
conviction had to be vacated. Id.
THE LAW CONCERNING SUFFICIENCY OF THE EVIDENCE BEFORE THE
GRAND JURY
The grand jury must be presented with sufficient evidence
and legal instructions to determine whether an indictment is warranted, State
v. Morrison, 188 N.J. 2, 12, 20 (2006).
A grand jury is “charged with the two-fold responsibility of bringing
the guilty to trial while protecting the innocent from unfounded
prosecution.” Murphy, supra, 110
N.J. at 29. It is not a “rubber stamp”
or “play-toy” for the prosecutor. State
v. Gaughran, 260 N.J. Super. 283, 290 (Law Div. 1992) (quoting State v.
Engel, 249 N.J. Super. 336, 359 (App. Div. 1991)). It is therefore “essential that the jurors be
informed of the relevant facts,” ibid., and be given adequate legal
instructions concerning the charging options available, and the elements of
those charges, Morrison, supra, 188 N.J. at 12, 20.
Although an indictment is presumed to be valid, “a
defendant with substantial grounds for having an indictment dismissed should
not be compelled to go to trial to prove the insufficiency.” State v.
Graziani, 60 N.J. Super. 1, 22 (App. Div. 1959), aff’d, 31 N.J. 538 (1960);
State v. Kline, 277 N.J. Super. 623, 626 (Law Div. 1994); State v.
Hill, 166 N.J. Super. 224, 229 (Law Div. 1978), rev’d on other grounds, 170
N.J. Super. 485 (App. Div. 1979). Thus,
a trial court should not hesitate to exercise its discretion to dismiss an
indictment where there are clear, plain grounds to believe that it is
manifestly deficient or palpably defective because it is: (1) facially deficient, State v. Wein,
80 N.J. 491, 497 (1979); (2) not supported by sufficient evidence, Morrison,
supra, 188 N.J. at 12; or (3) the product of prosecutorial misconduct clearly
infringing upon or subverting the grand jury’s decision-making process, Murphy,
supra, 110 N.J. at 35. An indictment
should be dismissed as facially deficient “if it fails to charge an offense,”
by failing to charge “‘all of the critical facts and each of the essential
elements which constitute the offense alleged.’” State v. Bennett, 194 N.J. Super. 231,
234 (App. Div. 1984) (quoting Wein, supra, 80 N.J. at 497). An indictment should be dismissed for lack of
sufficient evidence if the grand jury was not presented “with at least some
evidence as to each element of a prima facie case.” Ibid. (internal quotation
marks omitted).
DEFENSE OF DURESS
Right
to Introduction of Defenses or Justifications
An
accused is also entitled to have a valid defense or justification presented to
the Grand Jury where it exonerates the accused. This obligation does not,
however, impose a duty on the prosecutor to investigate or cultivate every
potential defense or justification for a felony offense for which indictment is
being sought. Defenses which must to
disclosed to the Grand Jury are those that clearly tend to establish innocence.
Here, we believe that the defense of
duress should have been presented to the grand jury.
N.J.S.A. 2C:2-9
provides that it is an affirmative defense to a charge where the actor engaged
in the conduct because he was coerced to do so by the use of, or threat to use,
unlawful force against his person or that of another. The standard is
objective, i.e., whether a person of reasonable firmness in the accused’s
situation would have been unable to resist. State v. Toscano, 74 N.J.
421, 443 (1977). While the accused’s “situation” excludes the idiosyncrasies of
the individual’s temperament, it permits the jury to consider his “attributes,”
such as the accused’s age, health, etc. Id. Elements to consider in assessing
the viability of the defense include the nature of the threat, its immediacy
and gravity; the seriousness of the crime committed; the identity of the person
endangered; the possibility of escape or resistance; and the opportunity to
avoid the act by seeking official assistance. Id.
According to the New Jersey’s Model Jury Instructions for
NJSA 2C:2-9, “The State has the burden to disprove, beyond a reasonable doubt,
the defense of duress. “
Note: there is no question that I tried to talk to
the authorities to ask them to intervene to prevent the sheriff from entering
the home. I even called the Wayne Police,
as the phone record shows. No person who
allegedly tried to assault a sheriff employee would ask help from the
government entities and even the police.
DEFENSE OF ENTRAPMENT (SEE N.J.S.A. 2C:2-12)
Right
to Introduction of Defenses or Justifications
An
accused is also entitled to have a valid defense or justification presented to
the Grand Jury where it exonerates the accused. This obligation does not,
however, impose a duty on the prosecutor to investigate or cultivate every
potential defense or justification for a felony offense for which indictment is
being sought. Defenses which must to
disclosed to the Grand Jury are those that clearly tend to establish innocence.
Here, we believe that the defense of
entrapment should have been presented to the grand jury.
The model jury instructions
regarding the defense of entrapment have the following:
The law does not authorize a law enforcement officer
whether by himself/herself or through an agent or informant, or together with
others to trap another person by inducing or encouraging him/her to commit an
offense and then as a direct result of that inducement or encouragement, cause
that other person to commit an offense.
The
defendant must prove by a preponderance of evidence that he/she was induced or
encouraged to commit the offense by the law enforcement officers (the officer's
agent or informant, or others) or knowing false representations which by their
very nature created a substantial risk that the crime would be committed by an
average person who was NOT otherwise ready to commit it.
In addition, the defendant must prove that the police
conduct in fact caused him/her to commit the crime; in other words, that the
crime was a direct result of the police action.
There is no dispute here that
but for the actions of the sheriff employees, the incident on June 28, 2011
would not have occurred. The sheriff
employees did not have a Warrant for Removal and were not legally authorized to
forcibly remove him from his dwelling and place of business – they did it
anyway, by sending several officers that day to remove him. It was these actions of the sheriff employees
that created the situation and not the defendant. This is undisputable and requires a dismissal
of all the charges with prejudice and the restoration of the defendant’s good
name, reputation, business, property (or equivalent property) and lost income
and expenses.
A. Statutory Entrapment
There were two forms of entrapment under common law.
Subjective entrapment existed when police planted a criminal plan in the mind
of an innocent person who otherwise would not have committed the crime, in
order to institute a criminal prosecution against the person. Subjective
entrapment takes into consideration the predisposition of the defendant to
commit the crime. Subjective entrapment protects the unwary innocent but not
the unwary criminal. State v. Johnson, 127 N.J. 458, 464 (1992); State
v. Rockholt, 96 N.J. 570, 576 (1984).
Here, it is unquestionable that but for the illegal acts of the sheriff
employees (lack of Warrant for Removal), no incident would have ever
happened. The grand jurors would have
most likely find that the defendant was entrapped by the sheriff employees.
Objective entrapment existed when police conduct caused
an average law-abiding citizen to commit a crime or when police conduct was so
egregious as to impugn the integrity of the court that permitted the
conviction. Although the predisposition
of the defendant to commit the crime was not totally irrelevant, the focus of
objective entrapment was the wrongfulness of police conduct. State v.
Johnson, 127 N.J. 458, 464 (1992); State v. Molnar, 81 N.J. 475, 484
(1986); State v. Talbot, 71 N.J. 160, 168 (1976).
The Code encompasses the subjective and objective
elements of common-law entrapment. The Code requires an analysis of the
interrelation between defendant’s predisposition and the police conduct and a
determination of which caused the commission of the crime. To constitute
entrapment, police conduct must involve 1) “methods of persuasion or
inducement” that 2) create “a substantial risk” of the commission of a crime 3)
by a person not otherwise “ready to commit” the crime. N.J.S.A. 2C:2-12a(2). Here, it is unquestionable that but for the
illegal acts of the sheriff employees (lack of Warrant for Removal), no
incident would have ever happened. The
grand jurors would have most likely find that the defendant was entrapped by
the sheriff employees.
B. Due Process Entrapment
Due process entrapment exists when “the conduct of
government is patently wrongful in that it constitutes an abuse of lawful
power, perverts the proper role of government, and offends principles of fundamental
fairness.” Due process entrapment “centers around two major concerns: the
justification for the police in targeting and investigating the defendant as a
criminal suspect; and the nature and extent of the government’s actual
involvement in bringing about the crime.”
Traditional objective entrapment may apply to a defendant
predisposed to commit the crime as due process entrapment, thus the principles
of objective entrapment are relevant to an inquiry into due process entrapment.
State v. Johnson, 127 N.J. 458, 473-75 (1992).
C. Procedural Issues and Burden of Proof
Defendant must prove both the objective and subjective
aspects of statutory entrapment by a preponderance of the evidence. N.J.S.A.
2C:2-12b; State v. Rockholt, 96 N.J. 570, 577, 581 (1984). The
existence of statutory entrapment is determined by the trier of fact. Id. at
577. Regarding due process entrapment, the defendant has the burden of coming
forth with evidence to support the defense, which the State must then disprove
by clear and convincing evidence. The existence of due process entrapment is a
question of law to be resolved by the court. State v. Florez, 134 N.J.
570, 584, 590-91 (1994).
A defendant’s denial of the commission of a crime does
not preclude assertion of an entrapment defense. Mathews v. United States,
485 U.S. 58, 108 S.Ct. 883, 90153 L. Ed. 2d 54 (1988); State v. Branam,
161 N.J. Super. 53 (App. Div. 1978), aff’d o.b., 79 N.J. 301 (1979).
None of these defenses were ever presented to the grand
jurors.
In the case at bar the indictment must be dismissed with
prejudice due to the outrageous government conduct recounted above.
POINT
VI
THE
ENTIRE INDICTMENT MUST BE DISMISSED WITH PREJUDICE AS THE STATE NEVER INSTRUCTED
THE GRAND JURORS AS TO THE NEW JERSEY SELF-DEFENSE LAW CONSIDERING THAT THE
CONSPIRATORS AND/OR LUCAS AND D’AGOSTINO DID NOT OBTAIN A WARRANT FOR REMOVAL
AS IS REQUIRED BY NEW JERSEY’S UNLAWFUL ENTRY LAW
Defendant incorporates by reference the arguments and
authorities supra and submits that, even if the grand jury testimony of
Officers Lucas and D’Agostino (that defendant had a gun pointed at them) is
believed (which is unbelievable, based on the analysis and images presented
under POINT VII), the defendant was allowed to possess the legally-owned
weapon(s) and to use it to defend himself and his property from intruders and
individuals who peer through his window as a means of constructive authority
and/or against individuals who perform an unlawful entry and detainer or
removal. As this defense was not
provided to the grand jurors, the indictment must be dismissed with prejudice.
One exception to the duty to retreat (N.J.S.A.
2C:3-4b(2)(b)), if the actor is in his or her own home at the time of the
attack (the so-called “castle doctrine”). See State v. Gartland, 149
N.J. 456, 467 (1997). N.J.S.A.
2C:3-4b(2)(b)(i) provides that: “The actor is not obligated to retreat from his
dwelling, unless he was the initial aggressor.”
There is no question here that the defendant was attacked
inside his own home (the porch is considered a part of the dwelling) as Lucas
was illegally peering inside his dwelling from the front side window and Lucas
and several other sheriff employees came to illegally evict him on June 28,
2011 without first obtaining a Warrant for Removal from a Law Division Judge as
is mandated by New Jersey’s unlawful entry law.
The New Jersey’s unlawful entry law prohibits unlawful entry or
detainer.
ACTIONS FOR UNLAWFUL ENTRY OR DETAINER
N.J.S.A. 2A:39-1 Unlawful entry
prohibited. No person shall enter upon or into any real property or
estate therein and detain and hold the same, except where entry is given by
law, and then only in a peaceable manner. With regard to any real property
occupied solely as a residence by the party in possession, such entry shall
not be made in any manner without the consent of the party in possession unless
the entry and detention is made pursuant to legal process as set out in
N.J.S.2A:18-53 et seq., as amended and supplemented
ACTIONS FOR UNLAWFUL ENTRY OR
DETAINER 2A:39-8. Recovery of damages and possession of
property; treble damages in lieu of possession. In any action under this chapter, a plaintiff
recovering judgment shall be entitled to possession of the real property and
shall recover all damages proximately caused by the unlawful entry and detainer
including court costs and reasonable attorney's fees. When a return
to possession would be an inappropriate remedy, treble damages shall be awarded
in lieu thereof. The judgment may be enforced against either party in a
summary manner by any process necessary to secure complete compliance
therewith, including the payment of the costs.
Here, the State has already admitted in November 2011
before the Hon. Judge Filko that no Warrant for Removal had been obtained by
the sheriff in violation of New Jersey Law.
See N.J.S.2A:18-53 et seq.
The defendants knew that the above law and
other state statutes protect Plaintiff’s right to remain in actual possession
of his residence. Specifically, N.J.S.A. 2A:39-7 says that
title shall not be an issue since Plaintiff was in continuous possession of his
residence for 16 years.
N.J.S.A.
2A:39-7 Title not inquired into; defense of 3 years possession. Title shall not be an issue in any action
commenced under this chapter. 3 years peaceable possession by the defendant
shall be a defense to the action.
