FEDERAL COMPLAINT AGAINST PASSAIC COUNTY DEPUTIES RONALD LUCAS, VICTOR D’AGOSTINO, AND OTHERS for fabrication of evidence, conspiracy to prosecute maliciously, malicious prosecution, illegal arrest and imprisonment, etc.

COMPLAINT AGAINST PASSAIC COUNTY DEPUTIES RONALD LUCAS, VICTOR D’AGOSTINO, AND OTHERS for fabrication of evidence, conspiracy to prosecute maliciously, malicious prosecution, illegal arrest and imprisonment, etc.
WHEN AND WHERE TO FILE A COMPLAINT—LAW ENFORCEMENT
Federal criminal civil rights law prohibits law enforcement agents from conspiring to interfere with federally protected rights, depriving rights under color of law, or using or conspiring to use force, or threat of force, to interfere with the free exercise of your civil rights.
To report criminal activities that constitute violations of civil rights, contact:

U.S. Department of Justice
Civil Rights Division
Criminal Section, PHB
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 514-3204
Fax: (202) 514-8336
www.usdoj.gov

If you have a complaint of police brutality or the abuse of your rights by the police or other public officials, contact the nearest office of the Federal Bureau of Investigation (FBI), listed in the front of your telephone directory under “police,” or write to the Department of Justice at the address above.
An individual who believes that a law enforcement agency receiving Department of Justice assistance, such as a police or sheriff’s department, jail, state police, or corrections system, is discriminating on the basis of race, color, national origin, religion, sex, or age may file a complaint with:

U.S. Department of Justice
Civil Rights Division
Coordination and Review Section
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 307-2222
TTY: (202) 307-2678
Fax: (202) 307-0595
www.usdoj.gov/crt/cor/index.htm

or

U.S. Department of Justice
Office of Justice Programs
Office for Civil Rights
810 Seventh Street, NW, Room 8124
Washington, DC 20531
(202) 307-0690
TTY: (202) 307-2027
Fax: (202) 616-9865
www.ojp.usdoj.gov/ocr

This is a complaint for Civil Rights violations (wrongful arrest, imprisonment, malicious prosecution, fabrication of evidence, etc.) against Passaic County sheriff deputies Ronald A. Lucas and Victor D’Agostino.

FACTS

On February 4, 2019, A Bergen County jury of my peers has found me not guilty of all the fabricated charges by Ronald A. Lucas, Victor D’Agostino that somehow I had pointed a gun at the officers on June 28, 2011 and that I was possessing a gun for an unlawful purpose and for hindering apprehension.  This was a not-guilty verdict on all four (4) very serious charges on the fraudulently obtained indictment in September 2011. 

These are very serious allegations and I would like to file criminal charges against the officers and everyone who assisted for covering up their fabrications for the last eight years.

THE OFFICERS MADE NUMEROUS ADDITIONAL CONTRADICTING AND UNCORROBORATED STATEMENTS DURING THEIR TESTIMONY EVIDENCING FABRICATION OF EVIDENCE AND CONSPIRACY TO PROSECUTE MALICIOUSLY

During their January 29, 2019 testimony (both direct and cross) Lucas and D’Agostino made a very significant number of additional contradicting and uncorroborated statements; this led to the non-guilty verdict.

Importantly, the sheriff officers testified under oath that they failed to “knock and announce” prior to performing a search of my home.

The numerous contradicting statements of the sheriff officers provide further proofs that they fabricated their charges against Dr. Stephanatos.

THE PASSAIC COUNTY PROSECUTOR PROVIDED “SMOKING GUN” EVIDENCE AGAINST ROBERT DEL VECCHIO

On January 23, 2019, as part of the pre-trial discovery, the Passaic County prosecutor, Mr. Stephen Bollenbach, provided me with several handwritten pages prepared by Defendant Robert Del Vecchio in May 2011.  The newly discovered pages show that Defendant Del Vecchio faxed letters to the Passaic County Sheriff stating that Stephanatos was a “dangerous Deft” and that Stephanatos had threatened him on May 24, 2011.  All these written statements by Defendant Del Vecchio were fabricated by him to prejudice the Passaic County Sheriff against Stephanatos and to force Stephanatos out of his home using the void ab initio ex-parte writ of possession.

