Memorandum of Law for Judgment of Acquittal
February 28, 2019
VIA USPS FIRST CLASS MAIL, FAX AND EMAIL
Passaic County Prosecutor
Administration Building
401 Grand Street
Paterson, New Jersey 07505
Attn: Stephen
Bollenbach
Assistant
Prosecutor
Re: State v. Basilis Stephanatos
Passaic County Ind. No.
11-09-0810-I
INFORMAL
BRIEF FOR JUDGMENT OF ACQUITTAL N.O.V. TO BE ENTERED UNDER R.
3:18-2 OR FOR NEW TRIAL PURSUANT TO RULE 3:20-1
Dear
Mr. Bollenbach:
Enclosed
are an original and one copy of an Informal Brief for Judgment of
Acquittal
n.o.v. to
be entered
under R. 3:18-2 or for new trial pursuant to Rule 3:20-1. A certification
of filing and service is also included.
I
am forwarding a copy of the Informal Brief directly to the Honorable James. J.
Guida, J.S.C., as reflected by the enclosed certification of service. No oral argument is requested.
Thank
you for your courtesy and cooperation.
Very truly yours,
___________________________________
Basilis
N. Stephanatos, PhD, PE, JD
cc: Hon.
James J. Guida, J.S.C.
==============================================
BASILIS N. STEPHANATOS, PHD., JD.
CERTIFICATION OF
SERVICE
Re: State v. Basilis Stephanatos
Passaic County Ind. No. 11-09-0810-I
I, Basilis N. Stephanatos, PhD, PE, JD, appearing Pro Se, certify that
on February 28, 2019, I mailed via United States Postal Service first class
mail two copies of the Informal Brief for Judgment of Acquittal n.o.v.
to be entered under R. 3:18-2 with supporting informal brief to the
Passaic County Prosecutor, 401 Grand Street, Paterson, New Jersey 07505 and one
copy to Judge James J. Guida Chambers at the Bergen County Courthouse, 10 Main
Street, 4th Floor, Hackensack, NJ 07601.
CERTIFICATION OF BASILIS N.
STEPHANATOS
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,
___________________________________
Basilis
N. Stephanatos, PhD, PE, JD
Dated: February 28, 2019
==================================================
BASILIS N. STEPHANATOS, PHD., JD.
STATE
OF NEW JERSEY
Plaintiff,
v.
BASILIS N.
STEPHANATOS,
Defendant
|
SUPERIOR COURT OF
NEW JERSEY
CRIMINAL DIVISION - BERGEN COUNTY
Indictment No. 11-09-00810-I
Criminal Action
[PROPOSED]
ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT OF ACQUITTAL N.O.V. TO
BE ENTERED UNDER R. 3:18-2
|
For good cause shown, the motion for Judgment of
Acquittal n.o.v. by Defendant
Basilis N. Stephanatos, Pro Se, in GRANTED.
IT IS SO ORDERED.
________________________________________
DATED:
March 22, 2019 HON. JAMES
J. GUIDA, J.S.C.
JUDGE OF THE BERGEN
COUNTY SUPERIOR COURT
======================================================
INFORMAL BRIEF OF DR. BASILIS N. STEPHANATOS,
PHD, JD, IN SUPPORT OF THE MOTION FOR JUDGMENT OF ACQUITTAL N.O.V. TO BE
ENTERED UNDER R. 3:18-2 OR FOR NEW TRIAL PURSUANT TO RULE 3:20-1
BACKGROUND
On
February 4, 2019, the jury asked the Court whether the statute N.J.S.A. 2C:17-2c says that the widespread
risk to five or more people includes the defendant. The statute does not say. The defense counsel argued that under the
rule of lenity,
the statute must be construed in favor of the defendant, i.e. that the risk to
five or more people does not include the defendant. This Court violated the rule of lenity and
instructed the jury that the defendant is included in the number of people at
risk being injured and the jurors returned a guilty verdict on that fourth
degree charge, while acquitted Dr. Stephanatos of four other serious second and
third degree charges. Based on the
number of jury questions and request for guidance regarding this count, it was
apparent that the jury was confused regarding this count.
The
Court acknowledged that this jury instruction created a legal issue and asked
the defense to submit a legal brief regarding the legality of that
instruction. This brief addresses this
issue and a number of other legal issues.
The brief also argues that the fourth count of the indictment must be
dismissed or the jury verdict must be vacated because the state failed to prove
its applicability of the statute in the current case or because the presentment
clause has been violated or the state failed to prove key elements of the
charges (insufficiency of the evidence).
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.
The state has frivolously
charged Stephanatos with carrying a gun while inside his own home and place of
business as the wrongful act under N.J.S.A. 2C:17-2c; Stephanatos submits
that the legislature did not intent to include the carrying a gun inside one’s
home as the illegal act under N.J.S.A.
2C:17-2c.
Finally,
highly prejudicial and erroneous instructions and presentations by both the
prosecutor and the defense attorney were made to the jurors as follows: According
to New Jersey law, a person can disobey judgments, orders or other court
process under a penalty of contempt of court and nothing more. See 2A:10-5. Civil contempt; punishment
2A:10-5.
Any person who shall be adjudged in contempt of the Superior Court by reason of
his disobedience to a judgment, order or process of the court, shall, where the
contempt is primarily civil in nature and before he is discharged therefrom,
pay to the clerk of the court, for every such contempt, a sum not exceeding $50
as a fine, to be imposed by the court, together with the costs incurred.
L.1951
(1st SS), c.344; amended 1991,c.91,s.26.
The above state law clearly
states that Stephanatos was only liable for a fine for refusing to obey a civil
court order. However, this Court made
highly prejudicial and biased statements that “it will be anarchy for failing
to obey court orders”. The statements
made to the jurors by the Court, Stephanatos’ court-appointed counsel and the
Passaic County Prosecutor were highly prejudicial and affected the jurors’
decisions in finding Stephanatos guilty on count four of the indictment.
Importantly, Stephanatos was
prevented by this Court to explain to the jury his decision to stay inside his
home and to refuse to vacate his home and place of business because he had
filed appeals and lawsuits against the antitrust conspirators American Tax
Funding, LLC, ATFH, LLC. This testimony by Stephanatos would have been
a highly probative evidence for his state of mind. This way, the jury was prevented in
discovering facts or hearing relevant testimony that would shed light into the
state of mind of Stephanatos during June 28, 2011. These acts of the Court were highly prejudicial
and unlawful, requiring a reversal of the jury verdict, acquittal notwithstanding
the verdict (n.o.v.), or a new trial.
MOTION
FOR NEW TRIAL ON COUNT FOUR OF THE INDICTMENT
The defendant also moves for
a new trial under court rule R. 3:20-1.
R. 3:20-1. Trial by
Court or Jury
The trial judge on
defendant's motion may grant the defendant a new trial if required in the
interest of justice. If trial was by the judge without a jury, the judge may,
on defendant's motion for a new trial, vacate the judgment if entered, take
additional testimony and direct the entry of a new judgment. The trial judge
shall not, however, set aside the verdict of the jury as against the weight of
the evidence unless, having given due regard to the opportunity of the jury to
pass upon the credibility of the witnesses, it clearly and convincingly appears
that there was a manifest denial of justice under the law.
If
the State failed to present evidence on one or more elements of the offense, Stephanatos
was entitled to a judgment of acquittal. State v. Cuccio, 350 N.J. Super.248, 256-57
(App. Div.), certif. denied, 174 N.J.43 (2002).
There was insufficient
direct or circumstantial evidence for a jury to find guilt under the
environmental catastrophe or widespread injury statute N.J.S.A. 2C:17-2c. Furthermore,
this Court failed to properly instruct the jury regarding the absolute legality
of carrying or keeping a gun inside a home, business or land that a person
occupies and failed to instruct the jury that a person can refuse to obey civil
court orders under a penalty of a fine for contempt of court and nothing more.
It would also be a manifest
denial of justice to allow the jury verdict to stand given the evidence and since
Dr. Stephanatos did not recklessly created any widespread risk since he did not
cause a risk of “an explosion, flood,
avalanche, collapse of a building, release or abandonment of poison gas,
radioactive material or any other harmful or destructive substance”
see N.J.S.A. 2C:17-2a by legally possessing a weapon inside his own home
(an absolutely lawful act) and by refusing to obey a civil court order (an act
punishable by contempt of court and nothing more); and since Stephanatos’ home was located in an isolated area of
Wayne where the closest neighboring house was located at least 100 feet away
and less than 5 homes were nearby and less than 5 other people were involved.
The application of N.J.S.A. 2C:17-2c to the present case represents arbitrary enforcement,
violating the Due Process Clause
“The Government violates the Due Process Clause when it takes away
someone’s life, liberty, or property under a criminal law so vague that it
fails to give ordinary people fair notice of the conduct it punishes, or so
standardless that it invites arbitrary enforcement”. Kolender v. Lawson,
461 U. S. 352 –358 (1983),
Johnson v.
United States, 576 U.S. 2551, 135 S.Ct. ___ (2015). Here, the presence of the following
examples in the statute, explosion,
flood, avalanche, collapse of a building, release or abandonment of poison gas,
radioactive material or any other harmful or destructive substance (N.J.S.A.
2C:17-2a(1) ..or purposely or knowingly, unlawfully
causes a hazardous discharge …or release or abandonment of hazardous waste, …or a toxic pollutant ((N.J.S.A. 2C:17-2a(2)) indicates
that the state legislature meant for the statute to cover only similar crimes,
rather than any crime that presents a serious potential risk of widespread injury
to five or more other people.
In
addition, both Stephanatos’ court-appointed counsel and this Court advised the
jurors that Stephanatos should have vacated his home because he was ordered to
do so by the ex-parte writ of possession. These were highly prejudicial statements that
violated Stephanatos’ due process rights and also raised the issue of
ineffective assistance of counsel.