Defendant, having just obtained a J.D. law degree at the
time (June 2011), knew that only through a removal action before a Law Division
judge could the sheriff remove him. That
is the reason he kept his doors closed and locked with deadbolts AT ALL TIMES. The defendant also knew that the sheriff
employees are in fact hired by the conspirators and they act as agents of the
conspirator and not necessarily an agent of the state. Lucas admitted in his testimony that he was
hired by conspirator Robert Del Vecchio.
Sheriff records obtained through discovery also show that the sheriff
was paid several thousand dollars for the services they performed for the
conspirators ATF, Robert Del Vecchio, and others.
N.J.S.A. 2C:3-4(c) provides special rules for the use of force,
constructive authority or deadly force on an intruder into one’s dwelling:
Notwithstanding
the provisions of N.J.S. 2C:3-5, N.J.S. 2C:3-9, or this section, the use of
force or deadly force upon or toward an intruder who is unlawfully in a
dwelling is justifiable when the actor reasonably believes that the force is
immediately necessary for the purpose of protecting himself or other persons in
the dwelling against the use of unlawful force by the intruder on the present
occasion.
As explained in Gartland, supra, “under this
provision, deadly force may be used against an intruder to counter any level of
unlawful force threatened by the intruder.”
Id. In Gartland, the defendant wife (Ellen
Gartland) was subjected to “seventeen years of spousal abuse” including
physical and emotional abuse. The
Supreme Court reversed the wife’s manslaughter conviction for shot gunning her
husband. The Court’s ruling led to a
Senate bill that provides that the duty to retreat by a person attacked in the
person’s home is eliminated in all cases except if the person instigated the
altercation.
In State v. Bilek, 308 N.J. Super. 1 (App. Div.
1998), the Appellate Division held that a self-defense jury charge was
misleading and probably led to an unjust conviction for fourth degree
aggravated assault. The Appellate
Division reversed and remanded the conviction on the ground that the jury
instruction was flawed in that it did not advise the jury that the level of
force used to defend need not be proportionate to unlawful force. Additionally,
the jury should have been expressly told that pointing a loaded firearm is
“force” to which defense of one’s dwelling may apply. (emphasis added). As explained by the Appellate Division in Bilek,
“the general charge seems to require a reasonable belief that the defendant is
faced with actual or threatened death or serious bodily injury. A lesser degree of threat justifies force in
defending one’s dwelling under N.J.S.A. 2C:3-4(c), that is to say, only the
threat of “personal injury” is necessary. N.J.S.A. 2C:3-4(c)(2)(a). Id. at
11.
As further explained by the Bilek Court:
Additionally, and perhaps most critically, the general
instruction emphasizes the proportionality of the force used to self-defend
against the aggressor’s unlawful force. Defense of one’s home pursuant to N.J.S.A.
2C:3-4(c) is quite distinct, and does not require such proportionality.
(emphasis added). State v. Gartland, supra, 149 N.J. at 467, 694
A.2d 564 (“N.J.S.A. 2C:3-4(c) provides special rules for the use of deadly
force on an intruder into one’s dwelling.
For example, under this provision, deadly force may be used against an
intruder to counter any level of unlawful force threatened by the
intruder.”). It is clear to us that the
critical questions for the jury to resolve were whether the Lapas were the
aggressors and what “force” defendant reasonably perceived himself to be
confronted by. The notion of
disproportionality should have had no role in this consideration, yet the jury
charge most certainly does not make that clear.
Indeed, it is quite to the contrary. Id. at 12 (emphasis supplied).
Significantly to Stephanatos, the Bilek
Court also found that the doorway or entranceway of one’s dwelling is part of
the “dwelling” for purposes of the statute addressing the right to defend one’s
own dwelling. Id. at 11. See State v. Bonano, 59 N.J. 515, 520 (1971); State
v. Martinez, 229 N.J. Super. 593 (App. Div. 1989). In other words, the porch where these two
heavily armed individuals claim they were assaulted is considered a part of the
dwelling.
A number of facts prove that the sheriff employees came
onto defendant’s property to illegally remove him from his dwelling and place
of business:
Fact #1: The sheriff leaves an eviction notice at the
dwelling of the defendant. The defendant
or his representative/co-tenant then sends a fax giving notice to the sheriff
for receipt of the eviction note and notifying the sheriff of criminal acts by
Robert Del Vecchio and pending appeals.
Sheriff acknowledges the fax and sends a fax to the defendant stating
that the sheriff will remove the defendant on June 28, 2011. See Motion to Change
Venue.
Fact #2: The sheriff fails or refuses to obtain a
Warrant of Removal as is mandated by New Jersey’s Unlawful Entry Laws. This fact was confirmed in November 2011 by
the State in a hearing before Judge Filko.
In fact, the very first thing that Judge Filko asked the State was:
Q: (Judge
Filko): “did the sheriff had a Warrant for Removal?”.
A:
(Peter Roby): “No, Your Honor.”
Then Judge Filko shook his
head, realizing that the sheriff may have committed an illegal act. At a later hearing before Judge McGeady in
Bergen County Court (to address a criminal complaint against the conspirators),
the Hon. Judge McGeady also shook his head when he heard that the sheriff
failed to obtain a Warrant for Removal.
The Judge then asked at least two times: “Are you sure that they did not obtain a
Warrant for Removal?”. I responded,
“Yes, Your Honor. The State has already
admitted that before Judge Filko.”
Thus, it is obvious that
competent judges are aware of the state law that must be followed in cases of
residential entries. That raises the
competency and role of Chancery Judge Margaret McVeigh, and it will be
addressed in another section.
Fact #3: Lucas testified before the grand jury that he
knew that the defendant had said “I am not going anywhere”. So, in his own words, this individual knew
that he cannot enter the defendant’s home unless and until he obtains a
law-mandated Warrant for Removal, as he was not going anywhere. Only armed with a Warrant for Removal could
the sheriff enter defendant’s home and forcibly remove him. Should he have a Warrant, then the defendant
could not have objected to his entry. But,
Lucas never obtained such a Warrant and listened to Robert Del Vecchio (acting
as his agent) to go to the defendant’s home and forcibly remove him; which he
did.
Fact #4: Lucas tried to convince the grand jurors that
he was only serving papers and that he was not trying to forcibly and illegally
remove the defendant from the dwelling.
Of course this is another Lucas lie, another Lucas fabrication, because
there were several sheriff officers dispatched that day to the property, making
it very clear that these individuals went there to forcibly remove the
defendant in violation of the unlawful entry laws of this state. The defendant had already received the
eviction papers, there was no need to serve the very same papers. The Court should take note of the continued
lies and fabrications of Lucas and the other sheriff employees.
This Court should also note
that the Passaic County’s Sheriff Webpages indicate that
“The Sheriff’s duties are to
act as the agent for the Plaintiff”.
In the book entitled the
“Duties and Liabilities of the Sheriffs”, by Ottis Allen, 1845, page 143, it is
stated that
“The sheriff is considered
the pro hac vice agent of the Plaintiff” – “for only this
occasion”.
Thus, according to long-established law, the sheriff’s
officers were acting as the agent for the conspirators ATF or Robert Del
Vecchio and not as law enforcement officers (i.e., they were not acting as
agents of the state for the detection, investigation or apprehension of
crime. See 2C:25-19 - Definitions
"Law
enforcement officer" means a person whose public duties include the power
to act as an officer for the detection, apprehension, arrest and conviction of
offenders against the laws of this State.
Here, the duties of Lucas and D’Agostino were not to work
as police officers but as a process servers.
Furthermore, the Passaic County Sheriff (being a law enforcement agency
that employs both law enforcement and non-law enforcement staff) has a number
of divisions, including process server division, law enforcement division, K-9
division and administrative division.
Lucas and D’Agostino did not belong to the law enforcement division, but
they worked for the process server division.
In fact, the sheriff admitted so in a fax sent to the defendant where
the sheriff stated that he “only takes instructions from the plaintiff’s
lawyer”, proving that they were not working necessarily for the state but for
the conspirators Robert Del Vecchio and ATF.
To summarize the law
regarding force against intruders, subsection c (effective May 15, 1987)
provides a separate rule for the use of force, including deadly force against
intruders. Since the sheriff employees
failed to secure a law-mandated Warrant for Removal (a fact that has been
already admitted in open Court by Peter Roby), they were in fact intruders and
trespassers onto Dr. Stephanatos’ dwelling and property, with the intent to
perform a Forceful Entry and Forceful Removal in violation of New Jersey Law. The peering through the side window by Lucas are
also criminal acts and the homeowner has the right to defend his dwelling,
asking the intruder to leave his/her property.
Peering into dwelling places, is a crime that has been committed
by the sheriff and county employees as they did not have a law-mandated Warrant
for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited), and
were trespassing on defendant’s property and peering through his residential
window(s). See 2C:18-3. Unlicensed entry
of structures; defiant trespasser; peering into dwelling places.
This rule does not replace the justification found in
subsections a and b, it merely adds another justification where the particular
requirements are met. The justification
requires that the actor be lawfully in a dwelling and using force against an
intruder, a person who is actually unlawfully in the dwelling. It further requires either: (1) that the
actor reasonably believes that the force is necessary to protect against
unlawful force by the intruder or (2) that the circumstances set out in
paragraph c(2) are met; (c)(2) provides: “A reasonable belief exists when the
actor, to protect himself or a third person, was in his own dwelling at the
time of the offense or was privileged to be thereon and the encounter between
the actor and intruder was sudden and unexpected, compelling the actor to act
instantly”. See Senate Judiciary Statement,
October 2, 1986 to Assembly Comm. Sub. For A. 498, 323 and 297.
It should be noted that unlike most other provisions of
Chapter 3, this provision does not limit the use of deadly force to responses
to danger of a similar level of force. See e.g. 2C:3-4b(2). Under this subsection, deadly force can be
used against an intruder based on a reasonable belief that the intruder is
about to use unlawful force (c(10)) or inflict personal injury (c(2)(a)) and
can also be used if the intruder, after demand that he withdraw, disarm or
surrender, fails to do so. (c(2)(b)). The only time that the defendant could not ask
the sheriff employees to leave his dwelling is if they had a Warrant for
Removal, which is not the case here, as these potentially corrupt sheriff
employees acted as agents for the conspirator Robert Del Vecchio and violated a
number of state laws (peering into dwelling, unlawful entry and detainer,
failure to obtain Warrant for Removal, etc.).
CREATION,
BY USE OF EXCESSIVE FORCE, OF A SITUATION IN WHICH LATER JUSTIFIABLE FORCE IS
USED IS ACTIONABLE
A
classic Fourth Amendment (see also N.J. Const. (1947), Art. I, Par. 7) violation
is stated by showing that officers used excessive force in creating the
situation which caused a person to take the actions he did. When police create
a situation in which their own actions cause them to use excessive force in
response to force used by another person, then the police may be held liable
for their use of responsive force even if, taken alone, their second use of
force was justified. Use of excessive force which provokes a response of force
and results in an additional, responsive use of police force is actionable. Alexander
v. City and County of San Francisco, 29 F.3d 1355, 1366 (9th Cir.1994),
cert. denied, 513 U.S. 1083, 115 S.Ct. 735, 130 L.Ed. 2d 638 (1995); Reynolds
v. County of San Diego, 84 F.3d 1162, 1169 (9th Cir.1996) (quoting Alexander
v. City and County of San Francisco, 29 F.3d 1355, 1366 (9th Cir. 1994),
cert. denied, 513 U.S. 1083, 115 S.Ct. 735, 130 L.Ed.2d 638 [19951).
THE GRAND JURORS SHOULD HAVE ALSO BEEN
INSTRUCTED ON THE USE OF CONSTRUCTIVE AUTHORITY
The
grand jurors should have also been instructed on the use of constructive
authority to exert control over a subject and not to necessarily injure the
subject.
DEFINITIONS
A. Constructive Authority
1. Constructive authority does not involve actual
physical contact with the subject, but involves the use of the law enforcement
officer’s authority to exert control over a subject.
Similar
constructive authority can be used by a homeowner to protect his home from
intruders or possible intruders. It
involves the upholstering of a weapon as a show of deterrent against intruders,
the same way armed guards are displaying their weapons to discourage intruders.
2. Examples include verbal commands, gestures, warnings,
and upholstering a weapon.
3. Pointing a firearm at a subject is an element of
constructive authority to be used only in appropriate situations.
D. Exhibiting a Firearm
A law enforcement officer shall not unholster or exhibit
a firearm except under any of the following circumstances:
a.
For maintenance of the firearm;
b.
To secure the firearm;
c.
During training exercises, practice or
qualification with the firearm;
d.
When circumstances create a reasonable belief
that it may be necessary for the officer to use the firearm;
e.
When circumstances create a reasonable belief
that display of a firearm as an element of constructive authority helps
establish or maintain control in a potentially dangerous situation in an effort
to discourage resistance and ensure officer safety.
Here, the grand jurors should have been instructed that upholstering
or pointing of a weapon can be used by a homeowner in self-defense when intruders
are trying to enter or are at his dwelling without a lawful purpose or without
having a Warrant for Removal. The grand
jurors should have also been instructed that the homeowner does not necessarily
intends to use the weapon against a subject intruder or another threat, but it
might be intended to exercise control over the situation, and prevent the
breaking into a home or discourage and send intruders away from his/her
property.
