CRIMINAL CONSPIRACY BY NEW JERSEY GOVERNMENT EMPLOYEES EXPOSED: prosecutorial wrongdoing, fraudulent conduct, perjured testimonies, fake “facts” or numerous cumulative errors prejudiced the ultimate decision reached by the Grand Jury to indict an innocent homeowner whose property was stolen under the gun point

Dear Legislators:

We have been reporting on a case that has been pending for more than 7+ years due to judicial and state employee corruption, perjury, misconduct, etc.  

Based on the fact-finding, former Chancery judge Margaret McVeigh in Passaic County stole homestead property valued at $475,000 for $20,000 in undue taxes in Wayne Township, New Jersey.

Do you care to comment please?  Here are some documents from this case.

Sincerely,

John Smith

Senior Investigator

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CRIMINAL CONSPIRACY BY NEW JERSEY GOVERNMENT EMPLOYEES EXPOSED: prosecutorial wrongdoing, fraudulent conduct, perjured testimonies, fake “facts” or numerous cumulative errors prejudiced the ultimate decision reached by the Grand Jury to indict an innocent homeowner whose property was stolen under the gun point

State v. Basilis Stephanatos

Passaic County Ind. No. 11-09-0810-I

MOTION (32) – UNDER THE DOCTRINE OF CUMULATIVE ERRORS, A NEW GRAND JURY SHOULD BE CONVENED PURSUANT TO STATE V. ORECCHIO, 16 N.J. 125, 129 (1954)

Taken cumulatively, the legal errors and false testimonies in this case are of such a magnitude that they undeniably prejudiced the defendant’s rights and, in their aggregate, rendered the grand jury proceedings totally unfair.  Fundamental fairness and constitutional concepts dictate a dismissal.  See State v. Orrechio, 16 N.J. 125 (1954).

The New Jersey Supreme Court first discussed the concept of cumulative errors in the context of a criminal trial in State v. Orecchio, 16 N.J. 125, 129 (1954).  When legal errors cumulatively render a grand jury proceeding or trial unfair, the Constitution requires a new trial. "[W]here any one of several errors assigned would not in itself be sufficient to warrant a reversal, yet if all of them taken together justify the conclusion that defendant was not accorded a fair trial, it becomes the duty of this court to reverse." Id. at 134 (citations omitted).

The testimonies’ cumulative effect was “clearly capable of producing an unjust result,” R. 2:10-2, requiring a reversal of defendant’s convictions. See State v. Weaver, 219 N.J. 131, 155 (2014) (explaining a court should reverse a conviction “[w]hen legal errors cumulatively render a trial unfair” (citing State v. Orecchio, 16 N.J. 125, 129 (1954))). 

The New Jersey Supreme Court extended its cumulative error analysis to the civil realm thereafter, reversing a verdict for plaintiffs injured in an automobile accident. See Biruk v. Wilson, 50 N.J. 253, 263 (1967). In doing so, the Supreme Court identified several comments made by counsel that were inappropriate, noting in particular a wholly unsupported and misleading suggestion that there was a witness who had not testified but who might have had helpful information and an equally baseless suggestion that the defendant had caused the accident by engaging in a game or by racing with another vehicle. Id. at 261.

In yet another Supreme Court case, the judgment of the Appellate Division was reversed, the verdict was vacated, and the matter was remanded for a new trial because of abuse of judicial discretion in failing to control plaintiff's counsel - Casey Pellicer v. St. Barnabas Hospital, No. A-88-89-90-91-07 (N.J. 2009).

The predicate for relief under the cumulative error doctrine requires that defendant establish that “the probable effect of the cumulative error will render the underlying trial unfair.” State v. Wakefield , 190 N.J. 397, 538 (2007), cert. denied, 552 U.S.1146, 128 S. Ct.1974, 169 L. Ed.2d 817 (2008).  See also “Even when an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal.” State v. Jenewicz, 193 N.J. 440, 473 (2008).