According to New Jersey law, a person can disobey judgments, orders or
other court process under a penalty of contempt of court and nothing more. See 2A:10-5. Civil contempt; punishment
2A:10-5.
Any person who shall be adjudged in contempt of the Superior Court by reason of
his disobedience to a judgment, order or process of the court, shall, where the
contempt is primarily civil in nature and before he is discharged therefrom,
pay to the clerk of the court, for every such contempt, a sum not exceeding $50
as a fine, to be imposed by the court, together with the costs incurred.
L.1951
(1st SS), c.344; amended 1991,c.91,s.26.
The
above state law clearly states that Stephanatos was only liable for a fine for
refusing to obey a civil court order.
However, this Court made highly prejudicial and biased statements that
“it will be anarchy for failing to obey orders”. The statements made to the jurors by the
Court, Stephanatos’ court-appointed counsel and the Passaic County Prosecutor
were highly prejudicial and affected the jurors decisions in finding
Stephanatos guilty on count four of the indictment. Stephanatos moves for a new trial on Count
Four to correct the erroneous and highly prejudicial instructions and
statements made to the jurors by the defense counsel, this Court and the
Passaic County Prosecutor.
Finally, the state revised
the original grand jury indictment that had accused Stephanatos of placing a
“SLIVER METAL CONTAINER ON HIS FRONT STEPS CAUSING THE EVACUATION OF NEIGHBORS”
(See Defense Exhibit D-1, showing the original complaint filed by Lucas that
was presented before the grand jury), by now alleging that Stephanatos created
widespread risk by barricading into his home armed with a gun. Because the amendment did affect the
substance of the charges and the actual alleged illegal act charged on Dr.
Stephanatos, it offended the Presentment Clause of both the Federal and State Constitutions. If the Court refuses to dismiss the faulty
jury verdict, then a new trial is in order on count four of the indictment,
using the original indictment that accused Stephanatos of placing a “SLIVER
METAL CONTAINER ON HIS FRONT STEPS CAUSING THE EVACUATION OF NEIGHBORS” (See
Defense Exhibit D-1, showing the original complaint filed by Lucas that was
presented before the grand jury) with the intent of causing widespread risk of
injury (a fraudulent and fabricated allegation).
MOTION FOR A JUDGMENT OF ACQUITTAL N.O.V. PURSUANT
TO RULE 3:18-2
A judgment of acquittal n.o.v.
entered under R. 3:18-2 involves no issues of fact raised during the
trial. The issues before the court are a
question of law and sufficiency of the evidence.
R. 3:18-2. Motion After Discharge of Jury
If the jury returns a verdict of guilty or is discharged
without having returned a verdict, a motion for judgment of acquittal may be
made, even if not earlier made pursuant to R. 3:18-1 or it may be renewed
within 10 days after the jury is discharged or within such further time as the
court fixes during the 10-day period. The court on such motion may set aside a
verdict of guilty and order the entry of a judgment of acquittal and may so
order if no verdict has been returned.
The rule was promulgated by
the New Jersey Supreme Court in the 1969 Revision of Rules Governing the
Courts. The tentative draft comment referring to the rule states that the
provision permitting a motion for acquittal after trial is equivalent to a
motion for a judgment n.o.v. See Pressler, Current N.J. Court Rules,
Comment to R. 3:18-2.
The standard to be applied
by the trial judge in deciding a motion for an acquittal under R. 3:18-2
is the same as that which applies when a motion for acquittal is made at the
close of the State's case or at the end of the entire case. The trial judge
must decide whether the evidence is sufficient to warrant a conviction. More specifically, the trial judge must
determine whether the evidence, viewed in its entirety, be it direct or
circumstantial, and giving the State the benefit of all of its favorable
testimony as well as all of the favorable inferences which reasonably could be
drawn therefrom, is sufficient to enable a jury to find that the State's charge
has been established beyond a reasonable doubt. State v. Mayberry, 52 N.J.
413 , 436-437 (1968), cert. den. 393
U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969); State v. Reyes, 50 N.J. 454, 458-459 (1967). On such a motion the trial judge is not concerned with
the worth, nature or extent (beyond a scintilla) of the evidence, but only with
its existence, viewed most favorably to the State. Cf. Dolson v.
Anastasia, 55 N.J. 2, 5 (1969). State v. Kluber, 130 N.J. Super. 336, 327
A.2d 232 (N.J. Super. App. Div. 1974).
When the motion for judgment
of acquittal notwithstanding the verdict (n.o.v.) is made after the jury
verdict, the same standard applies, i.e., only the State’s evidence will be
considered. State v. DeRoxtro, 327
N.J.Super. 212, 224 (App. Div. 2000); State v. Speth, 323 N.J. Super. 67, 81
(App. Div. 1999); State v. Sugar, 240 N.J. Super. 148, 152-53 (App. Div. 1990);
State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974),certif. denied,
67 N.J. 72 (1975). If a defendant has been convicted of a lesser included
offense, and makes a motion for judgment of acquittal n.o.v., a different
standard applies. Because defendant has had the benefit of submission of the
lesser included charge to the jury based on proofs adduced in the defense case,
then the sufficiency of the evidence is tested by the whole record, not just
the State’s proofs, in deciding whether the conviction for the lesser included
offense can be sustained. State v. Sugar,
supra, at 153.
In reviewing a denial of a
motion for judgment of acquittal pursuant to R. 3:18-1, or a motion for judgment of acquittal n.o.v. pursuant to
R. 3:18-2,
the appellate court applies the same test as was used by the trial court. State v. Moffa, 42 N.J. 258 (1964); State v.
Johnson, 287 N.J. Super. 247, 268 (App. Div.), certif. denied, 144 N.J. 587
(1996); State v. Kluber, supra. Reversal
on the ground that the evidence was insufficient to warrant a conviction
requires acquittal. Hudson v. Louisiana,
450 U.S. 40, 43, 101 S.Ct. 970,972, 67 L.Ed.2d 30, 33 (1981); Burks v. United
States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).
THE
JURY INSTRUCTIONS ON THE FOURTH COUNT OF THE INDICTMENT
RECKLESSLY RISKING
WIDESPREAD INJURY OR DAMAGE (N.J.S.A. 2C:17-2c)
Count four of the indictment charges
the defendant with recklessly creating a risk of widespread injury or damage in
violation of a statute which provides as follows:
A person who recklessly creates a risk
of widespread injury or damage commits a crime. . .even if no such injury or
damage occurs.
In order for the defendant to be
found guilty of recklessly creating a risk of widespread injury or damage, the
State must prove the following elements beyond a reasonable doubt:
(1) that
the defendant created a risk of widespread injury or damage; and
(2) that
the defendant acted recklessly.
The first element the State must
prove beyond a reasonable doubt is that the defendant created a risk of
widespread injury or damage. The term
“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. “Serious bodily injury” means bodily injury
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.
The second element the State must
prove beyond a reasonable doubt is that the defendant acted recklessly. A person acts recklessly with respect to the
nature of his conduct or a result thereof when he consciously disregards a
substantial and unjustifiable risk. 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.
Here,
it is obvious that this Court failed to instruct the jury that it is absolutely
lawful to carry a gun inside your home or business or premises that you
occupy. The state has frivolously
charged Stephanatos with carrying a gun while inside his own home and place of
business that he occupied. 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.
Prosecutors
have used this criminal provision to pursue cases against those who have
improperly and unsafely handled hazardous materials which do not fall within
the purview of New Jersey’s hazardous waste laws. This provision has never been used to pursue
a case against someone who lawfully possess a gun inside his own home and who
does not threaten anyone and who only refuses to obey a civil court order.
The obvious purpose of these
provisions is to interdict conduct which would jeopardize many persons or
dwellings rather than one single family dwelling. We have found two reported
cases which discuss N.J.S.A. 2C:17-2
generally or 2C:17-2c
specifically. Both of these cases
illustrate the type of conduct condemned.
State v. Iron Oxide Corp., 178
N.J.Super. 303 (Law Div. 1980) dealt with the dumping of hazardous
waste. In State In The Interest of D.B., 181 N.J.Super. 586 (Cty. Ct. 1981),
the juvenile had placed a smoke bomb in a high school locker. See also State
v. Colbert 245 N.J. Super. 53 (N.J. Super. App. Div. 1990) where the defendants
had been transporting and storing hazardous waste without authorization from
the Department of Environmental Protection and a massive fire at a Newark
warehouse was caused as a result. Other
people have been charged under that statute for:
·
Riding a vehicle into a crowd;
·
Recklessly driving while intoxicated and
leading police into a chase;
·
Discharging fireworks into a crowd;
·
Causing fire that threatens more than five
people;
·
Storing large amounts of explosive gunpowder
that could affect several homes;
·
Firing a shotgun into wooded area near a
school;
·
Risking injury to bus passengers by removing
his hands from the wheel;
·
operating an unauthorized sanitary landfill;
·
propane explosion that severely damaged
several homes and forced the evacuation of nearly 1,000 residents;
·
NJ school teacher caused damage to the public
address system, and to the gas, electrical, and water utility systems at the
school;
·
arson, intentionally detonating explosive
devices and possession of two pipe bombs inside his home;
·
naked man poured 17 gallons of diesel fuel on
himself at a New Jersey gas station and tried to light the fuel on fire;
·
shooting two men and causing a panic at the
Newport Centre mall in Jersey City;
·
car explosion caused by volatile chemicals
smuggled home from the corporation where the suspect works as a chemist.
·
diner owner hired his friend to burn it down
last month so he could collect on an insurance claim;
·
pouring gasoline on personal belongings
inside a house during domestic dispute;
All of these cases involved acts
(not failure to act, as in the Stephanatos case) which endangered or could
endanger many more than one other person.
Failure to obey a civil court order does not fall (not even close) into
these types of acts or the acts envisioned by the state legislature “explosion, flood, avalanche, collapse of a
building, release or abandonment of poison gas, radioactive material or any
other harmful or destructive substance” see NJSA 2C:17-2a(1) or “purposely or
knowingly, unlawfully causes a hazardous discharge… or who, purposely or
knowingly, unlawfully causes a release or abandonment of hazardous waste … or a
toxic pollutant” see N.J.S.A.