Here, such constructive authority would have been
applicable, especially since the officers were both armed and trained to shoot
to kill (there is ample record during the last few years that sheriff and
police officers shoot to kill people in their back and then plant evidence,
lying in court, use excessive force, etc.) and were trying to illegally evict the
defendant without possessing a law-mandated Warrant for Removal signed by a Law
Division Judge; in other words, the sheriff officers were trying to commit an
illegal act in violation of state law, and were illegally peering through the
side window of a dwelling in violation of state criminal law, despite having
notice that they are not allowed to do so at the property and without first applying
to a Law Division Judge to obtain a Warrant for Removal.
In State v. Morrison, 188 N.J. 19-20, (2006), the
Supreme Court of New Jersey performed its “fact-sensitive
analysis based on the totality of the circumstances”, concluded that
the evidence supporting the element of distribution was insufficient, and
reinstated the Law Division’s dismissal of the indictment.
Here, the defendant has presented irrefutable evidence (emails
and phone records), showing that he was conducting his home-based business
during June 28, 2011, as he has been doing for many years. He was also communicating with the
legislature, the governor, the U.S. Attorney office, the FBI and the courts, as
he has been doing for several years. The
totality of the circumstances analysis shows that he never had any intent to
cause injury to anyone, other than protecting his home from unlawful intruders
(armed agents peering through his windows, armed agents intending on removing
him by force without the requisite Warrants, and so on) to prevent from braking
into his home.
Furthermore, it is absolutely lawful to carry a gun
inside your home or business or premises that you occupy. See 2C:39-6-Exemptions. e. Nothing
in subsections b., c. and d. of N.J.S.2C:39-5 shall be construed to prevent a
person keeping or carrying about his place of business, residence, premises or
other land owned or possessed by him, any firearm..”.
In summary, the state failed to instruct the grand jury
of defendant’s right to carry a gun inside his home or business or premises
that he occupies and his right to defend his home from intruders or attackers. The state also never instructed the grand jury
that the sheriff did not have a Warrant for Removal issued by a Law Division
Judge and were in fact intruders who were intending on unlawfully removing the
defendant from his home on June 28, 2011, and were peering unlawfully through
defendant’s windows in violation of New Jersey law. The state should have instructed the grand
jurors that defendant had the right to defend himself and/or his dwelling
and/or business from such threats and intrusions. Finally, the State should have instructed the
grand jurors on the use of constructive authority to establish or maintain
control in a potentially dangerous situation in an effort to discourage breaking
into his home or discourage resistance and ensure his safety.
Now we know that the conspirators ATF, Robert Del
Vecchio, and others hired the sheriff and committed fraud on the court and
enforced an unlawful removal from a residential property and a place of
business, while lying to the grand jurors about pretty much everything as the
next section details.
The indictment must be dismissed with prejudice due to
the outrageous government conduct recounted above.
POINT
VII
THE
ENTIRE INDICTMENT MUST BE DISMISSED WITH PREJUDICE DUE TO THE USE OF PERJURED
TESTIMONY AND FALSE, FABRICATED OR FRAUDULENT EVIDENCE TO MISLEAD THE JURORS
AND TO OBTAIN THE INDICTMENT
Defendant incorporates by reference that arguments and
authorities in Points I through VI, supra, and submits that Sheriff’s Officers
Lucas and D’Agostino both lied before the grand jury, i.e., they committed
perjury, a criminal offense. We are
asking this Court or the Attorney General to charge these individuals with
perjury after we prove their lies and fabrications in an evidentiary hearing.
Between their investigation reports and the grand jury
testimony, Lucas and D’Agostino have presented at least seven (7)
different scenarios of what happened during the morning of June 28, 2011. That is, seven (7) different scenarios they
present on their own words (either written or spoken), without even being cross
examined by the defense. Can this Court
imagine what will happen if Dr. Stephanatos or his defense counsel is allowed
to cross-examine these lying individuals?
We can guarantee to this Court that there will be some very significant
Perry Mason moments and we are asking that we are allowed to cross-examine them; the right to confront the accusers is a fundamental
right guaranteed by the Sixth Amendment to the Federal and New Jersey Constitution. The Confrontation Clause of the Sixth
Amendment to the United States Constitution provides that "in all criminal
prosecutions, the accused shall enjoy the right…to be confronted with the
witnesses against him." Generally, the right is to have a face-to-face
confrontation with witnesses who are offering testimonial evidence against the
accused in the form of cross-examination during a trial. The Fourteenth
Amendment makes the right to confrontation applicable to the states and not
just the federal government.
General overview of Dr. Stephanatos’ former
dwelling that was seized by the conspirators.
Photo taken from the front of the property, two weeks prior to the
tragic incidents of June 28, 2011. Note
the philodendron subincisum planter at the front of the porch area. Lucas went behind the philodendron subincisum
planter and placed his face at the side window so that he can see inside the
home. This is a criminal activity prohibited under 2C:18-3. Unlicensed entry of structures; defiant
trespasser; peering into dwelling places and in violation of the Fourth
Amendment to the U.S. Constitution and N.J. Const. (1947), Art.
I, Par. 7. Lucas then went behind the rhododendron
bushes where he claimed that he fell and injured his shoulder. These facts, including the location of Lucas,
prove beyond any doubt that Lucas was illegally peering and searching inside a
dwelling without having a Warrant for Removal (see N.J.S.A. 2A:39-1 Unlawful entry prohibited). He then later claimed that he was just coming
up the steps and he was assaulted at about 8:50 am, despite the fact that
electronic records obtained from Dr. Stephanatos business computer showed that
he was sending emails to his business clients as of 8:55 am and earlier. Lucas also claimed that a Pelican scientific
case used by vendors of Dr. Stephanatos’ business was a metal ammunition box, a
fraudulent assertion that has been refuted before Judge Filko by Prosecutor
Peter Robby. Lucas also claimed
that he saw a “shotgun”, but no “shotgun” was ever found.
Lucas Lie #1
Specifically, both officers lied when they testified that
the defendant had his front door open and his storm door shut and that they
were able to see the defendant pointing a gun at them through the glass storm
door. (Lucas testified to this at GJT10-24 to 11-12; Da7; D’Agostino testified
to this at GJT16-1 to 17; Da10).
It is the defendant’s contention that he had the front
door (and all other doors) closed and locked with a deadbolt. He had placed a business sign in the front
door (see image below) so that the Sheriff’s Officers would see that there was
a tenant on the premises and that they could not proceed with the illegal
removal without a Warrant for Removal obtained from a Law Division Judge in
compliance with the Unlawful Entry and Detainer Laws of this state. See N.J.S.A.
2A:39-1 Unlawful entry prohibited.
Had defendant left the door open, they would not have been able to see
the business sign.
It makes no sense that I would keep the front door open
for the sheriff to come in, when in fact I did not want anybody to come inside
my home while the appeals were pending in the appellate courts and there was a lawsuit
in the Law Division to vacate the tax deed. These two deputies are
obviously lying to cover their criminal activities. Having a JD Degree, I knew that if a leave a
door open, I am actually inviting the sheriff to enter my home; the same result
is if I answer the door. That is why I
did not answer the door (in fact, I very rarely if ever answer the front door). I would never do such a thing.
Furthermore, the sheriff post-incident reports all show
that my back door was locked with deadbolt, my garage was locked with deadbolt,
and my car was also locked. Who locks
his car inside a locked garage, and who places deadbolts in garage? Well, a person like Dr. Stephanatos who knew
the law and knew that he needed to prevent everybody from coming inside his
home, especially that day, until the Appellate Courts adjudicate the case. Dr. Stephanatos also knew that what Robert
Del Vecchio and ATF were doing was illegal and that they took advantage of the
sheriff and the lack of competence or heavy caseload of Chancery Judge McVeigh.
Lucas Lie #2
During the grand jury proceedings, Lucas also lied to the
jurors when he said that he was only trying to serve process papers. This is an obvious fabrication, a terrible
lie, as he also testified that several officers were dispatched during that day
in two sheriff vehicles with the specific intend to forcefully remove Dr.
Stephanatos without obtaining a Warrant for Removal from a Law Division
Judge. The process papers he referred to
had already been delivered to Dr. Stephanatos.
How come several officers are now attempting to re-deliver the same papers? This makes no sense, as it is a lie, a
perjury committed by Lucas.
View of the front door of Dr.
Stephanatos’ dwelling at 687 Indian Road, Wayne, New Jersey. Photo taken from the front of the property,
two months after the tragic incidents of June 28, 2011. Note the significant sun glare, making it
impossible to see inside the home during the morning hours. The philodendron subincisum planter at the
front of the porch area has been removed, as the conspirators emptied Dr.
Stephanatos’ home from all his belongings.
After nobody answered the door at 8:50-8:55 AM on June 28, 2011, and because
of the sun glare, Lucas went behind the philodendron subincisum planter and
placed his face at the side window so that he can see inside the home. This is a criminal activity prohibited under 2C:18-3. Unlicensed entry of structures;
defiant trespasser; peering into dwelling places. It is also an illegal search prohibited by
the Fourth Amendment to the U.S. Constitution and N.J. Const. (1947), Art. I,
Par. 7. Lucas then went behind the yew
and rhododendron bushes where he claimed that he fell and injured his
shoulder. These facts prove beyond any
doubt that Lucas was illegally peering and searching inside a dwelling without
having a Warrant for Removal (see N.J.S.A.
2A:39-1 Unlawful entry prohibited). Lying Lucas then later claimed that he was
just coming up the steps and he was assaulted.
Lying Lucas also claimed that a Pelican scientific case used by vendors
of Dr. Stephanatos’ business was a bomb; when no bomb was found he claimed that
he thought it was a “metal ammunition box”, a fraudulent assertion that has
been refuted before Judge Filko by Prosecutor Peter Roby. Lying Lucas also claimed that he saw a “shotgun”. This is what was reported to the other
officers and to the media. The media
published and televised reports show that Lying Lucas claimed that there was a
“shotgun”. No “shotgun” was ever found
(because it only exists in the imagination of Lying Lucas). Lucas then changed his story and after he saw
the defendant’s lawful guns, he claimed that he saw a rifle, instead.
Lucas Lie #3
In addition, I have irrefutable evidence (email and phone
logs) showing that I was either on the computer doing business work or calling
the state officials right at the time that these sheriff’s deputies claim that
they saw me through an open front door. For example, Lucas testified that he arrived
at the property at 8:50 am. There is an
electronic record provided in the Appendix to Motion to Change Venue that shows
that Dr. Stephanatos sent an e-mail to one of his clients at 8:55 am. This
irrefutable evidence proves beyond any doubt, that Dr. Stephanatos was
at his office computer at the back of the house (about 50-feet away from the
front door) doing his normal daily business.
Thus Dr. Stephanatos has an irrefutable alibi to refute the false
statements of these two corrupt individuals who claim that at around 8:50 to 8:55
am they saw him pointing a gun at them as they were walking up the front porch
steps.
Another reason that the front doors were both closed is
the following: I have window-mounted air
conditioning units. I would take the air conditioning units off the
window around mid-September and I would install them around Memorial Day (end
of May). When I install the air conditioning units, then I keep all the
doors and the windows closed, so that I do not lose energy.
Yet another reason I always keep the doors closed is that
my home office is located at the back of the dwelling and I cannot hear very
well what is happening at the front of the home. Since the home is located in a rather
isolated, wooded area of Wayne, it has been burglarized before. Thus, the lack of hearing and the fear of burglary
had made me keep the doors locked at all times- all doors, in fact: back doors,
front doors, and garage doors. Besides,
I very rarely used the front doors, as the garage entrance is located closer to
the back door entrance. So, I almost
never used the front doors. That is
another reason that Lucas and D’Agostino committed perjury when they said that
I left the front door open. The computer
electronic record was in the possession of the State before the grand jury
proceedings; however, the corrupt prosecutor Walter Dewey refused to give it to
the jury and of course refused to allow me to testify.
Lucas Lie #4
Dr. Stephanatos also requests this Court to take judicial
notice of the fact that a box taken by the Passaic County employees from Dr.
Stephanatos’ residence was a business instrument (a so-called Pelican case used
for transporting sensitive business equipment) and not a “metal ammunition box”
as the Passaic County employees have been misleading the grand jury and the
courts and the public, damaging Dr. Stephanatos reputation. It is obvious that these two crooked
individuals wanted to give the false impression to the grand jurors that Dr.
Stephanatos had pre-planned an assault and he had stockpiled ammunition in a
metal box. This was highly prejudicial
fabrication by the corrupt Passaic County prosecutors. Of course, who would place a metal ammunition
box at his front steps, leave the front door open for the sheriff to come
inside his home to illegally remove him, and then go back 50 feet away from the
door to his back office and start writing emails and doing business for his
clients? Nobody; certainly not Dr. Stephanatos
who is a highly educated individual who holds BS/MS/PhD Degrees in engineering
and a J.D. Degree as well and has served as expert engineer for many years. These are all lies and fabrications of Lucas
and D’Agostino and the Passaic County corrupt prosecutors.
Of course we now know that these were fraudulent and
perjured statements by Lucas and D’Agostino.