Judge Guida, the presiding judge over the criminal proceedings, ruled that Dr. Stephanatos did not threatened conspirator Del Vecchio with any physical violence and he only warned Del Vecchio of legal action.

Very Truly Yours,

___________________________________

Basilis N. Stephanatos, PhD, PE, JD

Tel.: (201) 366-4588

Tel.: (973) 897-8162

Fax: (973) 810-0440

E-mail: bstephanatos@gmail.com

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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

======================================== 

PROCEDURAL HISTORY AND STATEMENT OF FACTS

This is the oldest case in the state of New Jersey and originated with a tax sale certificate for about $800 purchased by American Tax Funding, LLC in 2005. 

Stephanatos was the victim of a criminal conspiracy by individuals (such as Robert A. Del Vecchio, Jr., and many others including his lawyer father who was convicted of Sherman Act violations and was stripped off his law license, see http://www.state.nj.us/dobi/division_rec/enforcement/co_14_012.pdf)

and entities (such as American Tax Funding, LLC) who lied to the Mercer County and Passaic County and court law clerks (e.g., lied to Acting Law Clerk Jennifer M. Perez) and hired the sheriff’s officers to illegally seize Defendant’s home/business in violation of state and federal laws; the conspiracy was uncovered by the Federal Bureau of Investigation (FBI) with assistance from the Defendant (See

https://www.fbi.gov/newark/press-releases/2014/former-new-york-tax-liens-investment-company-executive-pleads-guilty-to-role-in-bid-rigging-scheme-at-municipal-tax-lien-auctions);

  its existence against the Defendant and thousands of New Jersey homeowners was determined and confirmed by the federal judge Michael A. Shipp in the federal antitrust case IN RE NEW JERSEY TAX SALES CERTIFICATES ANTITRUST LITIGATION, Master Docket No. 3:12-CV-01893-MAS-TJB  (see

http://www.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

Contrary to what the trial court said, the Antitrust violations were not part of any civil court proceeding and the Third Circuit Judge Hochberg never addressed such claims. The trial court confused the “conspiracy under section 1983” claim that was part of the 2012 lawsuit considered by Judge Hochberg, with the current claim of Antitrust Conspiracy under the Sherman Act.  These are two separate claims and have nothing to do with each other.  Judge Shipp never decided the Antitrust claims against ATF, LLC and others until October 2014, so these antitrust conspiracy claims were not part of the Defendant’s 2012 lawsuit.  Even more crucial, the federal judge did not address the Uniformity Clause violation claims, because they were not part of that lawsuit and even if they were, judge Hochberg could not have addressed state claims because the judge found no federal civil right violations.

Defendant’s property was located at 687 Indian Road, Wayne, New Jersey and was purchased by the Defendant in 1994 for $240,000.  The assessed value (AV) was $237,000, using a 0.5 ratio; this means that the fair market value (FMV) assigned by Wayne Tax Assessor was $475,000, more than 40 percent greater than the 1994 purchase value.  Thus, Wayne Township Tax Assessor knew as early as 1995 of the true fair market value of Dr. Stephanatos and that the taxes levied onto his property were illegal because they exceeded the 15 percent range allowed under the Uniformity Clause provision of the state constitution (Article VIII, Section 1, paragraph 1(a)).

N.J.S.A. 54:4-1 states the requirement that property be assessed and taxed annually at its "taxable value." N.J.S.A. 54:4-2.25 states that the "true value" standard is to be used in the assessment of taxable property. N.J.S.A. 54:4-23 specifically directs the assessor annually to determine the "full and fair value" of real property by making an informed estimate of the price at which a particular parcel would sell for at a "fair and bona fide sale." That phrase, "full and bona fide sale," is commonly understood as "market value."  Wayne Township failed to follow the above statutes and therefore the assessment was invalid.