2C:17-2a(2).
These criminal provisions
are particularly effective because they are not limited to one form of
pollution, but can be used for the release or abandonment of any "harmful
or destructive substance." N.J.
STAT. ANN. § 2C:17-2a. While such broad provisions may be
vulnerable to overkill, criminal prosecutions under this statute are tempered by the general penal law
proscription against "de minimus" prosecutions. See N.J.S.A.
2C:2-11.
Here, no harmful or
dangerous substance was released into the environment or inside Stephanatos’
home or was threatened to be released at any time; therefore, the N.J.S.A. 2C:17-2c statute is
inapplicable to the facts of the Stephanatos’ case. Stephanatos, in fact, was concerned for his own
safety when the snipers placed their red dots of their assault rifles onto his
chest. Stephanatos never did anything to
cause a catastrophe or widespread injury as is required by the statute. These frivolous charges must be dismissed as
a matter of law.
Statute permitting dismissal of prosecution of de
minimis infractions can be used to protect against frivolous prosecutions
under the harassment statute. State v. Hoffman, 149 N.J. 564,
586-87 (1997).
Here,
as will be analyzed in later sections, Dr. Stephanatos did not even perform any
of the acts that are intended to be criminalized by the legislature under N.J.S.A. 2C:17-2. Thus, the prosecution under this statute is
frivolous, to say the least and the fourth count should have been dismissed
under NJSA 2C:2-11 as well.
FACTUAL BACKGROUND REGARDING THE ISSUE
OF INEFFECTIVE ASSISTANCE OF COUNSEL FOR COUNT FOUR OF THE INDICTMENT
Prior
to the trial, Dr. Stephanatos met with his court-appointed counsel, Mr. James
Seplowitz and his partner, Mr. Jason Foy, and discussed among other things,
count four of the indictment. Mr.
Seplowitz stated that this count four is a “bull..t charge” and he wanted to
focus his efforts on the other four charges that carry multiyear mandatory
prison sentences.
Dr.
Stephanatos indicated that even if the writ was not void ab initio, he was only
asked to vacate the premises and nothing more.
Dr. Stephanatos indicated that the officers did not have a warrant for
removal and the officers testified under oath that they did not have a warrant
for removal. Mr. Stephanatos indicated
that after he refused to vacate the premises, the options available to the
antitrust conspirators would have been to file for a contempt of court or sue
Stephanatos for forceful detainer in the Law Division and obtain a warrant for
his removal.
Mr.
Foy stated that Mr. Seplowitz inquiries regarding the issues raised by
Stephanatos. However, Mr. Seplowitz,
during trial stated to the jurors that Stephanatos should have vacated his home
and that it was wrong of him to stay inside his home. These statements made by Seplowitz to the
jurors were not only erroneous but were also highly prejudicial because they
gave the jurors the impression that it is a crime to refuse to obey a civil
court order. The State of New Jersey has
not criminalized the refusal to obey a civil court order; therefore, the
statements made by Mr. Seplowitz provide proof of ineffective assistance of
counsel on this count.
To
this date, Mr. Seplowitz has not provided an explanation to Stephanatos
regarding his statements to the jurors.
LEGAL ARGUMENTS
1. THE
AMENDMENT TO COUNT FOUR OF DEFENDANT’S INDICTMENT WAS A VIOLATION OF
DEFENDANT’S RIGHT TO GRAND JURY PRESENTMENT UNDER THE FEDERAL AND NEW JERSEY
CONSTITUTIONS
It
is important to note that the state originally (in September 2011) obtained a
grand jury indictment on count four by claiming that Dr. Stephanatos created a
widespread risk of injury “by placing an explosive device in his porch”. However, during hearings before Judge Filko
in February 2012, Dr. Stephanatos asserted that these were fraudulent charges
and that the alleged “explosive device” was a safe scientific instrument to be
picked up by the vendor, Pine Environmental, Inc. on June 28, 2011.
After
these revelations, the then prosecutor Peter Roby did his due diligence and
confirmed what Dr. Stephanatos told the court.
At the next hearing, Mr. Roby did confirm with the court that he had
talked to the vendor, Pine Environmental, Inc. who indicated that they were
planning picking up the rental instrument that day (they had missed the
original pickup day of June 27, 2011).
Subsequent
to these developments, the prosecutors failed to go back to the grand jury and
obtain a superseding indictment on that count.
Instead, the state changed the “theory” of crime that allegedly Dr.
Stephanatos recklessly created a widespread risk of injury by barricading
himself inside his home armed with a deadly weapon. Defendant submits that the legislature’s
intent was that the 2C:17-2c statute
not to be applied to the revised count four of the indictment, as no
environmental releases, spills, fires, explosives or other catastrophes are
involved. If that was the case, the
state could charge every homeowner who owns weapons with causing widespread
injury to other people.
Since
the state failed to obtain a superseding indictment from the grand jury, the
Count Four of the indictment must be dismissed as a matter of law. It was in violation of Dr. Stephanatos’ right
to grand jury presentment under the United States Constitution and the New
Jersey Constitution. The New Jersey
Supreme Court authority upon which Dr. Stephanatos relies is State v. Todd Dorn, 182 A.3d 938 (N.J. 2018) (A-54-16; 078399), decided April 25, 2018,
where the court held that “ The amendment
to count two of defendant’s indictment was a violation of defendant’s right to
grand jury presentment under the New Jersey Constitution”.
The
court said:
The New Jersey Constitution provides
that “[n]o person shall be held to answer for a criminal offense, unless on the
presentment or indictment of a grand jury.” N.J. Const.art. I, ¶ 8.That right
is satisfied where the indictment informs the defendant of the offense charged
against him, so that he may adequately prepare his defense, and is sufficiently
specific both to enable the defendant to avoid a subsequent prosecution for the
same offense and to preclude the substitution by a trial jury of an offense
which the grand jury did not in fact consider or charge. To meet those
criteria, an indictment must allege all the essential facts of the crime. Thus,
the State must present proof of every element of an offense to the grand jury
and specify those elements in the indictment.
A “court may amend the indictment . . . to correct an error in form or
the description of the crime intended to be charged .. .provided that the
amendment does not charge another or different offense from that alleged.”
R.3:7-4. But the court may not do so where an amendment goes to the core of the
offense or where it would prejudice a defendant in presenting his or her
defense.(pp. 13-16).
Under
the federal constitution, the prohibition is based on the Presentment Clause of
the Fifth Amendment, which guarantees in relevant part 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.”
U.S. Const. amend. V. The Supreme Court has interpreted this provision to
mean that “after an indictment has been returned[,] its charges may not be
broadened through amendment except by the grand jury itself.” Stirone v. United States, 361 U.S. 212,
215-16 (1960); accord Russell v.
United States, 369 U.S. 749, 770 (1962) (holding that an indictment may not
be “amended except by resubmission to the grand jury”); Ex parte Bain, 121 U.S. 1, 9-10 (1887).
Here,
the original alleged offence was the placement of a “SLIVER METAL CONTAINER ON
HIS FRONT STEPS CAUSING THE EVACUATION OF NEIGHBORS” (See Defense Exhibit D-1,
showing the original complaint filed by Lucas that was presented before the
grand jury) in Stephanatos’ porch. The
statute 2C:17-2c could be applied to
a situation like that, assuming that the state could prove beyond any doubt that
the IED was in fact an IED and not a business rental to be picked up by a
vendor. However, when a person stays
inside his home where he has legally owned guns and does not threaten anyone
and not hold any deadly guns, cannot possibly be causing a risk of widespread
injury to anyone by doing so. The
statute 2C:17-2c has been applied for
environmental crimes, setting of fires, explosives, setting of fireworks,
firing a shotgun near schools, storing gunpowder that could create a widespread
explosion risk, etc..
But
nowhere is there a case where a person stays inside his own home and does
nothing and that somehow this creates a risk of widespread injury to anyone,
let alone to five or more people. The
Court here changed the indictment to include a much different alleged offense
(i.e., from alleging the placement of a “SLIVER METAL CONTAINER ON HIS FRONT
STEPS CAUSING THE EVACUATION OF NEIGHBORS” (See Defense Exhibit D-1, showing
the original complaint filed by Lucas that was presented before the grand jury)
to his porch to holding a gun inside his home, an act that is 100% legal in
this state)
and prejudiced the defendant by failing to give the proper instructions to the
jury regarding the legality of possessing a gun inside someone’s home and in
presenting his defense and also confused the jury, considering that all jury
questions were relating to the Count Four of the revised count four of the indictment. In fact, the state failed to provide ANY
EVIDENCE at the trial that Dr. Stephanatos was in fact in possession of a
deadly weapon inside his home and that he threatened any sheriff officer at any
time. The state’s own witnesses
testified that they never saw Stephanatos holding a gun and never heard him
threatening any officer or anyone else.
Risk of widespread injury cannot be possibly created under these facts;
the state failed to meet its burden on that element and the jury verdict must
be set aside as a matter of law.
Had
the state proceeded to trial under the original count four of the indictment,
Stephanatos would have been found not guilty, because the alleged “SLIVER METAL
AMMUNITION BOX” was in fact a business rental instrument to be picked up by the
equipment vendor, Pine Environmental, Inc.
Since the Court’s amendment of the original indictment went to the core
of the alleged unlawful act of the defendant, the Court had no authority to
make that amendment and the original count four of the indictment should have
been tried before the jury.
2. THE DEFENDANT IS NOT INCLUDED IN THE
COUNT OF PEOPLE IN N.J.S.A. 2C:17-2C
THAT REQUIRES SERIOUS BODILY INJURY TO FIVE OR MORE PEOPLE. N.J.S.A.