The State has admitted before Judge Filko, that the alleged “metal
ammunition box” was a rental instrument contained inside a plastic protective
case (called Pelican case) to be picked up by a vendor of Dr. Stephanatos’
business, Pine Environmental, Inc. the morning of June 28, 2011. The Passaic County prosecutor, Peter Roby,
has already admitted in open court before Judge Filko that it was a rental
instrument for Dr. Stephanatos’ business- however, the prosecutor during the
grand jury proceedings said to the grand jurors that the two lying and corrupt
Sheriff Officers (Lucas and D’Agostino) thought that the business instrument
was “a metal ammunition box”, giving the impression to the grand jurors that I
was prepared for a battle and I had a metal ammunition box at my front porch. (Of course these are insane assertions by
these two crooked deputies, as this was a plastic box and not a metal box and
only an insane moron or a crooked “officer of the law” would mistake it for a
metal ammunition box - please see the
sample images below to see the significant differences between an ammunition
box and a Pelican case). In fact, in
November 2011, when Dr. Stephanatos was allowed to get back his seized business
computers, he was told by the sheriff employee doing the paperwork that the
sheriff did not know what the Pelican case was. Imagine, if these two crooks lied about the
Pelican case, what else have they lied about? – Well, they pretty much lied
just about everything. We demand a full
investigation into their corrupt and perjured testimony, as these two liars
have caused the events of June 28, 2011 through their incompetence and lying
and fabrications and perjured testimonies and false reports.
Typical
metal and plastic ammunition boxes. Note
the significant difference between these boxes and the Pelican case shown
below.
This
image shows a typical Pelican case used to ship scientific instruments similar
to the one seized from Dr. Stephanatos’ front porch. The State has already admitted on the record in
open court before Judge Filko that the Pelican case had been placed at the
porch to be picked up by the vendor, Pines Environmental, Inc. on the morning
of June 28, 2011. The State lied to the
grand jurors and told them that they believed it was a bomb or a metal
ammunition box and that is one of the reasons they believed they were facing a
dangerous person in Dr. Stephanatos.
What a bunch of liers and losers.
Of course later, in November 2011 before Judge Filko, Mr.
Peter Roby, a Passaic County prosecutor, admitted that the business instrument
was not an ammunition box and he did confirm that he talked to Pine
Environmental, Inc and did confirm to him that their employee (the Pine
Environmental driver) was due to come and pick up the instrument that morning
from Dr. Stephanatos’ front porch (this is where I would typically place the various
rental instruments for pickup and delivery).
Again, none of these facts made it to the grand jury, in a clear attempt
by Peter Roby and his associates (such as Water Dewey who made the presentation
to the grand jury) to mislead and lie to the grand jury so that the jurors
believe that somehow Dr. Stephanatos left an illegal or dangerous device at his
front porch. What a bunch of liars these
prosecutors and sheriff deputies are.
The indictment must be dismissed with prejudice, based on these lies and
fabrications and omissions of crucial facts by the State and Passaic County
employees so that they mislead and prejudice the grand jury against Dr.
Stephanatos. In fact Dr. Stephanatos’
lawyer, Mr. Carl Herman, had met and also sent a confirmatory letter to the
Passaic County prosecutors (see Exhibit B for a copy of the letter send to the
State) to allow me to testify during the proceedings regarding the events of
June 28, 2011. However, the Passaic
County prosecutors refused to allow me to testify and present clearly
exculpatory evidence for elements of all the charges. Thus the State fed the grand jury with lies
and fabrications and half “truths”, against the grand jury New Jersey law. Essentially the State impermissibly and
prejudicially interfered with the grand jury’s investigative function.
Lucas Lie #5
Lucas and D’Agostino also claimed that they did not ring
the door bell and that instead, they saw a man waiting for them with a
gun. This is also a fabrication, a lie,
as Lucas rang the doorbell at about 8:52 am (or between 8:50 am and 8:55 am). The sheriff investigation reports show that
other sheriff employees wrote that “somebody answered the door”. These statements corroborate Dr. Stephanatos’
recollection that Lucas rang the doorbell.
When Dr. Stephanatos did not answer the door (I would never answer the
door, and certainly I would not answer it that day), he bypassed the two big
planters and went towards the edge of the porch and started peering inside the
home, as the sun glare makes it impossible to see inside the home during the morning
hours (it is a north/northeast facing home).
That way he performed an illegal search in violation of the Fourth
Amendment to the U.S. Constitution and N.J. Const. (1947), Art. I, Par. 7.
Lucas Lie #6
After peering inside the
dwelling, Lucas then jumped off or fell off the edge of the porch, proving that
he was located at the side window peering inside. He does admit in his Investigation
Report that he “jumped off the porch”. He could not simply follow the steps of the
porch the same way D’Agostino did, because the planters blocked his exit from
his location at the edge of the porch.
The only way he could go was behind the bushes. This is crucial evidence, adding credibility
to my scenario and proving yet again that Lucas lied to the grand jurors.
View of the rhododendron bushes located before Dr.
Stephanatos’ dwelling. Photo taken four
weeks prior to the tragic incidents of June 28, 2011. Note the philodendron subincisum planter at
the front of the porch area (middle left in the above image). At about 8:55 AM on June 28, 2011, after
nobody showed up at the front door, Lucas went behind the philodendron
subincisum planter and placed his face at the side window of the front door so
that he can see inside the home. This is
a criminal activity prohibited under 2C:18-3. Unlicensed entry of structures;
defiant trespasser; peering into dwelling places and an illegal search in
violation of the Fourth Amendment to the U.S. Constitution and N.J. Const.
(1947), Art. I, Par. 7. Lucas then went
behind the rhododendron bushes where he claimed that he fell and injured his
shoulder. These facts prove beyond any
doubt that Lucas was illegally peering and searching inside a dwelling without
having a Warrant for Removal (see N.J.S.A.
2A:39-1 Unlawful entry
prohibited). He then later claimed that
he was just coming up the front steps to deliver papers (and not to evict Dr.
Stephanatos – what a bunch of hooey) and he was assaulted. He also claimed that a plastic Pelican
scientific case used by vendors of Dr. Stephanatos’ business was a metal
ammunition box, a fraudulent assertion that has been refuted before Judge Filko
by Prosecutor Peter Roby.
Furthermore, it is not
possible that these two individuals did not say anything to me, without
announcing that they were sheriff officers or law enforcement officers and
without me saying anything to them (as they have testified); they were both armed and prejudiced against
me (based on the testimony by Lucas) and it makes no sense that they simply
walked away; the only way this could
have happened is if the doors were both locked (i.e., both the storm and the
main wooden door) and they could not have any contact or communication with me
at that time. These are the same type of
people who shoot to kill citizens in their backs and then plant evidence and
even shoot and kill kids who hold plastic guns.
And they claim they simply walked away?
Hard to believe. Because it is a
total and complete fabrication.
Please note that Lucas and D’Agostino are partners.
They drove in the same car during that day and they testified that they both
walk towards the front steps at the same time. Thus, it makes not much
sense that Lucas would go behind my front bushes (the yews and the
rhododendrons), while D’Agostino would go towards his sheriff car. This
scenario is only likely if Lucas was located in front of the side door window
and at the very edge of it (this is where I saw him standing, having his face
on the glass window and illegally peering inside the home). There was no reason for him to do so, if he
was just delivering papers, as he testified.
He could have left the papers in the mailbox or left them at the door
step.
View of the front door of Dr.
Stephanatos’ dwelling at 687 Indian Road, Wayne, New Jersey. Photo taken from the front of the property,
two months after the tragic incidents of June 28, 2011. Note the significant sun glare, making it
impossible to see inside the home during the morning hours. The philodendron subincisum planter at the
front of the porch area has been removed, as the conspirators emptied Dr.
Stephanatos’ home from all his belongings.
Because of the sun glare, Lucas went behind the philodendron subincisum
planter and placed his face at the side window so that he can see inside the
home. This is a criminal activity
prohibited under 2C:18-3.
Unlicensed entry of structures; defiant trespasser; peering into dwelling
places. Lucas then went behind the
rhododendron bushes where he claimed that he fell and injured his
shoulder. These facts prove beyond any
doubt that Lucas was illegally peering and searching inside a dwelling without
having a Warrant for Removal (see N.J.S.A.
2A:39-1 Unlawful entry
prohibited). He then later claimed that
he was just coming up the steps and he was assaulted. He also claimed that a Pelican scientific
case used by vendors of Dr. Stephanatos’ business was an ammunition box, a
fraudulent assertion that has been refuted before Judge Filko by Prosecutor
Peter Robby.
Very
important: my bushes (yews/rhododendrons) were made of some very hard
wood. It is very difficult to go behind them without being scratched.
Lucas in fact stated to his partner and two other officers that he was
scratched by the woods. This proves that
Lucas was standing at the inaccessible to the public window and was peering
inside Mr. Stephanatos’ residence – this is a criminal act under New Jersey law
and an illegal act under federal law.
Furthermore,
Lucas and D’Agostino testified/wrote that they split in two different
directions. Lucas went towards the “woods” (he meant the bushes located
before Dr. Stephanatos’ residence), while D’Agostino went towards the sheriff
cars parked at the top of the driveway. This can only happen if Lucas was
standing at the edge of the porch at the side door window and from there he
went behind the bushes (the “woods”) located in the front of the home.
That was the only route he had available, because the two planters were in his
way and he could not go back towards the door easily. This proves my
allegation that Lucas was standing at the very edge of the porch and by the
side door window, peering inside the home.
D’Agostino was standing in the walkway, and from there he walked towards
the sheriff cars at the top of the driveway.
If
both of them were standing in front of the door, there is no reason for them to
take different routes. All these facts
provide irrefutable proof that these two crooked “officers of the law” have
committed perjury.
The Seven Shades of Lucas
These corrupt liars cannot get their story straight – can
this Court imagine what will happen when we cross-examine them? According to the old maxim, “False in one –
false in all”, we respectfully submit that Lucas and D’Agostino cannot be
trusted, they lied and fabricated their stories to serve the people who hired
them, i.e., the conspirators Robert Del Vecchio, American Tax Funding, et
al. If they lied in one or several parts
of their story, then the entire deposition must be dismissed.
It is important to note that Lucas has changed his story
a number of times: at one time he claims
that he was walking the front stairs and he saw a man standing there and
pointing a gun; at another version he claims that he was standing at the open
door and that he then saw a person coming towards him; at a third time he
claims that there was an altercation; at a forth scenario, he claims that Dr.
Stephanatos never said anything to him (i.e., that there was no altercation);
at a fifth scenario, he wrote in his report that he “jumped of the porch”
(meaning that he was already on the porch and not just coming up the stairs);
at a sixth version he claims that he never rang the doorbell; at a seven
scenario, he stated to his colleagues that he rang the doorbell (this is
confirmed by the statement of other officers who wrote that Lucas told them
that Dr. Stephanatos answered the door); at another version, he claims that Dr.
Stephanatos was barricaded, yet he also claimed that Dr. Stephanatos had his
front door wide open; at another version he claims that he saw a “shotgun”
pointed at him (this was also published in the news media and reported in some
sheriff employee reports, but no “shotgun was ever found because it was a
fabrication by Lucas the Lier) but then he changed his story (after he had a
chance to illegally enter my home) and now he claims that he saw a single-shot Ruger
hunting rifle; in another version he claims that he saw a bomb at the porch,
only to change his story and claim that he saw a “metal ammunition box” – the
State has already admitted that none of these fabrications were true and that
it was a Pelican case used in Dr. Stephanatos’ business that was about to be
picked up by the owner of the case, Pine Environmental, Inc.. However, the State never made these findings
aware to the grand jury.
All these versions have been presented by Lucas, without
having been cross examined by the defense, without placing a time table to his
story elements and without cross-referencing the story given by D’Agostino in
his testimony and his Investigation Report and corroboration with the
investigation reports of others. Can this
Court imagine the Perry Mason moments, when we will cross-examine these liars?
The Fabrications and Intentional Omissions of
Walter Dewey
The
prosecutor, Walter Dewey, also mislead the jurors and fabricated “facts” by
eliciting false testimony from Officer D’Agostino regarding the pointing of a
gun out of a “window”. The officers had
indicated that they saw me standing behind a glass storm door and that I never
opened the door. No “window” was ever
mentioned by the two individuals, as no window exists in the front porch of the
dwelling.
(I denied
that I was standing behind the storm door:
I have stated many times that I was in my office doing my business, I
have the computer records to prove it, those records were submitted to the
prosecutors, and I kept the doors of the home locked with a deadbolt).
But the
prosecutor asked D’Agostino if I was pointing a gun “out the window”. Then D’Agostino said “yes”. This Court should note that there is no
window in the front porch- that was another misleading and prejudicial question
by the corrupt Passaic County prosecutor.
The prosecutors obviously wanted to mislead and lie to the grand jury by
stating that the defendant was pointing a weapon outside a window, something
that the two sheriff employees never wrote in their reports, as no window was
involved. In fact, Lucas never testified
or wrote that the defendant was pointing a weapon outside a window. The corrupt prosecutor Walter Dewey elicited
this statement from D’Agostino only.