Defendant submits that the State v. Orrechio, 16 N.J. 125 (1954) Doctrine of Cumulative Errors should be applied in Stephanatos.  This case has been applied by the New Jersey Supreme Court to civil cases as well;  therefore, its application to legal proceedings, including grand jury proceedings is also applicable.  See for example: Torres v. Pabon, 225 N.J. 167 (2016).  As Justice Patterson explained in her decision for a unanimous Supreme Court, “cumulative error” exists when “the aggregate effect of a series of errors” deprives a party of a fair legal proceeding.  In such a case, a court “need not consider whether each individual error was prejudicial.”  In today’s decision, which involved an automobile negligence case, the Court found cumulative error, based on five separate mistaken rulings, and reversed a jury verdict for plaintiff that the Appellate Division had upheld.

Other states use similar procedure when they evaluate defense claims of impairment of the grand jury.  Dismissal under this standard “should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury,” People v. Huston, 88 NY2d 400 (1996).

Possibility of prejudice.  The impairment standard, while “very high and very precise,” does not require that prejudice result, People v. Huston. Supra. The issue may require a hearing, People v. Washington, 82 AD3d 1675 (4th Dept 2011).  In Huston, where the prosecutor’s misconduct was intentional, usurped the grand jury’s function, and biased the proceedings against the defendant, the Court of Appeals found that the grand jury’s integrity was impaired, and dismissed the indictment.  The failure to properly charge the grand jury on an asserted defense may constitute impairment, People v. Calkins, 85 AD3d 1676 (4th Dept 2011).

Where a grand juror, who was related to some of the victims, was not permitted to testify in those counts involving her relatives, but participated on other counts, impairment was found, People v. Connolly, 63 AD3d 1703 (4th Dept 2009).  The introduction of clearly inadmissible evidence (phone conversations that were recorded without either party’s permission) was held to impair the grand jury’s integrity, People v. Heffner, 187 Misc 2d 617 (County Court 2001).

It is respectfully submitted that there are numerous serious legal issues raised regarding the unfair grand jury presentation in this matter. 

·         In part, material false testimony presented to the grand jury by Lucas and D’Agostino when in fact they were never assaulted by Dr. Stephanatos (and Dr. Stephanatos has already provided irrefutable proof of the perjury committed by Lucas who signed a document stating that it was Nick Mango and not himself at the front door – See Defense Exhibit D-1, Supplemental Motions to Dismiss, March 2018);

·         Numerous contradictory investigatory reports were not presented to the grand jurors or were outright hidden from the grand jurors by the prosecutor;

·    In paragraph 2 of section 4 of the Warrant Affidavit, Lucas “relates” to Detective Scala “that upon knocking on the front entrance door of the residence”.  See excerpt from the warrant affidavit, Defense Exhibit D-11.  This statement to Detective Scala fully corroborates Dr. Stephanatos’ statements that his front door was closed – very closed – with a lock and deadbolt closed.

·         However, in his June 28, 2011 report prepared by Cpl. Lucas, he writes the following: “As we proceeded toward the front door I ascented[sic] the steps and noticed the front wood door was open and a glass storm door made the interior of the house visible to me”.  “At that moment a man came from the hallway with a long object in his left hand”.

·    So, based on these diametrically different statements by Lucas, the prosecutor knew or should have known that Lucas lied.  At the point at which the prosecutor learned of the perjury before and during the grand jury, the prosecutor was under a duty to notify the court and the grand jury, to correct the cancer of justice that had become apparent to him.  But he did not.  This is clear, unequivocal prosecutorial misconduct for intentionally misleading the grand jury.