2C:17-2 MUST BE LIMITED TO THE VIOLATION(S) IDENTIFIED IN THE STATUTE’S
FIRST CLAUSE(S) ((A)(1) AND (A)(2) OR ROUGHLY SIMILAR ACTS
One
of the issues before the Court, whether N.J.S.A. 2C:17-2c means serious bodily injury to five or more people
to also include the defendant in that count of five people is a question of
law.
Familiar
principles of statutory construction guide the Court’s analysis. The
Legislature directs that the words and phrases of its statutes shall be read
and construed in their context, and shall, unless inconsistent with the
manifest intent of the legislature or unless another or different meaning is
expressly indicated, be given their generally accepted meaning, according to
the approved usage of the language. N.J.S.A.
1:1-1. The Court’s objective is to determine the meaning of the statute to
the extent possible by looking to the Legislature s plain language. Gandhi, supra, 201 N.J. at 176-77; State v.
Smith, 197 N.J. 325, 332-33 (2009); State v. Froland, 193 N.J. 186, 193-194
(2007); DiProspero v. Penn, 183 N.J. 477, 492 (2005). If a statute’s
language is unambiguous, then the Court’s interpretive process is over. Gandhi, supra, 201 N.J. at 177
(quotation omitted); DiProspero, supra,
183 N.J. at 492-93. It is only when a statute’s language is ambiguous that
the Court should resort to extrinsic aids, such as legislative history,
committee reports, and contemporaneous construction. DiProspero, supra, 183 N.J. at 492-93 (quotation omitted).
Guided
by these principles, the better construction of the statute is that the term widespread injury or damage means
serious bodily injury to five or more other
people or damage to five or more other
habitations or to a building which would normally have contained 25 or more
persons at the time of the offense.
That
conclusion is reflected in the Legislature’s use of the legal predicate, which
is the component of statutory language that directs that the legal subject act
in the manner prescribed by the legislature . . . [and] is the verb which
directs or permits action or inaction. 1A
Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction
21:8 (7th ed. 2009).
N.J.S.A. 2C:17-2 contains several legal predicates
under sections (a), (b), (c) and (d) directing the conduct of residents of the
state:
2C:17-2. Causing or Risking Widespread Injury
or Damage.
a. (1) A person who,
purposely or knowingly, unlawfully causes an explosion, flood, avalanche,
collapse of a building, release or abandonment of poison gas, radioactive
material or any other harmful or destructive substance commits a crime of the
second degree. A person who, purposely or knowingly, unlawfully causes
widespread injury or damage in any manner commits a crime of the second degree.
(2)A person who,
purposely or knowingly, unlawfully causes a hazardous discharge required to be
reported pursuant to the "Spill Compensation and Control Act," P.L.
1976, c.141 (C.58:10-23.11 et seq.) or any rules and regulations adopted
pursuant thereto, or who, purposely or knowingly, unlawfully causes a release
or abandonment of hazardous waste as defined in section 1 of P.L. 1976, c.99
(C. 13:1E-38) or a toxic pollutant as defined in section 3 of P.L. 1977, c.74
(C. 58:10A-3) commits a crime of the second degree. Any person who recklessly
violates the provisions of this paragraph is guilty of a crime of the third
degree.
b. A person who
recklessly causes widespread injury or damage is guilty of a crime of the third
degree.
c. 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. A violation of this
subsection is a crime of the third degree if the risk of widespread injury or
damage results from the reckless handling or storage of hazardous materials. A
violation of this subsection is a crime of the second degree if the handling or
storage of hazardous materials violated any law, rule or regulation intended to
protect the public health and safety.
The
statute in clause (a)(1) specifically deals with explosion, flood, avalanche, collapse of a building, release or
abandonment of poison gas, radioactive material or any other harmful or
destructive substance. In addition
the statute in clause a(2) specifically deals with “a person who, purposely or knowingly, unlawfully causes a hazardous
discharge” “or who, purposely or knowingly, unlawfully causes a release or
abandonment of hazardous waste” “….or a toxic pollutant”. The statute does not specifically charge a
homeowner who lawfully owns guns and he is located inside his home as risking
widespread injury to other people or other property.
In
addition, the controlling term is “widespread”.
Here, there was just a single, isolated residence of Dr. Stephanatos,
located in a heavily wooded area of Wayne, New Jersey where less than 5 people
and less than 5 buildings were located in at least 200 feet away. So, the state failed to prove beyond any
doubt that there was a risk of “widespread” risk of injury to other
people. Furthermore, the evidence
presented at trial by the State’s own witnesses (Officer Celix, and the SWAT
team commander) that Dr. Stephanatos never held a deadly weapon and never
threatened anyone and certainly did not threaten any sheriff officer. These were the actual facts that the jury had
in front of them and found Dr. Stephanatos not guilty of such fabricated
charges. Refusing to vacate a home where
he is asking for a stay is not a reckless act that could cause widespread injury
to anyone; and certainly the NJSA 2C:17-2
statute does not deal with such situations as the present case, otherwise the
legislature would have stated so.
The
Legislature’s choice to first explicitly state the results of illegal acts (explosion, flood, avalanche, collapse of a
building, release or abandonment of poison gas, radioactive material or any
other harmful or destructive substance) is proof that all other non-similar
means must be excluded. See Pine Belt Chevrolet v. Jersey Cent. Power,
132 N.J. 564, 578 (1993). As used in the statute at issue, the structure
confirms the Legislature’s intent that the legislature talks about widespread damage
to other people’s property or injury to other people via specific acts and
excludes the legal possession of a lawful gun inside someone’s home as an
illegal act or chargeable offence under this statute where the defendant never
threatened anyone and never possessed or knowingly displayed the firearm to
no-one. 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.
It
is extremely important to note that the statute’s four clauses address the same
circumstances explicitly stated in clause (a), i.e., the ones that deal with explosion, flood, avalanche, collapse of a
building, release or abandonment of poison gas, radioactive material or any
other harmful or destructive substance. The second, third and fourth clauses simply
refer to different degrees of mens rea, i.e., recklessness as opposed to
purposely or knowingly required under clause 2C:17-2(a)(1) and (2). Therefore, Dr. Stephanatos could have only
been charged under clause 2C:17-2c
only if his acts included “explosion,
flood, avalanche, collapse of a building, release or abandonment of poison gas,
radioactive material or any other harmful or destructive substance” hazardous
discharge” “or unlawfully causes a release or abandonment of hazardous waste”
“…or a toxic pollutant”.
See
also Begay v. United States, 553 U.S. 137
(2008):
(i)
Clause (ii)’s listed
examples—burglary, arson, extortion, and crimes involving the use of
explosives—should be read as limiting the crimes the clause covers to those
that are roughly similar, in kind as well as in degree of risk posed, to the
examples themselves. Their presence in the statute indicates that Congress
meant for the statute to cover only similar
crimes, rather than every
crime that “presents a serious potential risk of physical injury to
another,” §924(e)(2)(B)(ii).
It
is Dr. Stephanatos’ position that N.J.S.A.
2C:17-2 must be limited .to the violation(s) identified in the statute’s first
clause(s) ((a)(1) and (a)(2)), otherwise the state would charge a person with
all sorts of acts and claiming that the statute intended to cover the legal
possession of guns inside someone’s home, like in this case.
If
N.J.S.A. 2C:17-2(c) prohibits all
sorts of actions (or inactions in this case), then the Legislature’s language
in the first clause would have no meaning. When construing a statute, [l]egislative
language must not, if reasonably avoidable, be found to be inoperative,
superfluous or meaningless. Franklin Tower One, L.L.C. v. N.M., 157 N.J.
602, 613 (1999) (quoting In re Sussex County Mun. Utils. Auth., 198 N.J. Super.
214, 217 (App. Div. 1985)); see also Buck v. Henry, 207 N.J.377, 390 (2011); In
re Attorney Gen.’s Directive on Exit Polling: Media & Non-Partisan Pub.
Interest Groups , 200 N.J.283, 297-98 (2009); DKM Residential Props. Corp. v.
Twp. of Montgomery, 182 N.J.296, 307 (2005). Dr. Stephanatos’ construction of N.J.S.A. 2C:17-2 gives meaning to all of
the statute’s language, and thereby effects the intent of the Legislature.
Moreover,
if N.J.S.A. 2C:17-2 precludes every
possible act, a citizen would have to have been placed on notice that possessing
legal weapons inside his home without more would now be considered by the state
as being a criminal act that would cause widespread damage. This would have been an absurd result. See State
v. Lewis, 185 N.J. 363, 369 (2005) ( [A]
court should strive to avoid statutory interpretations that lead to absurd or
unreasonable results. (quoting State v. Gill, 47 N.J. 441, 444 (1966))); Twp.
of Pennsauken v. Schad, 160 N.J. 156, 170 (1999). Dr. Stephanatos’ construction
of N.J.S.A. 2C:17-2 is thus consonant
with established principles of statutory construction.
3. DR. STEPHANATOS DID NOT CREATE A RISK OF WIDESPREAD
INJURY BY FAILING TO VACATE HIS HOME AND FOR ASKING FOR A STAY
The jury apparently found
the Passaic County sheriff officers on the scene not credible and returned a
not-guilty verdict on the four (4) serious level 2 and level 3 charges that
somehow Stephanatos pointed a gun at the officers or that he was possessing a
weapon for unlawful purpose or that he somehow was hindering his own apprehension. It took the jurors an hour to return a
non-guilty verdict on these four charges.
The jurors focused entirely on the fourth count: risking widespread
injury to five or more persons, N.J.S. 2C:17-2c.
Here, there was no evidence
presented to the jury that Stephanatos even knew that four officers were
dispatched to the scheduled eviction on June 28, 2011. In fact, Captain Fred Ernst testified that he
went along as a supervisory role and nothing more. The officers testified that typically one or
two officers handle these types of evictions.
Captain Ernst also testified that the officers made an effort to hide
their three sheriff vehicles so that they do not overwhelm Dr. Stephanatos. Therefore, Dr. Stephanatos at no time did he
know that four officers were dispatched and never saw four officers outside his
home and never saw their sheriff vehicles because they were intentionally
hidden.