Certainly this is a fraudulent and misleading question/statement that
will most certainly damage the State’s “case” (the State never had any case,
they just made this up as they were going along; we now know that no “shotgun” was ever found,
and no “metal ammunition box was ever found”, and no “bomb” was ever found. So these corrupt liars made up a story to
tell the grand jury and the public to justify their wrongful actions.)
As the
defendant has stated before, both the wooden door and the storm door were
closed; the defendant locked the main door with a deadbolt, as always does, because
he lived in a remote and wooded area of Wayne and he was always afraid for his
security. Since he has a legal
background (he was studying for the final exams of the final year of law school
during that week), he knew that if he left the door open (or any window), then
he would have been consenting to an entry inside the home by the Passaic County
employees. There is no way on earth that
he would leave the door open and the computer records show that he was in his
office doing his business and sending emails- none of that information was
allowed by the corrupt prosecutors to be submitted to the grand jury.
Here is
another example of the fraudulent tactics of the Passaic County prosecutor to
lie and mislead the grand jury:
Count 4 charges that the defendant “did recklessly create
a risk of widespread injury or damage by purposely or knowingly barricading
himself into 687 Indian Road . . . while armed with a deadly weapon, contrary
to the provisions of N.J.S. 2C:17-2c.” (Da4; emphasis supplied).
N.J.S.A. 2C:17-2c provides, in pertinent part:
A person who recklessly creates a risk of widespread
injury or damage commits a crime of the fourth degree, even if no such injury
or damage occurs.
N.J.S.A. 2C:17-2e provides: “For purposes of this
section, widespread injury or damage means serious bodily injury to five or
more people or damage to five or more habitations or to a building which would
normally have contained 25 or more persons at the time of the offense.”
It is important to note here that the defendant’s home is
in an isolated area of Wayne, New Jersey.
There are no homes neighboring to the north. There is only one home neighboring to the
east (about 50 feet away) where there was only one woman present and another to
the west (about 100 feet away) where the owners were at work. Thus, this charge is also fraudulent, as less
than five people and less than five habitations were within 100 feet from
defendant’s home. Another example of the
prosecutorial misconduct faced by the defendant.
This
obviously corrupt prosecutor also refused to allow Dr. Stephanatos to testify
to the grand jury to present facts about the defense. He refused to do so and presented numerous
lies and fabrications and refused to provide clearly exculpatory evidence. What a corrupt thug right there in Passaic
County. Only god knows how many people
he has wrongfully convicted.
The New Jersey Grand Jury Law
A
"grand jury's 'mission is to clear the innocent, no less than to bring to
trial those who may be guilty.'" State v. Hogan, 144 N.J. 216, 228
(1996) (quoting State v. Hart, 139 N.J.Super. 565, 568 (App. Div. 1976);
United States v. Dionisio, 410 U.S. 1, 16-17 (1973). In order to execute
that mission, "the grand jury cannot be denied access to evidence that is
credible, material, and so clearly exculpatory as to induce a rational grand
juror to conclude that the State has not made out a prima facie case against
the accused." Id. at 236. As a result, the Supreme Court has imposed a
limited duty on prosecutors to disclose evidence to the grand jury evidence
which "satisfies two requirements: it must directly negate guilt and must
also be clearly exculpatory." Id. at 237 (citing State v. Smith,
269 N.J.Super. 86 (App. Div. 1993), cert. denied, 137 N.J. 164 (1994)). In
order to qualify as evidence that directly negates the guilt of the accused, it
must "squarely refute an element of the crime in question." Ibid. (emphasis
in original). To determine whether evidence is clearly exculpatory, a court
must evaluate the quality and reliability of the evidence within "the
context of the nature and source of the evidence, and the strength of the
State's case." Ibid.
The
Hogan Court remarked that New Jersey courts have not been reluctant to
scrutinize grand jury proceedings where the decision-making process was
fundamentally unfair. supra, 144 N.J. at 229. We have demonstrated a greater
willingness to review grand jury proceedings where the alleged deficiency in
the proceedings affects the grand jurors' ability to make an informed decision
whether to indict. State v. Murphy, 110 N.J. 20, 35 (1988). In State
v. Gaughran, the Court noted there was no issue as to the sufficiency of
the evidence before the grand jury, but rather whether the failure to present
exculpatory evidence "stripped the Grand Jury of its function to protect
the innocent from unfounded prosecution." 260 N.J.Super. 283, 287; 615
A.2d 1293 (1992).
In
State v. Morrison, 188 N.J. 19-20, (2006), the Supreme Court of New
Jersey performed its “fact-sensitive analysis based on the totality of the
circumstances”, concluded that the evidence supporting the element of
distribution was insufficient, and reinstated the Law Division’s dismissal of
the indictment.
Beyond
mandating grand jury independence, the Constitution also requires that a grand
jury receive sufficient information “to make an informed decision whether to
indict.”. Hogan, 144 N.J. at 229.
Toward that end, our Supreme Court has held that, as a matter of state
constitutional law, the prosecution must present to the grand jury evidence
that is “clearly exculpatory”. Id. At 229-39.
See also Smith, 269 N.J. Super. At 95 (“prosecutor’s obligation
to exercise his discretion in good faith encompasses the obligation to give the
grand jury evidence in the prosecutor’s possession which clearly
exculpates a defendant”). In doing so,
the Court explained that the state grand jury clause precludes the prosecution
from “deceiving the grand jury or presenting its evidence in a way that is
tantamount to telling the grand jury a “half-truth” because any “distorted
version of the facts interferes with the grand jury’s decision-making
function”. Id. at 236.
Function of the Grand Jury
The grand jury “has always occupied a high place as an
instrument of justice” in New Jersey's legal system, serving the dual purpose
of determining whether an accused should be subjected to trial, while
simultaneously safeguarding citizens against arbitrary, oppressive and
unsupported criminal proceedings. In re the Essex County Grand Jury
Investigation, 368 N.J.Super. 269, 279-80, 845 A.2d 739 (Law Div.2003) (quoting
State v. Del Fino, 100 N.J. 154, 165, 495 A.2d 60 (1985)); see also State v.
Sivo, 341 N.J.Super. 302, 325, 775 A.2d 227 (Law Div.2000) (“[t]he grand jury
acts as the conscience of the community”). It also operates as an independent
investigatory body, free from the constraints of the rules of evidence and
procedure. Essex County Grand Jury, supra, 368 N.J.Super. at 280, 845 A.2d
739. The grand jury plays a significant role in the administration of
criminal justice, and courts accordingly demonstrate a marked reluctance to
intervene in the grand jury process. See ibid. Though judicial supervision
of its activities is limited, ibid., the grand jury exercises its powers under
the authority and supervision of the judiciary. State v. Arace Bros., 230
N.J.Super. 22, 33-34, 552 A.2d 628 (App.Div.1989).
A grand jury is entitled to engage in an exhaustive
investigation. State v. Francis, 385 N.J.Super. 350, 358, 897 A.2d 388
(App.Div.), leave to appeal granted, 188 N.J. 344, 907 A.2d 1006 (2006); see
also State v. Johnson, 287 N.J.Super. 247, 259, 670 A.2d 1100 (App.Div.) (when
grand jury conducts its investigation, society's interest is best served by a
thorough and extensive investigation), certif. denied, 144 N.J. 587, 677 A.2d
759 (1996); In re Grand Jury Subpoena Duces Tecum, 143 N.J.Super. 526, 535,
363 A.2d 936 (Law Div.1976) (“a grand jury is ․
permitted wide latitude in ․ its
investigation”). Because the grand jury's task is to inquire into the
existence of possible criminal conduct and to return only indictments that are
well founded, its “investigative powers are necessarily broad.” Francis,
supra, 385 N.J.Super. at 358, 897 A.2d 388. Courts grant leeway to a grand
jury's decision to conduct an investigation and issue subpoenas; the grand
jury itself is the “best judge of what evidence it deems necessary in the
pursuit of its investigation.” See United States v. Doe, 429 F.3d 450, 453
(3d Cir.2005). “How much information is ‘enough’ is a matter for the judgment
of the grand jurors and the prosecution rather than the court.” Ibid.
There is no question here that the State intentionally
withheld clearly exculpatory evidence from the grand jury, in addition to
feeding the jurors with false, misleading, perjured and fabricated
stories. The State interfered
impermissibly with the right of the grand jurors to perform an exhaustive
investigation. The indictment must be
dismissed with prejudice due to the perjured testimony and the outrageous
government conduct recounted above.
At the very least, the defendant requests an evidentiary
hearing on these issues.
POINT
VIII
THE
ENTIRE INDICTMENT MUST BE DISMISSED WITH PREJUDICE DUE TO THE OUTRAGEOUS GOVERNMENT
CONDUCT IN MISLEADING THE GRAND JURY
Defendant incorporates the arguments and authorities in
Points I through VII and submits that the indictment must be dismissed with
prejudice due to the outrageous government conduct in misleading the grand
jury. Specifically, during the grand
jury presentation the prosecutor incorrectly and falsely advised the grand
jurors that the defendant refused to pay taxes:
Q
[PROSECUTOR, Walter the Lying Dewey]: And you have been made aware that prior
to the eviction Mr. Stephanatos had made threats indicating I’m not going
anywhere, I don’t have to pay taxes to Wayne, because I don’t have any children
in the school system, correct?
A
That’s correct. (GJT8-18 to 23; Da6; emphasis supplied).
Contrary to the prosecutor’s misstatement, the defendant
never claimed that he did not “have to pay taxes to Wayne.” As the prosecutor was aware, it was the
defendant’s contention that he did not owe taxes as his house had been
“over-assessed.” The defendant had gone
through legitimate means in civil courts to attempt to redress this issue.
The alleged taxes owed (although defendant disputed the
taxes due to overvaluation of the home) were about $20,000. On June 28, 2011, Judge Margaret McVeigh, to
justify her illegal actions and to deny relief to the defendant, she stated
that he did not pay taxes since 1993, which was not true, a false accusation. Defendant only disputed the over-assessment
of his property and he did pay all taxes from 1993 through 2005; then, after his
property was damaged by the Ramapo River flooding, he paid about 50 percent of
the taxes assessed, expecting that the Wayne Township will properly assess the
flooded homes.
In January 2013, Dorothy Kreitz, the Wayne Township Tax
Assessor admitted that the properties are overvalued and that no assessment has
been performed since 1995. These
statements were made by Dorothy Kreitz in a letter and it is available to this
Court upon request or during hearings/testimony. In fact, the home was assessed by almost
$500,000 by Wayne Township and it was sold by the conspirators after they
seized it in 2011 for $330,000. This
sale value represents the fair market value of the property and it is
significantly lower than the $500,000 valuation assigned by Wayne Township, by
at least 40 percent. Only a 15 percent
variance is allowed in the home valuation, yet here we have a 40 percent
overvaluation. Thus, no taxes were legally
due.
Then these criminals conspired with Robert Del Vecchio,
American Tax Funding and others to take Dr. Stephanatos’ home by force, using
two corrupt, lying sheriff employees, Lucas and D’Agostino and lying to Judge
McVeigh that Dr. Stephanatos did not pay taxes since 1993. The fallacy of that statement can also be
easily revealed by the significant taxes paid by residents in Wayne
Township: the average taxes are $10,000,
so if Dr. Stephasnatos had not paid taxes since 1993 (the fraudulent statement
made by the conspirators and Judge McVeigh), then the amount of taxes due would
have been $200,000 and more. However,
the amount of disputed taxes was $20,000 or so.
By falsely advising the grand jurors that the defendant
did not believe he had to pay taxes, he depicted the defendant as a criminal
and as an individual who the grand jurors (who all pay taxes) would resent. It was part of the campaign against Dr.
Stephanatos to depict him to the grand jurors as a violent person (that he had ammunition
in his front porch- these have been proven to be lies, fabrications); refused
to pay taxes (more lies, fabrications), and then ambused (these liers gave the
impression that I had my door open and that somehow I was waiting there to
assault the two lying sheriff employees – total fabrication and lies as
computer records show that I was in my office computer doing business and
sending e-mails), threaten the two “poor” heavily-armed sheriff employees (more
lies and fabrications) with a gun that can only fire one shot at a time (the
hunting rifle that the lying Lucas claimed he saw in the hands of the
defendant).
These “poor” Sheriff employees, who were heavily armed
themselves, claim that they run like chicken when they saw the big, ugly, armed
(with a single-shot rifle) Dr. Stephanatos and fell down injuring themselves–
what a bunch of losers and liars. These
are the same losers, who have been shooting and killing citizens left and
right, even shooting and killing children that carry plastic guns and shooting
people in their back and then plant evidence and claim self-defense. And somehow, these heavily armed, trained
killers just run away scared shitless when they saw Dr. Stephanatos without
saying anything and without Dr. Stephanatos ever saying anything to them? Their stories simply do not add up. This is only possible if there is no
eye-to-eye or any other contact between the parties, as Dr. Stephanatos has
indicated.
The indictment must be dismissed with prejudice due to
the perjured testimony and the outrageous government conduct recounted above.
At the very least, the defendant requests an evidentiary
hearing on these issues.