·    Furthermore, in his grand jury testimony, Officer Lucas identified the “Ruger M77 Mark II, 270 caliber Winchester single bullet hunting rifle” as being the weapon that the defendant pointed at him. (GJT27-8 to 13; Da15, Motion to Change Venue).  It is critical to note that the hunting rifle is a BROWN COLORED GUN.  However, in section 2 of paragraph 4 of the Warrant Affidavit, Lucas “relates” to Detective Scala that he saw a “BLACK COLORED RIFLE”.  So, again the prosecutor knew or should have known that Lucas lied before the grand jury when he selected a different color gun than the one he related to Detective Scala.

·         “fake facts” (the pointing of a gun out a window) cooked up by the prosecutor that were highly prejudicial to the Defendant;

·         Not mentioning that this was a residential property in a wooded area of Wayne Township where less than 5 people and less than 5 dwellings were located nearby;

·         not presenting to the Grand Jurors the record of the phone and emails of Dr. Stephanatos PROVING BEYOND ANY DOUBT HIS WHEREABOUTS (and refuting the state’s allegations that he was pointing guns at people and that he was barricaded);

·         the impermissible mentioning of bombs and IEDs and ammunition boxes during the grand jury proceeding when in fact the prosecutor and his witnesses knew that these were false statements and no bombs or IED or ammunition boxes were ever found or ever existed;

·         not mentioning that State Statutes Prohibit the Entering into Residential Properties unless the entry and detention is made pursuant to legal process as set out in N.J.S.A. 2A:18-53 et seq.; the purpose of following such clearly established process for residential properties is to avoid the breach of public peace;

·         not mentioning that no warrant for removal signed by a Law Division judge was obtained by the sheriff employees prior to attempting to remove Dr. Stephanatos from his residence;

·         I also bring to the Court’s attention of NJ Rev Stat § 2C:33-11.1 (2013) - Certain actions relevant to evictions, disorderly persons offense that deal specifically with residential real properties.   That statute also states that a Warrant is required for residential properties.  The sheriff committed a criminal offense in violation of that statute by entering Defendant’s property without a warrant for removal and removing him from his residential premises.

·         A person commits a disorderly persons offense if, after being warned by a law enforcement or other public official of the illegality of that action, the person (1) takes possession of residential real property or effectuates a forcible entry or detainer of residential real property without lawful execution of a warrant for possession in accordance with the provisions of section 2 of P.L.1974, c.47 (C.2A:42-10.16) or without the consent of the occupant solely in possession of the residential real property.  NJ Rev Stat § 2C:33-11.1.  Based on this criminal statute, the Passaic County sheriff committed a disorderly persons offence.

·         not mentioning to the Grand Jurors that Victor A. D’Agostino’s duties were not that of a sworn law enforcement officer;

·         failing to provide proofs that the Defendant knew that the sheriff employees were in fact sworn law enforcement officers;

·         the intentional lying by Lucas that he injured his shoulder requiring 6 pins, when he in fact injured his shoulder and elbow after playing competitive football for many years and lifting heavy weights and doing body building;

·         the false (and highly prejudicial) allegations that Dr. Stephanatos had threatened Robert Del Vecchio, Esq. with violence few days prior to the “eviction”;

·         the false (and highly prejudicial) allegation that Dr. Stephanatos did not want to pay taxes;

·         not presenting evidence that Dr. Stephanatos only wanted a simple stay of the proceedings (as is allowed by state law, See § 2A:42-10.6. Judge to use sound discretion in issuing warrants or writs for removal or writs of possession; stay of issuance; limitation:  if it shall appear that by the issuance of the warrant or writ the tenant will suffer hardship because of the unavailability of other dwelling accommodations the judge may stay the issuance of the warrant or writ) so that he can file and adjudicate his appeals and to save his home and home-based business from an illegal eviction;

·         failing to mention that at no time did the sheriff employees told Dr. Stephanatos that he was under arrest;

·         not presenting evidence of the illegal background leading up to the charges perpetrated by the conspirators Robert Del Vecchio, ATF, and others;

·         not mentioning the fact that this was a civil matter based upon profit for the same;

