MEC&F Expert Engineers : 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

Friday, March 1, 2019

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

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.

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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, 4^th 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

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BASILIS N. STEPHANATOS, PHD., JD.

STATE OF NEW JERSEY

Plaintiff,

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[1], 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[2]. 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[3] 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”[4] 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)[5], 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[6]. 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

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[7]. 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[8] and State Constitutions[9]. 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.[10]

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.

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[11]) 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.

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

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[12]. 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.

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.

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.[13]

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

L.1951 (1st SS), c.344; amended 1991,c.91,s.26.

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.

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

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

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

[1] 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.").

[2] 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.

[3] The Court even sustained an objection by the state when Stephanatos testified that he obtained his law license and was planning to become a patent lawyer! I guess the testimony by Stephanatos did not quite fit the state’s narrative, and this Court agreed.

[4] (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). Begay v. United States, 553 U.S. 137 (2008).

[5] Kolender v. Lawson, 461 U.S. 352 (1983), is a United States Supreme Court case concerning the constitutionality of vague laws.

[6] Stephanatos has been alleging on a number of occasions that the ex-parte writ of possession was void ab initio and provided extensive legal documents to this Court; yet this Court refused to rule on the documents and said that the writ was valid.

[7] It is crucial to report that based on the sheriff reports, only two persons (a lady and her son) had to be evacuated after Lucas falsely claimed that he saw a metal ammunition box or a bomb or an IED. Thus, less than 5 people and less than 5 habitations were affected. Therefore, this fourth count is patently frivolous and must be dismissed as a matter of law.

[8] 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.

[9] 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.

[10] See N.J.S.A. 2C:2-2b(3).

[11] See 2C:39-6-Exemptions.

[12] The Supreme Court of Pennsylvania ruled that the word “catastrophe” is synonymous with “widespread injury”.

“We are also of the view that the term "catastrophe" is sufficiently precise to designate the extent of the harm sought to be presented by this section. Reading sections (a) and (b) together, it is clear that the forces or substances intended to be regulated are those which are capable "of causing . . . widespread injury or damage". Thus, construing Section (b) in accordance with the fair import of its terms the word "catastrophe" is intended to be synonymous with "widespread injury or damage." Among the meanings offered for the word, "catastrophe" in Webster's Third New International Dictionary (G. & C. Merriam Co. 1966), is "an extraordinary disaster". Roget's Thesaurus (Garden City Books, Revised Ed. 1936), supplies "calamity" and "disaster" as suitable synonyms.

Commonwealth v. Hughes, 468 Pa. 502 (1976).

[13] 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.

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Friday, March 1, 2019

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

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