POINT
IX
THE
DEFENDANT IS ENTITLED TO THE PERSONNEL FILES AND MEDICAL HISTORY FILES INVOLVING
ANY OF THE LAW ENFORCEMENT OFFICERS INVOLVED IN THIS MATTER (PARTICULARLY THE
PERSONNEL FILES OF OFFICERS LUCAS AND D’AGOSTINO); AT THE VERY LEAST, THERE
SHOULD BE AN IN CAMERA REVIEW
Defendant has moved for “any and all internal affairs
complaints/investigations/personnel files involving any of the law enforcement
officers involved in this matter; particularly the personnel files of Officers
Lucas and D’Agostino. At the very least,
there should be in camera review.”
The evaluation of “whether police personnel records
should be disclosed” as evidence of an arresting police officer’s prior bad
acts “involves a balancing between the public interest in maintaining the
confidentiality of police personnel records and a defendant’s guarantee of
cross-examination under the Confrontation Clause” of the Sixth Amendment of the
United States Constitution and Article 1, Section 10 of the New Jersey Constitution.
State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div. 1998).
Defendant’s right to confront witnesses is guaranteed by
both the Federal and New Jersey Constitutions. State v. Budis, 125 N.J.
519, 530 (1991) (citing U.S. Const. amend. VI; N.J. Const. art 1, ¶ 10). “The right to cross-examine is an essential
element of that right.” State v. Harvey, 151 N.J. 117, 188 (1997), cert.
denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). The right of confrontation affords a
defendant the opportunity to question the State’s witnesses, protects against
improper restrictions on the questions asked during cross-examination, and
affords the accused the right to elicit favorable testimony on
cross-examination. Budis, supra, 125 N.J. at 530-31. “Cross-examination is the principal means by
which a witness’ credibility is tested.” State v. Harris, 316 N.J. Super.
384, 397 (App. Div. 1998).
Here, Lucas has offered at least seven different versions
of the events of June 28, 2011 without having been cross-examined; several significant
contradictions exist between what he said and what he wrote or what other
officers wrote or what D’Agostino wrote/said or what electronic/phone records
show. Therefore, his credibility and truthfulness
is in question. The Court should note
the ancient maxim: False in one, false in
all (or you lie, you lose). See State
v. Ernst, 32 N.J. 567, 583 (1960), State v. D'Illopito, 22 N.J. 318,
324 (1956), State v. Sturchio, 127 N.J.L. 366, 369 (Sup. Ct. 1941), State
v. Samuels, 92 N.J.L. 131, 133 (Sup. Ct. 1918).
Furthermore, Lucas may have suffered sport-related or
similar injury prior or right after the June 28, 2011 events. Finally, but not least, Lucas was hired by
the conspirators Robert Del Vecchio and ATF, was acting as agent-in-fact of
these conspirators and has exhibited bias based on the fraudulent statements he
uttered during the grand jury proceedings that were hearsay of what these two
conspirators had told him about the defendant.
Defendant believes that Lucas lied because he was agent-in-fact for the
conspirators Robert Del Vecchio, ATF, he was biased against the defendant, and
he had ulterior motives as he may have been part of the conspiracy (he may
belong to the Italian Mafia Tax Lien (IMTF) organized crime in New Jersey), or
he was trying to cover up his illegal actions (lack of Warrant, Illegal
Peering, Illegal Search, and so on).
Same holds true for D’Agostino.
A criminal defendant “‘must be afforded the opportunity
through effective cross-examination to show bias on the part of adverse state
witnesses.’” State v. Williams, 403 N.J. Super. 39, 49-50 (App. Div.
2008) (quoting State v. Sugar, 100 N.J. 214, 230 (1985)), aff’d as
modified, 197 N.J. 538 (2009). A
“witnesses’ credibility may be attacked by means of cross-examination directed
toward revealing possible biases, prejudices, or ulterior motives of the
witness as they may relate to issues in the case at bar.” Harris, supra,
316 N.J. Super. at 397 (citing Davis v. Alaska, 415 U.S. 308, 315, 94
S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974).
Specifically, “[c]ourts have permitted the disclosure of police
personnel records where they may reveal prior bad acts that bear ‘peculiar
relevance’ to the issues at trial.” Id. at 398.
For example, courts “allow either direct or in camera inspection of
police personnel records when the defense claims the officer was the aggressor
and the court finds that parts of the officer’s personnel history may be
relevant to the officer’s credibility or to the defendant’s claim of
self-defense.” Ibid.
As to the issue before this Court, “The determination of
whether police personnel records should be disclosed involves a blending
between the public interest in maintaining the confidentiality of police
personnel records and a defendant’s guarantee of cross-examination under the
Confrontation Clause.” Harris, supra, 316 N.J. Super. at 397-98. In furtherance of that balancing test, the
Appellate Division has held that where a defendant seeks to review a police
officer’s personnel file the defendant:
must advance ‘some factual predicate which would make it
reasonably likely that the file will bear such fruit and that the quest for its
contents is not merely a desperate grasping at a straw.’” Id. at 398 (quoting State
v. Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980)). However, it’s not required that the defendant
first establish that the personnel file “actually contains relevant
information.” Ibid. On establishing a right to inspect the police officer’s
personnel file, “[t]he disclosure . . . should be made to both the defense and
the State in chambers and on the record.” Id. at 387.
In Harris, the Court directed that the State turn
over the arresting officer’s personnel file for an in camera review, following
leave to appeal from a post-judgment of conviction motion. The defendant had presented evidence that the
arresting officer had taken money from him and his friends, had planted drugs
on them, and had harassed them on other occasions prior to the incident leading
to the arrest. Harris, supra, 316 N.J. Super. at 391 that the arresting
officer was a drug user, id. at 399; that the arresting officer had been
suspended from the police department, id. at 394; and a newspaper had reported
that the police department was investigating the arresting officer for alleged
shakedowns of other individuals. Ibid.
Because the Court determined that because the defendant had produced
evidence of a factual predicate that would make it reasonably likely that
information in the personnel file could affect the officer’s credibility, the
Court directed that the personnel file be turned over for an in camera
inspection. Id. at 399.
In the case at bar, the personnel files and the medical
history files of Officers Lucas and D’Agostino should be disclosed to the
defense. At the very least, there should
be an in camera review.
POINT
X
DEFENDANT
IS ENTITLED TO A HEARING PURSUANT TO STATE V. DRIVER, 38 N.J. 255 (1962)
TO DETERMINE THE ADMISSIBILITY OF THE RECORDINGS MADE IN THIS MATTER
In Paragraph 9 of the Omnibus Motions, defendant moves
for an Order requiring a pretrial hearing in this matter pursuant to the
criteria set forth in State v. Driver, 38 N.J. 255 (1962) (purpose of a
Driver hearing is to be sure that the recording device was capable of taking
the statement, that its operator was competent, that the recording is authentic
and correct, and that no additions or deletions have been made).
POINT
XI
THE
INDIVIDUALS WHO STOLE DEFENDANT’S HOME UNDER THE GUN POINT HAVE PARTICIPATED IN
A CONSPIRACY TO RIG BIDS AND TO DEFRAUD HOMEOWNERS OF THEIR PROPERTIES BY
VIOLATING A NUMBER OF STATE LAWS, INCLUDING THE STATE’S FORCEFUL ENTRY AND
DETAINMENT LAWS AND BY DEFRAUDING THE COURTS BY PROVIDING FRAUDULENT
CERTIFICATIONS
We have discovered a major conspiracy against thousands
of homeowners, including myself by the now convicted felon Robert Del Vecchio,
American Tax Funding, and others.
A Passaic County residence and prominent lawyer, Robert
Del Vecchio, Sr. has pleaded guilty to a conspiracy to violate state and
federal antitrust laws and he was sentenced on January 14, 2014. This information has become available from
the U.S. Department of Justice and the FBI.
It can be found here:
Six Investors Indicted for Their Roles in Bid Rigging
Scheme at Municipal Tax Lien Auctions in New Jersey
Investigation Has Yielded 20 Charges to Date
U.S. Department of Justice November 19, 2013
|
Office of Public Affairs (202) 514-2007/TDD (202)
514-1888
|
This extraordinary factual and legal information will
change the course of this litigation because it proves as I have been saying
all along that these convicted criminals conspired to deprive me of my property
and violated a host of state and federal laws, including the New Jersey
Constitution.
CONSPIRATORIAL ACTS OF THE DEFENDANTS TO FORCE DR.
STEPHANATOS OUT OF HIS HOME AND PLACE OF BUSINESS
I will include below a summary of the subsequent
conspiratory acts of the defendants so that the Court sees the magnitude of the
criminal activities of American Tax Funding, Matthew Marini, Robert Del
Vecchio, Justin Weisenbacher, Brian Lynch, and others. It is possible that Lucas may have been part
of the Italian Mafia Tax Lien organized conspiracy and he has been acting as
agent of the organized group of criminals.
Dr. Stephanatos was not personally liable for the
property taxes and no personal judgment could have been issued against
him. The New Jersey law has been clearly
established for many years: "A tax against real estate is not a debt of
the owner; it is not founded on a contract express or implied but is an
imposition against the property and no personal liability attaches."
(emphasis added) Francis Realty Co. v. Newark, 16 N.J. Misc. 328, 330 (Essex
Co. Cir. Ct. 1938). Dr. Stephanatos was
not personally liable for the property taxes and no personal judgment could
have been issued against him. Only an in rem proceeding could have been
legally instituted to take title from him and to force him out of his
residence. However, according to New
Jersey law only the municipality can institute an “in rem” proceeding.
The municipally held liens can be foreclosed by municipalities under the
In Rem Tax Foreclosure Act codified in N.J.S.A. 54:5-104.29 et seq. However, a private entity, such as ATF and
Del Vecchio, is not allowed by New Jersey law to perform in rem foreclosures. Unless of course a corrupt or incompetent
judge like Margaret McVeigh allows them to do so. – This is what the defendant
in fact charges.
What these defendants did, then, was to treat the real
estate taxes as a personal debt and they used the “in personam” foreclosure proceedings (with the blessing of
the corrupt or incompetent Judge McVeigh that are applicable to debtor-creditor
residential mortgage proceedings or in situations where a person is personally
liable for a debt. However, according to
New Jersey law "A tax against real estate is not a debt of the owner; it
is not founded on a contract express or implied but is an imposition against
the property and no personal liability attaches." (emphasis added) Francis
Realty Co. v. Newark, 16 N.J. Misc. 328, 330 (Essex Co. Cir. Ct. 1938). This position is supported by Rothman v.
River Edge, 149 N.J.Super. 435, 374 A.2d 36 (App.Div. 1977), certif. den., 75
N.J. 19, 379 A.2d 250 (1977) in that court's statement that the unpaid taxes
could not result in a judgment against the taxpayers but shall be a lien against
the premises. [149 N.J. Super. at 442, 374 A.2d 36].
Thus, because the real estate taxes were not a personal
debt of the defendant and no personal liability attaches, these defendants
could not have used the residential mortgage foreclosure proceedings or the “in
personam” foreclosure proceedings to determine ownership and possession of the
land and actual possession of the land.
This could only have happened through an “in rem” proceeding and that
proceeding could have only been conducted by municipalities under the In Rem
Tax Foreclosure Act codified in N.J.S.A. 54:5-104.29 et seq. Thus, the actions of the defendants are
thoroughly unlawful and also prohibited by the Public Use Clause of the Federal
and State Constitutions. These
irregularities also raise issues of Taking of Private Property without Due
Process of Law, i.e., a Due Process 14th Amendment violation.
The Public Use Clause provides that “one person's
property may not be taken for the benefit of another private person without a
justifying public purpose, even though compensation is paid.” Hawaii Hous.
Auth. v. Midkiff, 467 U.S. 229, 241 (1984) (quoting Thompson v. Consol. Gas
Corp., 300 U.S. 55, 80 (1937)). Because a private taking cannot be
constitutional even if compensated, “[a] plaintiff that proves that a
government entity has taken its property for a private, not a public, use is
entitled to an injunction against the unconstitutional taking, not simply
compensation.” Carole Media LLC v. N.J. Transit Corp., 550 F.3d 302, 308 (3d Cir.
2008). Here, there is no dispute that
Plaintiff’s property was taken for a private purpose;
The defendants knew that the above law and other state
statutes protect defendant’s right to remain in actual possession of his
residence. Specifically, N.J.S.A.
2A:39-7 says that title shall not be an
issue since Plaintiff was in continuous possession of his residence for 16
years. N.J.S.A. 2A:39-7 Title not
inquired into; defense of 3 years possession.
Title shall not be an issue in any action commenced under this chapter.
3 years peaceable possession by the defendant shall be a defense to the action. These defenses would have been used by
the defendant in front of a Law Division Judge.
But the conspirators intentionally bypassed these statutory provisions and
used a fraudulent self-certification by the conspirator Robert Del Vecchio who
obtained an ex-parte Writ of Possession from a clerk of Mercer County. These are some very serious accusations by
the defendant, suggesting that he was entrapped and/or placed under duress by
the criminal conspiracy of Del Vecchio, ATF and others.