·         not mentioning that Dr. Stephanatos fully owned his real estate property and was used as his home and small business and that his business (Metropolitan Environmental Services) was not part of any eviction proceedings;

·         not mentioning that state case law allowed Dr. Stephanatos not to lose his home;

·         not mentioning that no state or federal court has the authority to take private homestead property and deliver it to a private entity as it is in violation of the Fifth Amendment to the Federal Constitution and Article I, par. 20 of the state constitution;

·         not mentioning that Dr. Stephanatos’ property was over-assessed by more than 40 percent since 1995 and no taxes were legally due;

·         that there is no explicit provision in the tax sale certificate asserting plaintiff's right to the residential premises, because ATF, LLC is a business entity and not a person (See 3519-3513 Realty LLC v. Law, 406 N.J. Super. 423 (App. Div. 2009); the residential tenancy could not have been terminated in favor of ATF

·         the failure to properly charge the grand jurors on several asserted defenses, including the defense of self and defense of dwelling, the Castle Doctrine, the defense of business, duress, outrageous government conduct, etc.;

·         the intentional failure to inform or notify the grand jurors that Dr. Stephanatos wanted to testify (based on the letter sent to the prosecutor by Mr. Herman, Esq. prior to the grand jury deliberations); thus the prosecutor interfered with the independence of the Grand Jury;

·         and no explanation was given to the grand jury of the specific violations of the law(s) and Court Rules (Sherman Act violation, tax sale law violations, fraud-on-the court, failure to provide notice, failure to adjudicate the issue of possession, obtaining ex-parte writs of possession, entering a residential property without a warrant for possession, etc.) by the conspirators and what is required to be done if there was to be legality and legitimate process, which brought Officers Lucas and D’Agostino to the defendant’s home on the day in question.

·         Add to this the constitutional violations (subject to the motion to suppress); the doctrine of “false in one, false in all” not explained to the grand jury; the fact that the grand jury was not charged as to the rights of protection by the homeowner where it involves his property (the defense of home or New Jersey’s Castle Doctrine), the protection of his business, as well as the unlawful entry by the officers on defendant’s property as they were relying on void judgments and writs due to the fraud on the court committed by Robert Del Vecchio, ATF and others.  The law of duress and self-defense and outrageous government conduct should have been charged to the grand jury by the prosecutor. 

Instead of a fair presentation, there was a biased presentation in actuality depicting the defendant as a “monster”.  The testimonies’ and “fake facts” cumulative effect was “clearly capable of producing an unjust result,” R. 2:10-2, requiring a reversal of defendant’s indictment.  State v. Orecchio, 16 N.J. 125, 129 (1954).  

MORE EVIDENCE OF LIES AND FABRICATIONS SUBMITTED TO THE COURTS

Here is more evidence of perjured testimony and false certifications provided by the prosecutor to the appellate division:

In his certification, the prosecutor wrote that the officers lunged to the ground and one of them injured his shoulder and bicep.

However, Lucas wrote in his report that “as I entered the woods, I stumbled”.  He never wrote that he lunged to the ground.

Furthermore, D’Agostino never wrote in his reports that he lunged to the ground.  He also never testified that he lunged to the ground.

These prosecutors know that the only way to win this case is through lies and lies and more lies to the courts.  However, as the old saying goes, “you lie, you lose”.

  CONCLUSION

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

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

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

The grand jury clause of the Fifth Amendment provides that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const., Amend. V., N.J. State Const. 1947, Article I, par. 8. "Implicit in that language is the guarantee that a defendant will be indicted only upon the informed and independent determination of a legally constituted grand jury." United States v Sears, Roebuck and Company Inc., 719 F.2d 1386, 1391 (9th Cir. 1983), cert. denied, 465 U.S. 1079 (1984). "The prosecutor may not circumvent this safeguard by over-reaching conduct that deprives the grand jury of autonomous and unbiased judgment. If the grand jury is to accomplish either of its functions, independent determination of probable cause that a crime has been committed and protection of citizens against unfounded prosecutions, limits must be set on the manipulation of grand juries by overzealous prosecutors." United States v. Al Mudarris, 695 F.2d 1182, 1184 (9th Cir. 1983), cert. denied, 461 U.S. 932 (1983).