There was no evidence
presented at trial that Stephanatos purposely or knowingly barricaded with a
deadly weapon in his own home. In fact,
the testimony by officer Calix and the SWAT team commander was that nobody saw
Stephanatos holding any weapon or threatening any officer. As the defense lawyer stated in his
summation, “Dr. Stephanatos was only armed with a phone and his computer that
day”, as is evidenced by the numerous emails and emergent stay motions and
phone calls made by Dr. Stephanatos. Dr.
Stephanatos’ behavior cannot be possibly judged as “reckless” to the point that
created a risk of widespread injury to anyone.
THE OFFICERS
TESTIFIED THAT THEY HAD NO WARRANT FOR REMOVAL
Furthermore, the officers
testified that they had no warrant for removal;
they only had an ex-parte writ of possession that only required
Stephanatos to vacate his home. However,
this is not a reckless conduct, i.e. the failure to vacate the premises. The orderly legal process would have been to
cite Stephanatos for contempt of court for refusal to vacate his home; another
option would have been for the plaintiff to file a suit in the law division for
an ejectment action. This was the legal
process to be followed. In fact, state
law prohibits the entering of residential properties without a warrant for
removal. Instead, the sheriff officers
went crazy and saw bombs and pointing guns and ammunition dumps everywhere; but
none of that were ever discovered, they were simply fabrications, lies or
exaggerations by the lying officers; this behavior by the officers was reckless and
not Stephanatos’ who decided to refuse to vacate his home and place of
business, absent a warrant for removal or a contempt of court warrant. It appears that this Court claims that
because Stephanatos followed the above legal strategy, he somehow created the
risk of widespread injury. This is
simply ludicrous and failure to obey a civil court order is not within the acts
contemplated by the state legislature in N.J.S.A.
2C:17-2c.
DR. STEPHANATOS DID NOT CREATE A RISK OF
WIDESPREAD INJURY BY FAILING TO VACATE HIS HOME AND FOR ASKING FOR A STAY
Stephanatos
did not consciously disregard a substantial and unjustifiable risk by failing
to vacate his home. Failure to do
anything, creates no risk to no one.
What was the “widespread risk of injury” that allegedly Stephanatos
caused by staying inside his home with his doors locked?: the answer is: none whatsoever. Perhaps this Court believes that Stephanatos
should have vacated his home otherwise there would be “anarchy” (highly prejudicial
comments that this Court used in previous sessions); however, refusing to obey
a civil court order can only lead to contempt of court or a suit for ejectment
and nothing more.
According
to New Jersey law, a person can disobey judgments, orders or other court
process under a penalty of contempt of court and nothing more. See 2A:10-5. Civil contempt; punishment
2A:10-5.
Any person who shall be adjudged in contempt of the Superior Court by reason of
his disobedience to a judgment, order or process of the court, shall, where the
contempt is primarily civil in nature and before he is discharged therefrom,
pay to the clerk of the court, for every such contempt, a sum not exceeding $50
as a fine, to be imposed by the court, together with the costs incurred.
L.1951
(1st SS), c.344; amended 1991,c.91,s.26.
The above state law clearly
states that Stephanatos was only liable for a fine for refusing to obey a civil
court order, after an adjudication of contempt proceedings. This would have bought valuable time to
prosecute his appeals and other pending lawsuits. That was Stephanatos’ legal strategy.
Here,
the State has charged Stephanatos with recklessly creating a widespread risk of
injury or damage for refusing to obey a civil court order that only carries a
penalty of a fine. This is a
ridiculously absurd allegation. Even
worse, the state used an inapplicable statute on count four that is applicable
only in situations where “a
person purposely or knowingly, or recklessly unlawfully causes an explosion,
flood, avalanche, collapse of a building, release or abandonment of poison gas,
radioactive material or any other harmful or destructive substance
2C:17-2a(1). None
of that is applicable in this case, as Stephanatos did not cause any of these
acts or similar acts.
In a recent case that
involves an identical statute to 2C:17-2, the Pennsylvania Appellate Division
has decided the case of Commonwealth v.
McCoy, 2018 PA Super 305, holding that growing marijuana in one’s home and
the corresponding risk of fire do not provide enough evidence to support a
conviction for Risking a Catastrophe or Recklessly Endangering Another Person. Appellant appealed his convictions for
risking a catastrophe and recklessly endangering another person based on his
marijuana growing operation and the court found the grow operation created a
fire hazard but that creating a fire hazard did not equate with risking a
catastrophe and the commonwealth failed to prove that appellant created the
potential for widespread injury or damage or recklessly endangered another
person. Reversed.
In
addition, 18 Pa.C.S.A. § 2705 provides:
“[a] person commits a misdemeanor of
the second degree if he recklessly engages in conduct which places or may place
another person in danger of death or serious bodily injury.”
To
be convicted of REAP, one must have a conscious disregard of a known risk of
death or great bodily harm to another person. The apparent ability to
inflict harm is not sufficient to convict someone of REAP. Unlike most crimes,
this is not a specific intent crime. As such, it is easier for the Commonwealth
to prove the mens rea
for REAP which is, unsurprisingly, recklessness.
The Superior Court Reverses the Convictions for REAP and
Risking a Catastrophe.
After
reviewing the record, the Superior Court reversed the convictions for REAP and
Risking a Catastrophe. The Superior Court opined that though the defendant’s
actions created a fire hazard, the record did not support that it had the
potential for widespread injury or damage. Specifically, because he lived alone
and the closest neighboring home was not in real danger of being engulfed by a
potential fire from his house, he had not taken actions which sufficiently
risked a catastrophe to justify a conviction under the statute.
Similar
to McCoy, supra, he
had not taken actions which sufficiently risked a catastrophe to justify a
conviction under the statute. On the contrary, it was the officer’s
behavior that created the risk of widespread injury: the four officers came to
Stephanatos’ residence by carrying MI-16 assault rifles with the specific
intent to remove from his home, although they only had a writ of possession and
not a warrant for removal – they were the aggressors and not Dr.
Stephanatos. Furthermore, their version
of the events was immediately discredited by the 12 jurors in their speedy and
unanimous acquittal of Dr. Stephanatos from the allegations of assault and gun
possession and hindering apprehension. Thus, there is no evidence presented by the
state that Dr. Stephanatos acted recklessly and created a widespread risk of
injury to five or more people.
It is also noteworthy, that it is the
sheriff regulation in the state of New Jersey that law enforcement officers are
prohibited from using police powers for private purposes, like here where the
officers took it upon themselves to “secure the home” ahead of the scheduled
9:00 am eviction. See for example the
Camden County sheriff manual:
III. REGULATIONS
All employees of the
Sheriff's Office are generally prohibited from working in any of the following
situations, except under special circumstances.
4. As a process server,
bill collector or any employment where police powers may be used for private
purposes.
It
is important to note that the sheriff officers were paid more than $10,000 for
their law enforcement services to Robert Del Vecchio and American Tax Funding,
LLC, proving that their purpose that day was a private law-enforcement purpose
and not a public one.
4. IDENTICAL
OR SIMILAR STATUTES FROM OTHER STATES
Applying
statutes that are identical or very similar to the statute before the Court,
courts of other states have reached the same conclusions.
For
example, Section 2305 of the Delaware criminal code is an identical statute
named: Causing or risking catastrophe; ecological catastrophe:
Section
2305. Causing or Risking Catastrophe; Ecological Catastrophe
(a) Causing Catastrophe.
(1) Offense Defined. A person commits an
offense if the person causes a catastrophe by fire, flood, avalanche, collapse
of a building, bridge, or tunnel, use of a catastrophic agent, unauthorized
disposal of solid waste, or by any other means of causing potentially widespread
injury or damage.
(2) Grading. The offense is:
(A) a
Class 2 felony if the catastrophe is knowingly caused.
(B) a
Class 4 felony if the catastrophe is recklessly caused.
(b) Risking Catastrophe.
(1) Offense Defined. A person commits an
offense if the person recklessly creates a risk of catastrophe by any of the
means described in Subsection (a)(1).
(2) Grading. The offense is a Class 7
felony.
(c) Threatening to Cause Catastrophe.
(1) Offense Defined. A person commits an
offense if the person threatens to cause a catastrophe using any of the means
described in Subsection (a)(1).
(2) Grading. The offense is a Class 8
felony.
(d) Failure to Prevent Catastrophe.
(1) Offense Defined. A person who
recklessly fails to take reasonable measures to prevent or mitigate a
catastrophe commits an offense if the person:
(A) knows
that he or she is under an official, contractual, or other legal duty to take
such measures; or
(B) did
or assented to the act causing or threatening the catastrophe.
(2) Grading. The offense is a Class A
misdemeanor.
(e) Ecological Catastrophe. A person
commits an offense if the person engages in any of the acts described in
Subsections (a)–(d), but in relation to an ecological catastrophe.
(1) Grading. The grade of the offense:
(A) for
causing an ecological catastrophe is:
(i) a
Class 6 felony if knowingly caused; or
(ii) a
Class 7 felony if recklessly caused.
(B) for
risking an ecological catastrophe is a Class B misdemeanor.
(C) for
threatening to cause an ecological catastrophe is a Class C misdemeanor.
(D)
for failure to prevent an ecological catastrophe is a Class D misdemeanor.
Under
Delaware Section 2305, the definition of a “catastrophe” is the same as the one
New Jersey has for “widespread injury”.
The definitions are found in section 2306:
Section
2306. Definitions
(a)
“Catastrophe” means:
(1)
serious physical injury to five or more persons; or
(2)
substantial damage to five or more buildings or habitable structures; or
(3)
substantial damage to a vital public facility that seriously impairs its
usefulness or operation.
“Serious
physical injury” has the meaning given in Section 1202(d)(2).