The Court should note that these convicted criminals used
the mortgage foreclosure procedures that are not applicable to a tax lien
foreclosure case. This is very critical
for the Court to understand and it is consistent with the four (4) cases cited
earlier ruled upon by the Federal Judges of the District of New Jersey.
The Del Vecchio’s (the father of Robert Del Vecchio has
been convicted for participating in this conspiracy, lost his law and real
estate license and was fined hundreds of thousands of dollars) committed a
number of other crimes against Dr. Stephanatos: by making a fraudulent
certification to a Mercer County Clerk in May 2011 that Dr. Stephanatos had no
possessory interests in his home; he then hired his friends Passaic County
officer Lucas and officer D’Agostino to perform an unlawful eviction from Dr.
Stephanatos’ home as no Warrant for Removal was obtained as is mandated by New
Jersey law (N.J.S.A. 2A:39-1et seq. and N.J.S.A. 2A:18-57) [6]and committed a forceful
entry in violation of the New Jersey Forceful Entry statutes, he lied to judge
McVeigh that Dr. Stephanatos owed $65,000 in taxes without performing an
accounting, without revealing that they charged the Plaintiff with unlawful
interest rates and penalties and the forfeited premium of $20,000 in violation
of the New Jersey Tax Sales Law, without revealing to the Judge McVeigh that
Dr. Stephanatos was in dispute with Wayne Township due to the over-assessment of
his property[7]
and that the taxes allegedly “owed” (Dr. Stephanatos disputes that he owed any
taxes to the Township) were significantly less; Del Vecchio continued to feed
Judge McVeigh on an ex-parte basis lies and fabrications (such as that Dr.
Stephanatos had not paid taxes since 1993).
These were all false statements made by Del Vecchio to prejudice the
courts against Dr. Stephanatos and to defraud him of his property; and
unfortunately he was successful, with the help from the potential Italian Mafia
member, Lucas.
Finally, there was no judicial sale of Dr. Stephanatos’
property and there was no “price”, similar to what the 3 federal judges have
found in the case listed earlier. Dr.
Stephanatos fully owned his residence that had been valued by the municipality
at almost $500,000. The defendants ATF
and Del Vecchio, also included the $20,000 premium in the amount they asked for
redemption. As was reported earlier,
under New Jersey law, upon redemption the municipality must return the premium
to the bidder, and if the lien is not redeemed within five years the premium is
surrendered to the municipality. Under
no scenario would the property owner be responsible for payment of the premium
upon redemption or otherwise. Here,
because the certificate was not redeemed within the 5 year period, they
forfeited the premium. To recoup this
loss, they then included it in the redemption amount.
By knowingly including an improper amount as a charge
asserted in a proof of claim, the lien holder must be found to have violated a
certain section of the New Jersey statute on lien enforcement, and this Court
must respond by disallowing the claim and avoiding the lien altogether. See In re Princeton Office Park, __ B.R. __,
2014 WL 341089 (Bkrtcy. D.N.J.).
PLAINTIFF HAD FILED TWO APPEALS FROM JUDGE JACOBSON AND
MCVEIGH DECISIONS UNTIL THE APPEALS COURTS RULE BUT THESE CRIMINALS HIRED THE SHERIFF
AND FORCED ME OUT OF MY RESIDENCE AND PLACE OF BUSINESS.
In June 2011, Dr. Stephanatos had filed a suit to vacate the
tax deed (Passaic County, Law Division L-2973-11). Dr. Stephanatos even sent a letter to the
judges, to the co-conspirators Robert Del Vecchio, Matthew Marini and the
sheriff that appeals are pending and they in fact responded to the letter,
acknowledging the appeals. That suit to
vacate the tax deed was filed within the statutory period of three months. Due to the refusal of McVeigh to stay the
proceedings for the court of Appeals to review what they (McVeigh et al) have
done, the fraudulent issuance of an ex-parte writ of possession and the
wrongful interference by the sheriff and American Tax Funding, LLC of Dr.
Stephanatos’ legal rights, the Law Division did not hear that lawsuit.
Meanwhile, Dr. Stephanatos also filed two appeals: one
from the L-2672-09 case and one from the F-9241-09 case. The appeals were docketed as follows: A-4685-10 and A-3900-10 (appeal from
L-2672-09) Team 4. At the same time, Dr.
Stephanatos applied for a stay from the foreclosure judgment by petition Judge
Jacobson, to ensure that a higher court and/or a federal court hear his
appeals. Realizing that McVeigh will not
rule according to the state law, and since she is an equity judge and not a law
division judge, I did not petition to her for a stay formally, but on an informal
basis until I apply to a law division judge.
I filed a suit to vacate the tax deed (Passaic County, Law Division
L-2973-11) and petitioned at the same time to stay the actions of Robert Del
Vecchio and ATF. .At that time, McVeigh
refused to stay the taking of my property by force, despite the fact I was keep
telling them that what they are doing is illegal. The sheriff officers and McVeigh were aware
that appeals and lawsuits were pending; they also knew that state law, allows
Dr. Stephanatos to stay in his home, because he has been using the home as his
residence continuously since 1995 (see N.J.S.A. 2A:39-7. Title not inquired
into; defense of 3 years possession “Title shall not be an issue in any action
commenced under this chapter. 3 years peaceable possession by the defendant
shall be a defense to the action”) and that is why they acted with haste and
fraud and criminal intent to deprive Dr. Stephanatos of his home and his
business. There was no reason for the
defendant to be forced out of his home, as the conspirators could have sold it
with him being still in there. New
Jersey Law says that a tenant cannot be moved out of his home just for the
foreclosure owner obtains a better value.
This behavior shocks the conscience, implicating a substantive due
process violation. This violation
occurred on June 28, 2011.
It is crucial to report to the Court that the Sheriff and
the Passaic County provide as a defense to the federal complaint that
“Plaintiff never appealed the underlying Court Orders
which ordered him to vacate the subject premises, therefore, the defendants
acted within their purview under the cover of law - regarding the underlying
events;”
This defense is obvious not valid, considering that Dr.
Stephanatos had filed several appeals and had in fact notified the Sheriff of
the pendency of such appeals. Furthermore,
there have been no removal orders from Law Division Judge; just a Writ of
Possession from a clerk of Mercer County based on the fraudulent
self-certification of the conspirator Robert Del Vecchio. The sheriff and its employees also acted as
agents-in-fact for the conspirators and were paid by the conspirators. Thus, the motivation for the actions of the
Sheriff and its employees is highly suspicious.
Lucas may also be part of the Italian Mafia Tax Lien organized crime
group.
Judge Margaret McVeigh then violated a number of state
laws and NJ Court Rules and other legal procedures in accordance with Royal
Tax Lien Servs., LLC V. Morodan, Docket No. A-6030-12T1 (N.J. Super. App.
Div. Jul 03, 2014), I.E.'s, L.L.C. v. Simmons, 392 N.J. Super. 520, 537 (Law
Div. 2006), Ronan v. Adely, 182 N.J. 103, 110-11 (2004); Cameco, Inc.
v. Gedicke, 157 N.J. 504, 509-10 (1999); Kas Oriental Rugs, Inc. v.
Ellman, 407 N.J. Super. 538, 562-63 (App. Div.), certif. denied, 200 N.J.
476 (2009); and Judge Margaret McVeigh failed to consider the full equity that
defendant had in his home in direct violation of New Jersey case law in
accordance with Royal Tax Lien Servs., LLC V. Morodan).
Despite the lack of any fact-finding or any bench or jury
trial by the incompetent Judge McVeigh (all that in violation of New Jersey law
and legal president), McVeigh forward the case to a Mercer County Judge. On May 13, 2011, the Honorable Mary C. Jacobson,
P.J.Ch., entered a final judgment against Dr. Stephanatos in favor of American
Tax Funding, LLC (“ATFH”). (Final Judgment annexed at Da44-46, Motion to Change
Venue). This final judgment contains the
language “This judgment shall not affect the rights of any person protected by
the New Jersey Tenant Anti-Eviction Act (N.J.S.A, 2A:18-61.1 et seq.)”
(Da45). The significance of this clause
is discussed in this brief, infra.
Robert A. Del Vecchio is the attorney for ATF, LLC, and
he submitted a Certification (filed May 13, 2011), stating, in part:
The aforementioned person is not protected by the
provision of the Anti-Eviction Act (the “Act”), as enunciated in the New Jersey
Supreme Court Case of Chase Manhattan Bank v. Josephson, since that Act applies
to tenants and this defendant is the prior owner of the property. His ownership rights were foreclosed upon in
the above-entitled action. (Da48).
The
Court should note that the convicted felon Del Vecchio cites a case that deals
with mortgage foreclosure and has nothing to do with a tax lien case. The Federal Judges of the District of New
Jersey (see cases cited above) have already ruled to that effect, i.e., that
tax lien cases do not protect the rights of the transferee and that they are
subject to fraudulent conveyance lawsuits.
The significance of this statement by Robert Del Vecchio is that in
addition to the fact that he cited mortgage foreclosure cases that are
irrelevant in tax lien foreclosure cases, the judgment only covered ownership
and not possession of the home of Dr. Stephanatos, who was also using his
homestead as the place of business (Metropolitan Environmental Services, PC and
Metropolitan Environmental Services).
Mr. Del Vecchio, in addition to violating federal law (the conspiracy with
ATF to violate the Sherman Act) he also intentionally conspired with ATF and
the Passaic County employees, including the incompetent McVeigh (failed to
consider the full equity that defendant had in his home and failed to perform a
bench trial or any fact finding of any kind in violation of court rules) to
violate the possessory rights of Dr. Stephanatos.
Furthermore, the case cited by the criminal conspirator
Del Vecchio pertains to mortgage foreclosure cases and not tax lien cases, as
the Federal Judges in the District of New Jersey have ruled (see cases reported
earlier). Thus, his certification was
outright fraudulent AND illegal as a matter of New Jersey law.
The judgment under the tax sale law was supposed to cover
only ownership of a property and not possession. In fact, Del Vecchio himself wrote in the
Application for an ex-parte Writ that Dr. Stephanatos only lost the ownership
rights – no possessory rights were ever lost by Dr. Stephanatos, as he was in possession
of his property continuously, he did not owe any taxes due to the unlawful
over-assessment of his property and since state law protected his possessory
rights. See N.J.S.A. 2A:39-1. On
September 30, 2013, Del Vecchio pleaded guilty to conspiring to violate the
antitrust laws of this state and the federal government’s.
Since Dr. Stephanatos was opposed to any person entering
his homestead property and had communicated this to the sheriff and Del
Vecchio, the possession of the property was supposed to be determined by a Law
Division judge pursuant to N.J.S.A. 2A:39-1 that prohibits unlawful entry onto
a residential property
With regard to any real property occupied solely as a
residence by the party in possession, such entry shall not be made in any
manner without the consent of the party in possession unless the entry and
detention is made pursuant to legal process as set out in N.J.S.2A:18-53 et
seq., as amended and supplemented.
This process mandates the procurement of a Warrant of
Removal. Del Vecchio and the sheriff employees did not do that here, in a
conspiracy to violate Dr. Stephanatos possessory and other legal rights. In fact, these individuals have pleaded in
the federal lawsuit that they were not aware that any appeal were pending and that
all issues had been adjudicated, when in fact no issues had ever been
adjudicated. They used these excuses as
a pre-text to intentionally violate Dr. Stephanatos’ possessory and other legal
rights and caused him the loss of his business, his home and the destruction of
his business and personal property. The
damages they caused him are into the many millions of dollars and that is the
reason that Dr. Stephanatos was under such extraordinary duress during the day
of the incident. Government entrapment
is also at play here.
Del Vecchio and ATF obtained only an ex-parte writ of
possession, upon the self- certification of Del Vecchio that Dr. Stephanatos
did not any possessory interests protected by the Due Process Clause and/or the
Anti-Eviction Act or the Summary Dispossess Act. This way, the Defendants managed to fool the
sheriff to remove Dr. Stephanatos from his dwelling and place of business by
force on June 28, 2011, WHILE APPEALS AND LAWSUITS WERE PENDING.
The sheriff knew of the practices of Del Vecchio and ATF;
yet, the sheriff employees acted as agents for Del Vecchio and intentionally
violated Dr. Stephanatos’ possessory rights, including a host of other offenses
(trespassing, peering through windows, etc).
Dr. Stephanatos had informed McVeigh and the sheriff of these practices
by Del Vecchio and ATF and had alerted the authorities (the sheriff, the
governor, the local senator O’Toole, etc.) that these individuals are breaking
a host of state and federal laws. Dr.
Stephanatos also filed appeals and suits to vacate the tax deed. However McVeigh refused to stay the
proceedings and this is a crucial fact that the jury will consider in their
deliberations:
·
why there was so much haste to remove Dr.
Stephanatos from his residence and place of business?
·
Why there was not a stay so that all these
issues are adjudicated and the fraud of Del Vecchio, ATF and the Wayne Township
is exposed? A SIMPLE STAY OF THE
PROCEEDINGS WOULD HAVE PREVENTED THE INCIDENT ON JUNE 28, 2011. Now we have found out significant issues with
what these conspirators and convicted criminals did and the violation of
numerous laws of this state.
The grand jurors were not allowed to hear Mr.