"Dismissal of an indictment is therefore warranted on constitutional grounds if prosecutorial misconduct has undermined the grand jury's ability to make an informed and objective evaluation of the evidence presented to it." Sears, 719 F.2d at 1391. "Although deliberate introduction of perjured testimony is perhaps the most flagrant example of misconduct, other prosecutorial behavior, even if unintentional, can also cause improper influence and usurpation of the grand jury's role." United States v. Samango, 607 F.2d 877, 882 (9th Cir. 1979). The Supreme Court has articulated the test as follows: Courts may dismiss indictments when the "violation substantially influenced the grand jury's decision to indict, or if there is a 'grave doubt' that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (citations omitted)

“Cumulative error” exists when “the aggregate effect of a series of errors” deprives a party of a fair legal proceeding.  In such a case, a court “need not consider whether each individual error was prejudicial.”  Torres v. Pabon, supra.

In Stephanatos, due to the significant number of cumulative errors, the grand jury and its autonomous and unbiased judgment was perverted and undermined.  There is no question that based on the above that prosecutorial wrongdoing, fraudulent conduct, perjured testimonies, fake “facts” or numerous cumulative errors prejudiced the ultimate decision reached by the Grand Jury.  The indictment must be dismissed.

I hereby certify under penalty of perjury that the foregoing statements made by me are true and correct.  I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. NJ Court Rule R. 1:4-4(b); 28 U.S.C. §1746.

Respectfully Submitted,

___________________________________

JOSHUA EPSTEIN, ESQ.

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MOTION (31) - DUE PROCESS VIOLATIONS REQUIRE AN AUTOMATIC DISMISSAL OF THE INDICTMENT BECAUSE PREJUDICE IS PRESUMED.

A due process violation occurs when "the government allows a defendant to stand trial on an indictment which it knows to be based on perjured testimony material to the return of that indictment." United States v. Basurto, 497 F.2d 781, 786 (9 th Cir. 1974). A due process violation may also arise from other types of government misconduct that "is so grossly shocking and so outrageous as to violate the universal sense of justice." United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991).

A due process violation requires an automatic dismissal of the indictment, without an assessment of the prejudicial impact of the errors, because prejudice is presumed. See Bank of Nova Scotia v. United States, 487 U.S. 250, 256-57 (1988) (when "structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair," there is a "presumption of prejudice").  Unlike the sort of misconduct before the grand jury that implicates only the Court's supervisory powers, a due process violation in connection with the grand jury is not rendered harmless through a finding of guilt by the trial jury.

United States v. Navarro, 608 F.3d 529, 539-40 (9th Cir. 2010) (finding Court's error in instructing the grand jury on the prosecutors' obligations was rendered harmless by a subsequent finding of guilt following trial, but noting that if "the error" had been "structural, it would not matter that the error was harmless, and we would reverse denial of the motion to dismiss without regard to whether Navarro's substantial rights had been affected").  Here, the prosecutor’s statements were intentionally false or with a complete reckless disregard for the truth, and the statements were material and such statements directly supported elements of the alleged offenses.  Thus, the errors here were structural, requiring the dismissal of the indictment. 

Lucas and D’Agostino’s False Testimony was Willful and Material

"Whenever the prosecutor learns of any perjury committed before the grand jury, he is under a duty to immediately inform the court and opposing counsel — and, if the perjury be material, also the grand jury — in order that appropriate action be taken." Basurto, 497 F.2d at 785-86; see also United States v. Samango, 607 F.2d 877, 884 n.8  (9th Cir. 1979) ("If evidence exists . . . which casts serious doubt on the credibility of testimony which the jurors are asked to rely upon in finding an indictment, the prosecutor has an ethical duty to bring it to their attention." ).