(b) A
“catastrophic agent” means an explosive, an incendiary device, a timing or
detonating mechanism for such device, poison or poisonous gas, a deadly
biological or chemical contaminant or agent, or a radioactive substance.
(c)
“Damage” to property means impairing its usefulness or value by any means, and
includes deleting or altering computer programs or other electronically
recorded data, or impairing access to computer services. “Computer services”
has the meaning given in Section 805(d)(1).
(d)
“Ecological catastrophe” means substantial damage to a marine environment
within the State or any other ecological environment designated by law to be so
protected.
(e)
“Incendiary device” means any item designed to ignite by hand, chemical
reaction, or spontaneous combustion, and includes bombs and other explosives.
Reading
the comments in Delaware’s Recodification Law, it clearly states that the
intent of the legislature was “to require
serious harm to five or more victims
or buildings”: (emphasis added).
Comment on Section 2306.
Definitions
Corresponding Current
Provision(s): 11 Del.C. §§ 811, 934, 1338; 7
Del.C. § 6071
Comment:
Generally. This Section provides definitions of key terms used in this
Chapter.
Relation to current Delaware law.
Sections 2306(a), (b), and (d) provide definitions of
“catastrophe,” “catastrophic agent,” and “ecological catastrophe,”
respectively. “Catastrophe” has been defined to require serious harm to five or
more victims or buildings to distinguish the severity of offenses in
Section 2305 from assault in proposed Section 1202.
Source: REPORT OF THE DELAWARE CRIMINAL LAW
RECODIFICATION PROJECT to the DELAWARE GENERAL ASSEMBLY’S CRIMINAL JUSTICE
IMPROVEMENT COMMITTEE, Volume 1, July 8, 2017.
It
is abundantly clear that the legislature intended to criminalize the
“catastrophe” or “widespread injury” caused by certain “catastrophic agents” or
by any other means of causing potentially widespread injury or damage to five
or more other victims, not including the defendant. No such “catastrophic” means were presented
in the state’s case. The state has
charged Stephanatos with an act of possessing a firearm without any threats
made against nobody and that gun possession has been ruled lawful under New
Jersey law. 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.
For
example, the New York State criminal code includes the following statutes that
are similar to the 2C:17-2 statute.
N.Y. Penal Law 120.20
– Reckless Endangerment in the Second Degree
A person is guilty of
reckless endangerment in the second degree when he recklessly engages in
conduct which creates a substantial
risk of serious physical injury to another person.
Reckless endangerment
in the second degree is a class A misdemeanor.
N.Y. Penal Law 120.25
– Reckless Endangerment in the First Degree
A person is guilty of
reckless endangerment in the first degree when, under circumstances evincing a
depraved indifference to human life, he recklessly engages in conduct which
creates a grave risk of death to
another person.
Reckless endangerment in the first degree is a class D
felony.
Both
of these statutes indicate that a person is guilty of reckless endangerment if
he recklessly engages in conduct which creates a grave risk of death or serious
physical injury to another
person and not to himself.
An
almost identical statute to N.J.S.A.
2C:17-2 can be found in the Pennsylvania criminal Code where the analogy to
“widespread injury” is labeled “catastrophe”:
In fact PA statute § 3302
uses the identical acts as in the New Jersey statute: “explosion, fire, flood, avalanche, collapse of building, release of
poison gas, radioactive material or other harmful or destructive force or
substance, or by any other means of causing potentially widespread injury or
damage”
§ 3302. Causing or
risking catastrophe.
(a) Causing
catastrophe.--A person who causes a catastrophe by
explosion, fire, flood, avalanche, collapse of building, release of poison gas,
radioactive material or other harmful or destructive force or substance, or by
any other means of causing potentially widespread injury or damage, including
selling, dealing in or otherwise providing licenses or permits to transport
hazardous materials in violation of 75 Pa.C.S. Ch. 83 (relating to hazardous
materials transportation), commits a felony of the first degree if he does so
intentionally or knowingly, or a felony of the second degree if he does so
recklessly.
(b) Risking
catastrophe.--A person is guilty of a felony of the
third degree if he recklessly creates a risk of catastrophe in the employment
of fire, explosives or other dangerous means listed in subsection (a) of this
section.
(Apr. 30, 2002, P.L.300, No.40, eff.
60 days)
Cross References.
Section 3302 is referred to in sections 3304, 3311, 5708, 6105 of this
title.
§ 3303. Failure to
prevent catastrophe.
A person who knowingly
or recklessly fails to take reasonable measures to prevent or mitigate a
catastrophe, when he can do so without substantial risk to himself, commits a
misdemeanor of the second degree if:
(1) he knows that
he is under an official, contractual or other legal duty to take such measures;
or
(2) he did or
assented to the act causing or threatening the catastrophe.
§ 3304. Criminal
mischief.
(a) Offense
defined.--A person is guilty of criminal
mischief if he:
(1) damages
tangible property of another intentionally, recklessly, or by negligence in the
employment of fire, explosives, or other dangerous means listed in section
3302(a) of this title (relating to causing or risking catastrophe);
(2) intentionally
or recklessly tampers with tangible property of another so as to endanger
person or property;
(3) intentionally
or recklessly causes another to suffer pecuniary loss by deception or threat;
(4) intentionally
defaces or otherwise damages tangible public property or tangible property of
another with graffiti by use of any aerosol spray-paint can, broad-tipped
indelible marker or similar marking device;
(5) intentionally
damages real or personal property of another; or
(6) intentionally
defaces personal, private or public property by discharging a paintball gun or
paintball marker at that property.
Recently, the Pennsylvania
Appellate Division has decided the case of Commonwealth
v. McCoy, 2018 PA Super 305, holding that growing marijuana in one’s home
and the corresponding risk of fire do not provide enough evidence to support a
conviction for Risking a Catastrophe or Recklessly Endangering Another
Person. Appellant appealed his
convictions for risking a catastrophe and recklessly endangering another person
based on his marijuana growing operation and the court found the grow operation
created a fire hazard but that creating a fire hazard did not equate with
risking a catastrophe and the commonwealth failed to prove that appellant created
the potential for widespread injury or damage or recklessly endangered another
person. Reversed.
In addition to the above statutes,
18 Pa.C.S.A. § 2705 provides:
“[a]
person commits a misdemeanor of the second degree if he recklessly engages in
conduct which places or may place another
person in danger of death or serious bodily injury.”
To
be convicted of REAP, one must have a conscious disregard of a known risk of
death or great bodily harm to another
person. The apparent ability to inflict harm is not sufficient to
convict someone of REAP. Unlike most crimes, this is not a specific intent
crime. As such, it is easier for the Commonwealth to prove the mens reas for REAP which
is, unsurprisingly, recklessness.
The Superior Court Reverses the Convictions for REAP and
Risking a Catastrophe.
After
reviewing the record, the Superior Court reversed the convictions for REAP and
Risking a Catastrophe. The Superior Court opined that though the defendant’s
actions created a fire hazard, the record did not support that it had the
potential for widespread injury or damage. Specifically, because he lived alone
and the closest neighboring home was not in real danger of being engulfed by a
potential fire from his house, he had not taken actions which sufficiently
risked a catastrophe to justify a conviction under the statute.
The
Superior Court further held that his actions were not “reckless.” Although the
fire marshal described the defendant’s actions as “inadequate” to prevent a
fire hazard, the Superior Court found that the defendant had taken steps that
showed he was not being reckless. Specifically, the defendant watered the
plants and monitored them twice a day. Further, the metal foil used in his
closet was to reflect light, not heat. As such, according to the Superior
Court, the defendant was not “reckless” and therefore was not guilty of REAP.
Consequently, his convictions were reversed and he will be re-sentenced on his
unchallenged possession of marijuana conviction.
Thus,
the courts of our sister states, construing statutes enacted by their
respective legislatures, have reached the same results, i.e. that the statutes
mean recklessly creating an injury to another person.
5. EXAMINATION
OF SIMILAR NEW JERSEY STATUTES
Further
insight regarding the legislative intent
can be found in other statutes where N.J.S.A.
2C:17-2 is referenced.
For
example, N.J.S.A. 2C:17-3
specifically references the reckless tampering of the property of person of
another using the dangerous means listed in subsection a. of N.J.S.A.. 2C:17-2.
An Act concerning the penalties for criminal
mischief and amending N.J.S. 2C:17-3.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1.
N.J.S.2C:17-3 is amended to read as follows:
2C:17-3. Criminal mischief. a. Offense
defined. A person is guilty of criminal mischief if he:
(1) Purposely or knowingly damages tangible property of another or
damages tangible property of another recklessly or negligently in the
employment of fire, explosives or other dangerous means listed in subsection a.
of N.J.S.2C:17-2; or
(2) Purposely, knowingly or recklessly tampers with tangible
property of another so as to endanger person or property, including the
damaging or destroying of a rental premises by a tenant in retaliation for
institution of eviction proceedings.
See
also the arson statute that specifically references the risk of injury or death
to another person.
2C:17-1.
Arson. – Aggravated arson is the act of starting a fire or causing an
explosion with the intent of causing damaging a structure, or placing another person in danger of death or bodily harm.
Arson is a second, third or fourth degree crime, depending on the offender’s
actions and resulting consequences.
In addition, in 2001 and
2002, the State Legislature, in response to the 9/11 terrorist attacks,
introduced assembly No. 911 that creates the new offenses of terrorism,
producing or possessing chemical weapons, biological agents or nuclear or
radiological devices, soliciting or providing material support or resources for
terrorism, and hindering apprehension or prosecution for terrorism. This bill
expanded existing provisions in the criminal code such as the statute of
limitations, the wiretapping statute, the RICO statute and the "No Early
Release Act" to add terrorism. In addition, the bill would revise the
criminal laws concerning terroristic threats, causing widespread injury or
damage, money laundering and making a false public alarm.