Stephanatos’ accusations that the now convicted conspirators had violated
numerous state laws, including the criminal conspiracy, the violation of the
New Jersey Constitution, the Forceful Entry and Detainer law, and the New
Jersey Tax Sale Law. Mr. Stephanatos
initially hired Mr. Carl Herman, Esq. to get him to the grand jury and present
his exculpatory evidence that shows that all the accusations of the Passaic
County sheriff’s employees were fabricated and outright lies. But the prosecutors refused to allow us to
present any exculpatory evidence to the grand jury. Instead, they committed the above stated violations
of state laws and procedures and committed the outrageous government misconduct
and prosecutorial misconduct cited herein.
In the case at bar the indictment must be dismissed with
prejudice due to the outrageous government conduct recounted above and in this
brief, infra.
POINT
XII
THE CHARGES
UNDER The 2C:12-1b(9) statute MUST BE DISMISSED WITH PREJUDICE AS IT IS intended
to protect LAW ENFORCEMENT officerS and not sheriff employeeS. LUCAS AND D’AGOSTINO were not wearing law
enforcement uniforms; THEY WERE WEARING PROCESS SERVER UNIFORMS, AS PER THEIR GRAND JURY
TESTIMONY, THEY NEVER ANNOUNCED THEMSELVES AS LAW ENFORCEMENT OFFICERS AND THEY
TESTIFIED THAT THEY NEVER KNOCKED OR RANG THE DOOR BELL. THE STATE FRAUDULENTLY CHARGED THE DEFENDANT
UNDER 2C:12-1B(9) TO DEMAND AN ADDITIONAL $200,000 CASH BAIL TO TRY TO HOLD THE
DEFENDANT IN JAIL.
This statute requires that the defendants knows that
Lucas and D’Agostino were acting as law enforcement officers. During their testimony, these two individuals
testified that the defendant should have known that they are law enforcement officers
because they were wearing uniforms. This
is totally wrong and requires a dismissal of these charges. We explain our reasoning below:
The two sheriff employees did not wear the dark blue or
black law enforcement uniforms and according to their testimony, they did not
identify themselves as law enforcement and they did not have a mandatory
Warrant for Removal. In fact, they never
claimed that they ever announced themselves, such as knocking at the door or
ringing the door bell, as per their testimony.
They in fact testified that they were sheriff employees working to
deliver documents (as they testified), not police officers performing a
criminal investigation. Their duties
during that day were not law enforcement duties, because this was a civil
matter.
See 2C:25-19 - Definitions
"Law
enforcement officer" means a person whose public duties include the power
to act as an officer for the detection, apprehension, arrest and conviction of
offenders against the laws of this State.
Here, the public duties of Lucas and D’Agostino were not
that of a police officer. The defendant
never knew that they were acting as law enforcement officers, as they never had
a Warrant for Removal from a Law Division Judge and they were not wearing law
enforcement officer uniforms and they never announced themselves and as per
their testimony, they never knocked or rang the doorbell.
We believe the 2C:12-1B(9) statute is meant to protect
law enforcement personnel in the performance of their law enforcement duties;
not to apply it to process server situations or to protect sheriff employees. This is also shown in the self-defense
statutes that state that the defense of home is not applicable in
law-enforcement situations where the police officer is armed with a warrant.
These two sheriff employees were not performing a duty of
a law-enforcement officers, that is “detection,
apprehension, arrest and conviction of offenders against the laws of this
State” as this was a civil matter, not a criminal matter. That is why they originally filed charges
under section 2C:12-1b(4).
As they stated at the grand jury proceedings, they were
only trying to “deliver documents”. These
two individuals initially filed charges under section 2C:12-1b(4) (the person
or sheriff employee section) and later they changed their charges to fall under
2C:12-1b(9)(law enforcement officer). We
need to find out as to why they changed their charges, as these two were
sheriff employees working as process servers and not police officers doing “detection, apprehension, arrest and
conviction of offenders against the laws of this State”. We believe that they changed the charges to
be able to collect an additional $200,000 in bail and to hold the defendant in
jail. This is unfortunately a very
typical situation across the country where the prosecutor files charges based
on wrong statutes and/or unsubstantiated charges to hold people in jail and to
force them cut a plea deal.
They in fact did not have a Warrant for Removal as is
mandated by New Jersey Law to allow them to enter a dwelling and remove a
tenant. The 2C:12-1b(9) statute is meant
to protect law enforcement personnel in the performance of their law
enforcement duties and they are not meant to cover sheriff officers in the
performance of non-law enforcement duties.
This was a civil matter and not a criminal matter. The public duties of the process server were
not “detection, apprehension, arrest and
conviction of offenders against the laws of this State”.
The sheriff has posted in his web pages they were agents
of the plaintiff (ATF/Del Vecchio in this case).
As further proof that the statutes intended to protect
law enforcement officers is a look at the statute 2C:12-1b(5). This is the statute that addresses the
assault on law enforcement officer or public employee, such a sheriff. Under this statute, the assault upon a law
enforcement officer is included under 2C:12-1b(5)(a): Any law enforcement officer acting in the performance of his duties
while in uniform or exhibiting evidence of his authority or because of his
status as a law enforcement officer.
By contrast the assault on a sheriff officer is included
under section 2C:12-1b(5)(h): Any …
sheriff, undersheriff, or sheriff’s officer acting in the performance of his
duties while in uniform or exhibiting evidence of his authority.
Thus, the legislature has clearly distinguished between a
law enforcement officer and a sheriff officer.
These two groups of employees were not meant to be considered one and
the same.
I believe that this analysis conclusively proves that the
statute 2C:12-1b(9) does not include sheriff employees, but it was intended to
protect police officers in their law enforcement duties. The state legislature would have most likely
included the sheriff employees in this statute and not simply leave it open to
interpretation or ambiguity.
These charges must be dismissed with prejudice for the
reasons stated above.
POINT
XIII
THE
CHARGES UNDER THE N.J.S. 2C:17-2C STATUTE MUST BE DISMISSED WITH PREJUDICE AS
DEFENDANT’S HOME WAS LOCATED IN A HEAVILY WOODED, REMOTE AREA OF WAYNE
TOWNSHIP, WHERE LESS THAN 2 HOMES WERE LOCATED AND LESS THAN 2 PEOPLE WERE
WITHIN 100 FEET OF DEFENDANT’S HOME.
Count 4 charges that the defendant “did recklessly create
a risk of widespread injury or damage by purposely or knowingly barricading
himself into 687 Indian Road . . . while armed with a deadly weapon, contrary
to the provisions of N.J.S. 2C:17-2c.” (Da4; emphasis supplied).
N.J.S.A. 2C:17-2c provides, in pertinent part:
A
person who recklessly creates a risk of widespread injury or damage commits a
crime of the fourth degree, even if no such injury or damage occurs.
N.J.S.A. 2C:17-2e provides: “For purposes of this section, widespread injury or damage means
serious bodily injury to five or more people or damage to five or more
habitations or to a building which would normally have contained 25 or more
persons at the time of the offense.”
It is important to note here that the defendant’s home was
in a heavily wooded, isolated area of Wayne, New Jersey. There are no homes neighboring to the
north. There is only one home
neighboring to the east (about 50 feet away) where there was only one woman
present and another to the west (about 100 feet away) where the owners were at
work. Thus, this charge is also fraudulent,
as less than five people and less than five habitations were within 100 feet
from defendant’s home. The only person
here are risk of serious injury or death was the defendant as the SWAT team got
the go ahead to storm the house at about 1:30 pm on June 28, 2011. It was a miraculous coincidence that at that
time the defendant finished sending his emergent appeals to stop the reckless
onslaught of the sheriff employees and the conspirators. Therefore, the corrupt Passaic County
prosecutor, Walter Dewey, did not advice the grand jury regarding the “five or more people or damage to five or
more habitations” requirement for this charge. Of course, by now this Court should have
become accustomed to expect the worst (i.e., lies and fabrications) from this
and other Passaic County prosecutors.
Furthermore, defendant at no time was notified that he
had committed an offense or that he was under arrest, at no time did he display
a weapon (there was no evidence presented to the grand jurors that the
defendant threatened anyone with a gun while inside his own home), and at no
time did he barricade inside his home.
The media reports stated on June 28, 2011 that the sheriff told them
that the defendant was armed with a “shotgun”.
However, no such weapon was ever found, as it was a fabrication by the sheriff
and his employees to perform an illegal arrest and seizure and an illegal
removal without having a Warrant for Removal.
The state
never presented evidence that the defendant was barricaded
The stature requires that the defendant was barricaded
inside his home. This is false assertion
and it is not supported by any facts presented by the sheriff or the prosecutor
during the grand jury criminal proceedings.
I am providing the definition of the term “barricade” in
accordance with a number of dictionaries:
Definition of “Barricade”:
1.
barricade - a barrier set up by police to stop
traffic on a street or road in order to catch a fugitive or inspect traffic
etc.
barrier - a structure or object that impedes
free movement
2.
barricade - a barrier (usually thrown up hastily)
to impede the advance of an enemy; "they stormed the barricade"
barrier - a structure or object that impedes
free movement
barricade
barrier, wall, railing, fence, blockade, obstruction, rampart, fortification, bulwark, palisade, stockade Large areas of
the city have been closed off by barricades.
to
prevent access to by means of a barricade
Here, the two officers or the sheriff never
presented evidence that the defendant had erected any barrier to prevent the
advancement of the sheriff officers. The
defendant was sitting inside his office and doing his business, because he had
been assured by the sheriff in May 2011 that no tenants would be removed from
the premises. The defendant had no
reason to erect a barricade as he knew that the sheriff did not have the
requisite Warrant for Removal and no such “barricade” evidence has been
presented by the sheriff during the grand jury proceedings. On the contrary, according to the sheriff
officers, the defendant’s door was wide open.
It should be noted that the door of the home is not considered a
barricade. Perhaps the sheriff employees
wanted to say that the door was closed and this would of course contradict
their statements that defendant’s door was open;
however, the door is not a barricade.
The State must make their mind regarding the door: was it open or was it closed? They simply cannot have it both ways (of course,
this is New Jersey, and we are fully accustomed of the corrupt prosecutors and
others).
Only the video and audio recordings made
by the sheriff will settle this issue once and for all (and will lead of course
to the perjury conviction of Lucas and D’Agostino). This Court should order the State to produce
the video and audio recordings of the sheriff during June 28, 2011.
The defendant is concerned that due to
the 4.5+ year delay in the case, all the evidence may have already been
destroyed by the Sheriff. Already the Sheriff
has removed from his web pages all and every references to his process
service. Prior to June 28, 2011, the
Passaic County Sheriff had prominently displayed the process service unit onto
his web pages (stating there in that the “sheriff acts as the agent for the plaintiff”,
consistent with the reply letter the Sheriff sent in May 2011 to the defendant
stating that the Sheriff “only takes orders from the Plaintiff”), while now he
removed all and every reference to it.
We are deeply concerned about this potential cover-up and destruction of
evidence.
An indictment should be dismissed as facially deficient
“if it fails to charge an offense,” by failing to charge “‘all of the critical
facts and each of the essential elements which constitute the offense
alleged.’” State v. Bennett, 194
N.J. Super. 231, 234 (App. Div. 1984) (quoting Wein, supra, 80 N.J. at
497). An indictment should be dismissed
for lack of sufficient evidence if the grand jury was not presented “with at
least some evidence as to each element of a prima facie case.” Ibid. (internal
quotation marks omitted).
The Count
4 charge must be dismissed with prejudice due to the outrageous government
conduct described herein in deceiving and misleading the grand jury.
CONCLUSION
The model jury instructions include the following “false
in one – then false in all” instruction:
If you believe that
any witness or party willfully or knowingly testified falsely to any material
facts in the case, with intent to deceive you, you may give such weight to his
or her testimony as you may deem it is entitled. You may believe some of it, or
you may, in your discretion, disregard all of it.
See State v. Ernst, 32 N.J. 567, 583 (1960), State
v. D'Illopito, 22 N.J. 318, 324 (1956), State v. Sturchio, 127
N.J.L. 366, 369 (Sup. Ct. 1941), State v. Samuels, 92 N.J.L. 131, 133
(Sup. Ct. 1918).
We believe that this instruction is very pertinent here,
as the stories told and written by the State witnesses and the Passaic County
prosecutors are simply false, unbelievable and outright falsities that intended
to deceive the grand jurors and prejudice the jurors against the defendant.
For the foregoing reasons and authorities cited, the
defendant Basilis N. Stephanatos respectfully submits that his motions for dismissal
of the indictment with prejudice must be granted. The defendant’s motion for the release of
personnel files and all videotaped, audiotaped and written (the Incident
Reconstruction Report) evidence should also be granted. Defendant also requests the specific relief
delineated in the Omnibus Motions, including the cross examination of Lucas and
D’Agostino to further prove to this Court that these two individuals committed
perjury and intentionally violated the civil rights of the defendant. Cross-examination of Walter Dewey should also
be allowed by this Court, to further substantiate the charges of Prosecutorial
Misconduct.
Respectfully submitted,
___________________________________
Miles Feinstein, Esq.
Dated: November 5, 2015