In paragraph 2 of section 4 of the Warrant Affidavit, Lucas “relates” to Detective Scala “that upon knocking on the front entrance door of the residence”.  See excerpt from the warrant affidavit, Defense Exhibit D-11.  This statement to Detective Scala fully corroborates Dr. Stephanatos’ statements that his front door was closed – very closed – with a lock and deadbolt closed.

However, in his June 28, 2011 report prepared by Cpl. Lucas, he writes the following: “As we proceeded toward the front door I ascented[sic] the steps and noticed the front wood door was open and a glass storm door made the interior of the house visible to me”.  “At that moment a man came from the hallway with a long object in his left hand”.

These diametrically different statements of Lucas regarding his alleged assault indicate that Lucas is lying regarding the circumstances of the alleged assault. 

Here, the evidence demonstrates that the government allowed the defendant to stand trial on an indictment they knew to be based, mostly, on perjured incomplete and misleading testimony; testimony they had elicited from the two alleged victims, Lucas and D’Agostino at the grand jury.  Much other false and fabricated testimony was also presented at the grand jury, including the testimony by Lucas that the defendants had threatened Robert Del Vecchio with violence few days prior to the eviction and that Lucas injured his shoulder and that the defendant placed an IED or an ammunition box in his front steps (all having proven to be despicable lies and fabrications). 

Defendant also provided evidence of prosecutorial misconduct, where Walter Dewey fabricated “facts” and presented them to the grand jury, including the “pointing of the gun out the window”.  The prosecutor’s statements were intentionally false or with a complete reckless disregard for the truth, and the statements were material and such statements directly supported elements of the alleged offenses.

The Fabrications and Intentional Omissions of Walter Dewey

The grand jury prosecutor, Walter Dewey, mislead the grand 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 the Defendant standing behind a glass storm door and that he never opened the door.  No “window” was ever mentioned by the two individuals, as no window exists in the front porch of the dwelling.  See attached image of the front door of the dwelling, showing that no window is present.  Please note that this is a picture of the front of the home post-seizure and  all the planters and drapes have been removed.

(Defendant denied that he was standing behind the storm door:  he has stated many times that he was in his office doing his business, he has the computer records to prove it, those records were submitted to the prosecutors, and he kept the doors of the home locked with a deadbolt and all drapes closed).

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.

In addition to the perjured testimony by Lucas and D’Agostino, there have been numerous legal and factual deficiencies in the indictments against the Defendant.  The prosecutor blatantly lied to the grand jurors regarding what actually happened at the scene and also mislead the grand jurors by eliciting prejudicial testimony (such as the defendant had threatened Robert Del Vecchio (false allegation), that the Defendant did not want to pay taxes (false allegation), that Defendant pointed a gun out the window (a blatant lie), etc.  The grand jurors were also given incorrect instructions or no information was provided regarding elements of the alleged crimes;  and no defenses were ever presented, which tainted the entire deliberative process.  The prosecutor also refused to let the grand jurors know that Defendant asked to testify before the grand jury, and refused to provide them with the email and telephone records of the Defendant that proved his whereabouts, and therefore, interfered with the independence of the grand jury.  As a result, the charges contained in these indictments cannot be sustained at trial.

The New Jersey Grand Jury Law

The grand jury both “acts as a sword so that those who are suspected of wrongdoing may be properly brought to trial, and as a shield to protect the people from arbitrary prosecution.”  State v. Smith, 269 N.J.Super. 86, 93, 634 A.2d 576 (App. Div. 1993).  In State v. Murphy, 110 N.J. 20, 538 A.2d 1235 (1988) the New Jersey Supreme Court held that it is the court’s obligation to exercise its supervisory authority over the grand jury process to ensure that the selection of the grand jurors and the presentation are fair and unbiased.