Terrorism. Under the provisions of the bill
as amended, a person is guilty of the crime of terrorism if he commits or
attempts, conspires or threatens to commit certain enumerated crimes with the
purpose: to incite or induce others to promote an act of terror; or to terrorize five or more persons;
or to influence the policy or affect the conduct of government by terror; or to
cause the impairment or interruption of public communications, public
transportation, public or private buildings, common carriers, public utilities
or other public services.
The crimes
encompassed by this act are: murder pursuant to N.J.S.2C:11-3; aggravated
manslaughter or manslaughter pursuant to N.J.S. 2C:11-4; vehicular homicide
pursuant to N.J.S. 2C:11-5; aggravated assault pursuant to subsection b. of
N.J.S. 2C:12-1; terroristic threats pursuant to N.J.S. 2C:12-3; disarming a law
enforcement officer pursuant to section 1 of P.L.1996, c.14 (C.2C:12-11);
kidnapping pursuant to N.J.S. 2C:13-1; criminal restraint pursuant to N.J.S.
2C:13-2; robbery pursuant to N.J.S.2C:15-1; carjacking pursuant to section 1 of
P.L.1993, c.221 (C.2C:15-2); aggravated arson or arson pursuant to
N.J.S.2C:17-1; causing or risking widespread injury or damage pursuant to
N.J.S.2C:17-2; damage to nuclear plant with the purpose to cause or threaten to
cause release of radiation pursuant to section 1 of P.L.1983, c.480
(C.2C:17-7); damage to nuclear plant resulting in death by radiation pursuant
to section 2 of P.L.1983, c.480 (C.2C:17-8); damage to nuclear plant resulting
in injury by radiation pursuant to section 3 of P.L.1983, c.480 (C.2C:17-9);
producing or possessing chemical weapons, biological agents or nuclear or
radiological devices; burglary pursuant to N.J.S.2C:18-2; possession of
prohibited weapons and devices pursuant to N.J.S. 2C:39-3; possession of
weapons for unlawful purposes pursuant to N.J.S. 2C:39-4; unlawful possession
of weapons pursuant to N.J.S.2C:39-5; weapons training for illegal activities
pursuant to section 1 of P.L.1983, c.229 (C.2C:39-14); racketeering pursuant to
N.J.S. 2C:41-1 et seq.
Stephanatos
submits that all these statutes mean injury to other people or five or more
other people and not including the defendant.
6. THE RULE OF LENITY
The
"rule of lenity" requires that "before a man can be punished as
a criminal ... his case must be plainly and unmistakably within the provisions
of some statute." United States v.
Gradwell, 243 U.S. 476, 485 (1917). Lenity principles "demand
resolution of ambiguities in criminal statutes in favor of the
defendant." Hughey v. United States, 495 U.S. 411, 422 (1990). See also United States v. Granderson, 511 U.S. 39, 54
(1994) ("In these circumstances—where text, structure, and
[legislative] history fail to establish that the Government's position is
unambiguously correct—we apply the rule of lenity and resolve the ambiguity in
[the defendant's] favor"); Cleveland
v. United States, 531 U.S. 12, 25 (2000) (before choosing a "harsher
alternative" interpretation of the mail fraud statute, "it is
appropriate ... to require that Congress should have spoken in language that is
clear and definite"). Accord
Skilling v. U.S., 561 U.S. 358, No.
08-1394 (June 24, 2010). The reasons for the rule are that "'fair
warning should be given to the world in language that the common world will
understand, of what the law intends to do if a certain line is passed'"
and that "'legislatures and not courts should define criminal
activity.'" Ratzlaf v. United States, 510 U.S. 135, 148-49 (1994) (quoting Boyle v. United States, 283 U.S. 25, 27
(1931) (Holmes, J., for Court)). Consequently, the rule "places the
weight of inertia upon the party that can best induce Congress to speak more
clearly and keeps courts from making criminal law in Congress's
stead." United States v. Santos, 553 U.S. 507, 514 (2008) (Scalia, J.,
plurality opinion). If statutory
language is unambiguous, the
rule of lenity is inapplicable. Beecham
v. United States, 511 U.S. 368, 374 (1994) (quoting Chapman v. United States, 500 U.S. 453, 463-64 (1991)). Accord, National Org. for Women v. Scheidler, 510
U.S. 249, 262 (1994). See
also United States v. Hayes,
555 U.S. 415, 429 (2009).
The
rule of lenity is an important principle of statutory construction; if a
statutory ambiguity cannot be resolved by analysis of the relevant text and the
use of extrinsic aids, the rule requires that the ambiguity be resolved in
favor of the defendant. State v. Gelman,
195 N.J. 475, 482 (2008) (citing United
States v. Bass, 404 U.S. 336, 348, 92 S. Ct. 515, 523, 30 L. Ed. 2d 488, 497
(1971)). The rule of lenity derives from the principle that [n]o one shall
be punished for a crime unless both that crime and its punishment are clearly
set forth in positive law. In re DeMarco,
83 N.J. 25, 36 (1980).
Here, Stephanatos submits
that the statutory construction is such that it is clear that Stephanatos has
not only been charged with an incorrect or inapplicable statute, the state has
failed to prove that there was any widespread injury to anyone or that
Stephanatos acted recklessly. Finally,
the statute clearly refers to risk of serious injury to five or more OTHER people, not including the
defendant.
Even more important, the
legislature did not intent for N.J.S.A.
2C:17-2c to be all encompassing to include people who refuse to obey an
ex-parte writ of possession, because if that was its intent, it would not have
needed to included examples of acts that could cause a risk of widespread
injury in 2C:17-2(a) and (b) (such as, explosion, fire, building collapse,
etc.). An analogous case was decided by
the United States Supreme Court in Begay
v. United States, 553 U.S. 137 (2008) where the court rejected the
government’s argument that the word “otherwise” does not limit the clause’s
scope.
(i) Clause (ii)’s listed examples—burglary,
arson, extortion, and crimes involving the use of explosives—should be read as
limiting the crimes the clause covers to those that are roughly similar, in
kind as well as in degree of risk posed, to the examples themselves. Their
presence in the statute indicates that Congress meant for the statute to cover
only similar crimes,
rather than every crime
that “presents a serious potential risk of physical injury to another,”
§924(e)(2)(B)(ii). If Congress meant the statute to be all encompassing, it
would not have needed to include the examples at all. Moreover, if clause (ii)
were meant to include all risky
crimes, Congress likely would not have included clause (i), which includes
crimes that have “as an element the use, attempted use, or threatened use of
physical force against the person of another.” And had Congress included the
examples solely for quantitative purposes, demonstrating no more than the
degree of risk of physical injury sufficient to bring a crime within the
statute’s scope, it would likely have chosen examples that better illustrated
the degree of risk it had in mind rather than these that are far from clear in
respect to the degree of risk each poses. The Government’s argument that the word
“otherwise” just after the examples is sufficient to demonstrate that they do
not limit the clause’s scope is rejected because “otherwise” can refer to a
crime that is, e.g.,
similar to the examples in respect to the degree of risk it produces, but different
in respect to the way or manner in which it produces that risk. Pp. 4–7.
Begay
v. United States, 553 U.S. 137 (2008).
In
United States v. Miller,
721 F.3d 435 (7th Cir. 2013), the Seventh Circuit held that conviction under §
941.28(2) for possession of a short-barreled shotgun was not a violent felony.
Miller
reached this conclusion under the Court’s interpretations of the residual
clause in Sykes v. United States,
131 S. Ct. 2267 (2011), Begay v.
United States, 553 U.S. 137 (2008), and James v. United States, 550 U.S. 192 (2007). Under those cases
the analysis boils down to whether the risk posed by the possession of a
short-barreled shotgun constitutes a serious risk of injury to another, using
the ACCA’s enumerated violent felonies (burglary, arson, extortion, or crimes
involving the use of explosives) as guides to evaluate that risk. The court
held the risk of physical injury to another presented by the mere possession of
a short-barreled shotgun is not in the same league as the risks presented by
the offenses of burglary, arson, extortion, or crimes involving the use of
explosives. Miller, 721
F.3d at 438-39, 440.
Johnson v. United States, 576 U.S. 2551, 135 S.Ct. ___ (2015),
was a United States Supreme Court case in which the Court ruled the "residual
clause" of the Armed Career Criminal Act was unconstitutionally vague and
in violation of due process. Here is an
excerpt from the court’s holdings:
(a) The Government violates the Due Process Clause when it
takes away someone’s life, liberty, or property under a criminal law so vague
that it fails to give ordinary people fair notice of the conduct it punishes,
or so standardless that it invites arbitrary enforcement. Kolender v. Lawson, 461 U. S. 352 –358.
(b)
(b) Two features
of the residual clause conspire to make it unconstitutionally vague. By tying
the judicial assessment of risk to a judicially imagined “ordinary case” of a
crime rather than to real-world facts or statutory elements, the clause leaves
grave uncertainty about how to estimate the risk posed by a crime. See James, supra, at 211. At the same
time, the residual clause leaves uncertainty about how much risk it takes for a
crime to qualify as a violent felony. Taken together, these uncertainties
produce more unpredictability and arbitrariness than the Due Process Clause
tolerates. This Court’s repeated failure to craft a principled standard out of
the residual clause and the lower courts’ persistent inability to apply the
clause in a consistent way confirm its hopeless indeterminacy. Pp. 5–10.
The modern vagueness doctrine, which claims the judicial
authority to “strike down” vague legislation on its face, did not emerge until
the turn of the 20th century. See Johnson,
576 U. S., at ___–___ (opinion of Thomas, J.)
(slip op., at 11–13), supra.