“Unless the prosecutor’s misconduct is ‘extreme and clearly infringes upon the [grand] jury’s decision-making function’ an otherwise valid indictment should not be dismissed.”  Id. citing State v. Buonadonna, 122 N.J. 22, 48-49, 583 A.2d 747 (1991).  The dismissal of an indictment is appropriate “if it is established that the violation substantially influenced the grand jury’s decision to indict” or if there is ‘grave doubt’ that the determination ultimately reached was arrived at fairly and impartially.  Bank of Nova Scotia v. United States, 487 U.S. 250, 256 quoting United States v. Mechanik, 475 U.S. 66, 78 (1986).  “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.”  State v. Hogan, 144 N.J. 216, 236, 676 A.2d 533 (1996).

In State v. Hart, 139 N.J. Super. 565, 567-68 (App. Div. 1976).], the court said:

We have previously explained that

while a prosecutor may assist the grand jury in [a] general manner . . . he may not participate in its deliberations, or express his views on questions of fact, or comment on the weight or sufficiency of the evidence, or in any way attempt to influence or direct the grand jury in its findings -- rather, the grand jury must act independently of any outside source.

In State v. Hogan, 144 N.J. 216 (1996), the New Jersey Supreme Court said:

That is not to say, however, that the State may “deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a ‘half-truth’ ” Id. at 236.   The Court further explained that in order for the grand jury to perform its vital function of “protect[ing] persons who are victims of personal animus, partisanship, or inappropriate zeal on the part of a prosecutor[,]”

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.   If evidence of that character is withheld from the grand jury, the prosecutor, in essence, presents a distorted version of the facts and interferes with the grand jury's decision-making function.

Here, the Passaic County prosecutor attempted to influence and did influence the grand jurors in its findings by eliciting the above and other false, fraudulent, prejudicial and misleading testimony.  The prosecutor’s statements were intentionally false or with a complete reckless disregard for the truth, and the statements were material and such statements directly supported elements of the alleged offenses.

This Court has no choice but to order the dismissal of the indictment.

In addition, at least one of the two original prosecutors was responsible for inserting a false, material representation into the initial search warrant affidavit for the 687 Indian Road premises. These instances of misconduct constitute due process violations necessitating dismissal.

The Prosecutors' Fabrication of Evidence to Secure Search Warrants Violated Due Process.

As a result of government misconduct, Defendant was deprived of his Fifth Amendment right to the due process of law. The government's misconduct was intentional and, on numerous occasions, purposefully designed to undermine and frustrate the defendant’s right to a fair and impartial grand jury hearing and a fair deliberation by the grand jurors.

This misconduct began at the inception of the Lucas/D’Agostino conspiracy to fabricate charges against the defendant, to falsify sheriff investigation reports and permeated the grand jury proceedings, including the intentionally false statements and “fake evidence” provided by Walter Dewey, leading to the defendant’s indictment.

The Government's Response Fails to Refute Many Specifications of Misconduct in Defendant’s Supplemental Motions to Dismiss

In its Response (actually no response at all!), the government fails to address or effectively refute numerous specifications of misconduct set forth in the Supplemental Motion to Dismiss.  This Court did not even mention during the April 6, 2018 hearing that the State failed to respond to the new evidence provided by the Defendant.  Instead, the Court appeared to attack the Defendant, one month after the Court had granted him the right to defend himself. It appears to me that this Court is playing the advocate for the State, instead of being neutral and determines the facts and applies to law to the facts.

The prosecutors' attempt to disregard and downplay the substantial and sustained misconduct throughout the investigation, prosecution and pre-trial of this case betrays a desire to secure a "win" at any cost, even at the expense of the defendant’s right to due process. Justice mandates that the Indictment be dismissed.

I hereby certify under penalty of perjury that the foregoing statements made by me are true and correct.  I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. NJ Court Rule R. 1:4-4(b); 28 U.S.C. §1746.

Respectfully Submitted,

___________________________________

JOSHUA EPSTEIN, ESQ.