The difference between the traditional rule of lenity and
the modern vagueness doctrine is not merely semantic. Most obviously, lenity is
a tool of statutory construction, which means States can abrogate it—and many
have. Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 752–754 (1935);
see also Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W.Res. L. Rev. 581, 583 (1989)
(“Arizona, by the way, seems to have preserved a fair and free society without
adopting the rule that criminal statutes are to be strictly construed” (citing Ariz. Rev. Stat. §1-211C (1989))). The
vagueness doctrine, by contrast, is a rule of constitutional law that States
cannot alter or abolish. Lenity, moreover, applies only to “penal” statutes, 1
Blackstone, Commentaries on the Laws of England 88 (1765), but the vagueness
doctrine extends to all regulations of individual conduct, both penal and
nonpenal, Johnson,
576 U. S., at ___ (opinion of Thomas, J.)
(slip op., at 6); see also Note, Indefinite Criteria of Definiteness in
Statutes, 45 Harv. L. Rev. 160, 163
(1931) (explaining that the modern vagueness doctrine was not merely an
“extension of the rule of strict construction of penal statutes” because it
“expressly include[s] civil statutes within its scope,” reflecting a
“regrettable disregard” for legislatures).
In Sessions v. Dimaya, 584 U.S. ___ (2018), the U.S. Supreme Court
held that section 16(b), as incorporated into the Immigration and Nationality
Act, was also unconstitutionally vague.
The Court ruled that Section 16(b) has the same two features as ACCA’s
residual clause—an ordinary-case requirement and an ill-defined risk
threshold—combined in the same constitutionally problematic way. The combination
of “indeterminacy about how to measure the risk posed by a crime [and]
indeterminacy about how much risk it takes for the crime to qualify as a
violent felony,” result in “more unpredictability and arbitrariness than the
Due Process Clause tolerates”.
To the extent there is
ambiguity, in the types of acts included in N.J.S.A.
2C:17-2c and/or whether the term five or more people includes the defendant,
an/or whether the statute includes the failure to obey a civil court order as
the illegal act, that ambiguity must be resolved in favor of Stephanatos.
7. INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment right to
effective assistance of counsel was defined by the United States Supreme Court
in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984).
Under
a claim for ineffective assistance, a defendant claims that his counsel failed
to provide competent assistance. Id. at
686, 104 S. Ct . at 2064, 80 L. Ed.2d at 692. For such “actual
ineffectiveness” cases, the Supreme Court established its familiar two-pronged
test. Id. at 683–87, 104 S.Ct. at
2062–64, 80 L. Ed.2d at 690–93. The first prong requires a showing of
deficient performance by counsel. Id. at
687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693. The Supreme Court declined to
impose a “particular set of detailed rules for counsel's conduct,” Id. at 688–89, 104 S.Ct. at 2065, 80 L.
Ed.2d at 694, establishing instead “a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance,” Id. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d
at 694.
The
second, or “prejudice,” prong of the Strickland test compels a showing that
“the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693. Accordingly, a
defendant must show “that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Ibid., 104 S.Ct. at 2064, 80 L. Ed.2d at 693.
This second prong was reiterated by the
Supreme Court in Cronic, supra, 466 U.S.
at 658, 104 S. Ct . at 2046, 80 L. Ed.2d at 667, with the caveat that there
are “circumstances that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified.” With the exception of the unusual setting in
which prejudice to the defendant is self-evident, a defendant must make a
showing of prejudice to meet the federal constitutional standard. Strickland, supra, 466 U.S. at 693, 104
S.Ct. at 2067, 80 L. Ed.2d at 697; Cronic, supra, 466 U.S. at 661–62, 104 S.Ct.
at 2048, 80 L. Ed.2d at 669–70.
The
New Jersey Supreme Court has adopted the standard of Strickland and Cronic as the benchmark by which the violation of a
right to counsel is measured under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58, 519 A.2d
336 (1987), State v. Miller, 216 N.J. 40 (2013)
To secure reversal of his or
her conviction premised upon a claim that his or her attorney was ineffective
in conducting the defense, a defendant must satisfy both prongs of the
Strickland/Fritz test: counsel's deficient performance and prejudice. Strickland, supra, 466 U.S. at 687, 693, 104
S.Ct. at 2062, 2067, 80 L. Ed.2d at 690–91, 697; Fritz, supra, 105 N.J. at
60–61, 519 A.2d 336.
Stephanatos’
court-appointed counsel and this Court advised the jurors that Stephanatos
should have vacated his home because he was ordered to do so by the ex-parte
writ of possession. These were highly
prejudicial statements that violated Stephanatos’ due process rights and also
raised the issue of ineffective assistance of counsel. According to New Jersey law, a person can
disobey judgments, orders or other court process under a penalty of contempt of
court and nothing more. See 2A:10-5.
Civil contempt; punishment
2A:10-5.
Any person who shall be adjudged in contempt of the Superior Court by reason of
his disobedience to a judgment, order or process of the court, shall, where the
contempt is primarily civil in nature and before he is discharged therefrom,
pay to the clerk of the court, for every such contempt, a sum not exceeding $50
as a fine, to be imposed by the court, together with the costs incurred.
L.1951
(1st SS), c.344; amended 1991,c.91,s.26.
The
above state law clearly states that Stephanatos was only liable for a fine for
refusing to obey a civil court order.
However, this Court made highly prejudicial and biased statements that
“it will be anarchy for failing to obey orders”. The statements made to the jurors by the
Court, Stephanatos’ court-appointed counsel and the Passaic County Prosecutor
were highly prejudicial and affected the jurors decisions in finding
Stephanatos guilty on count four of the indictment.
Mr.
Seplowitz made these highly prejudicial statements despite the fact that
Stephanatos had told him that he had filed appeals and lawsuits and that his
legal strategy was to buy time to be able to exhaust his appeals by refusing to
vacate the premises. Stephanatos told
Seplowitz that he was expecting the antitrust conspirators to either file a
contempt of court charge or sue him for forceful detainer. Seplowitz failed to present this legal
strategy to the jurors and instead told them that it was wrong not to vacate
the premises. Even worse, Mr. Seplowitz
did not even research the N.J.S.A.
2C:17-2c statutes to find out if the failure to obey a court order is one
of the acts contemplated by the state legislature as causing risk of widespread
injury to five or more people or five or more habitations. If he had done so, he would have made the
proper presentation to the jurors, stating to them that refusing to vacate
one’s home is not a criminal act punishable under that statute or other
criminal state law or risking widespread injury to anyone.
This
Court also made the highly prejudicial statements that Stephanatos was mandated
to leave his home, file an appeal with the Appellate Division and then re-enter
his home. This Court ignored the law of
this state that says that a person refusing to obey a court order or judgment
can only be found guilty of contempt of court and pay a fine.
CONCLUSION
Stephanatos
respectfully submits that based on the above detailed briefing, the Court
should set aside the guilty jury verdict on count four of the indictment and
enter a judgment of acquittal n.o.v. as a matter of law. In the alternative, the Court should order a
new trial for the count four of the indictment using the original count four of
the indictment charging Stephanatos with the placement of a “SLIVER METAL
CONTAINER ON HIS FRONT STEPS CAUSING THE EVACUATION OF NEIGHBORS” (See Defense
Exhibit D-1, showing the original complaint filed by Lucas that was presented
before the grand jury) onto his porch and not the amended one that charged
Stephanatos that he was carrying a gun inside his home (which is a legal
act). 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.
Finally,
highly prejudicial and erroneous instructions and presentations by both the
prosecutor and the defense attorney were made to the jurors regarding the
failure to vacate Stephanatos’ remises. According
to New Jersey law, a person can disobey judgments, orders or other court
process under a penalty of contempt of court and nothing more. See 2A:10-5. Civil contempt; punishment
2A:10-5.
Any person who shall be adjudged in contempt of the Superior Court by reason of
his disobedience to a judgment, order or process of the court, shall, where the
contempt is primarily civil in nature and before he is discharged therefrom,
pay to the clerk of the court, for every such contempt, a sum not exceeding $50
as a fine, to be imposed by the court, together with the costs incurred.
L.1951
(1st SS), c.344; amended 1991,c.91,s.26.
The above state law clearly
states that Stephanatos was only liable for a fine for refusing to obey a civil
court order and nothing more. The
antitrust conspirators had also the option of suing Stephanatos for Forceful
Detainer; but no criminal charges could be filed against him for failing to
vacate the premises.
CERTIFICATION
OF BASILIS N. STEPHANATOS
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.
DATE: February
12, 2019
Respectfully Submitted,
___________________________________
Basilis
N. Stephanatos, PhD, PE, JD
DEFENSE EXHIBIT D-1
ORIGINAL GRAND JURY INDICTMENT CHARGE ALLEGING THAT
STEPHANATOS PLACED A “SLIVER METAL CONTAINER ON HIS FRONT STEPS CAUSING THE
EVACUATION OF NEIGHBORS
The "rule of
lenity" requires that "before a
man can be punished as a criminal ... his case must be plainly and unmistakably
within the provisions of some statute." United States v. Gradwell, 243 U.S. 476, 485 (1917). Lenity
principles "demand resolution of
ambiguities in criminal statutes in favor of the defendant." Hughey
v. United States, 495 U.S. 411, 422 (1990), In re DeMarco, 83 N.J. 25, 36
(1980). See Lanzetta v. New Jersey, 306
U.S. 451, 453 (1939) (“No one may be
required at peril of life, liberty or property to speculate as to the meaning
of penal statutes.”). United States v. D'Alessio, 822 F.Supp.
1134, 1143-44 (D.N.J. 1993) ("The
rule of lenity provides that if a court must choose between two readings of a
criminal statute, the court should apply the more lenient one, leaving it to
the legislature to speak in clearer terms if the harsher alternative is
intended.").
Its existence against Stephanatos 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.njtaxliensettlements.com/
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.
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.
Justice
Scalia, concurring
in the judgment.
The statute in this case defines
“violent felony” in part as “any crime punishable by imprisonment for a term
exceeding one year … that … is burglary, arson, or extortion, involves the use
of explosives, or otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii).
Contrary to the Court, I conclude that the residual clause unambiguously
encompasses all crimes that
present a serious risk of injury to another. But because I cannot say that
drunk driving clearly poses such a risk (within the meaning of the statute),
the rule of lenity brings me to concur in the judgment of the Court.