The property was damaged by flooding starting in about 2000 and later years due to the flooding at Ramapo River that reduced significantly the property value.  Defendant proceeded on a prose basis to attempt to reduce the taxes charged by the Wayne Township by using a variety of arguments, including Equal Protection, the Taking Clause, etc.  The Uniformity Clause provision of the New Jersey Constitution was not used as argument because at the time, Defendant was not aware that Wayne Township was using a 0.5 ratio between assessed value and true fair market value.  Almost all municipalities use a 1.0 ratio between assessed value and true fair market value. 

Defendant filed legal actions challenging the constitutionality of the taxes using equal protection arguments.  He never challenged at the time the illegal overassessment because he was not aware of the use of the 0.5 ratio between AV and FMV.  Defendant paid all taxes assessed from 1994 through 2004.  In 2004, the tax collector did not properly credit the $800 state refund to the 2004 taxes, but instead credited them to the 2005 taxes due.

Faced with continued dispute with Wayne, Plaintiff paid about 50 percent or so of the taxes starting with 2005 tax year.  The issue of overassessment of his property was never addressed by any court, as Defendant was not aware of the 0.5 ratio.  It is crucial to Defendant’s case to be allowed to explain to the jury the background leading to the illegal eviction.

A complaint to foreclose tax sale certificate number 2310 was filed on February 18, 2009. The tax sale certificate was sold by Wayne township to American Tax Funding, LLC on September 27, 2005 for delinquent property taxes on property located at 687 Indian Road.  Defendant filed a contesting answer on April 1, 2009. On June 12, 2009 a motion for summary judgment was denied by Judge McVeigh and the foreclosure matter stayed for four months to allow Defendant to file a complaint in lieu of prerogative writs in the law division by June 19, 2009. This complaint was filed on June 16, 2009 and ultimately dismissed on February 19, 2010 by Judge Riva.  Judge Riva dismissed the case after an unnoticed motion by Wayne Township.  No hearing ever took place and no fact finding was ever conducted by Judge Riva.  He never issued an application of the law to the facts in violation of Rule 1:7-4(a).  R. 4:64-6 states that in foreclosure of tax sale certificates, if the defendant's answer sets up the defense of the invalidity of the tax or other lien, or the invalidity of the proceedings to sell, or the invalidity of the sale, those questions shall be tried in the action.  However, here there is neither fact finding nor a trial on any of the issues raised by Dr. Stephanatos.

Defendant was not aware that Judge Riva dismissed the action while still in discovery.  It was during the discovery period when the Defendant found out about the 0.5 ratio between AV and FMV used by the Wayne Assessor. The issue of overassessment of the property was never submitted to Judge Riva because he retired shortly after.

On April 27, 2010 and order was entered by Judge McVeigh striking the answer and returning the matter to the Office of Foreclosure because she considered the matter uncontested.  She never issued an application of the law to the facts in violation of Rule 1:7-4(a).  However, Defendant continued to contest the validity of the tax and the tax sale certificate and also indicated that ATF and Robert Del Vecchio were lying to the court(s). A case is considered contested when the Defendant contests the validity of the underlying lien or debt, which he did.  R. 4:64-6 states that in foreclosure of tax sale certificates, if the defendant's answer sets up the defense of the invalidity of the tax or other lien, or the invalidity of the proceedings to sell, or the invalidity of the sale, those questions shall be tried in the action.  However, here there is neither fact finding nor a trial on any of the issues raised by Dr. Stephanatos.

Despite having no jurisdiction for contested cases, the Office of Foreclosure entered an order setting amount, time and place of redemption on January 14, 2011, fixing a redemption date of March 2, 2011. This is the time that Defendant became aware of what was going on.  He immediately filed a motion to vacate the redemption order and asked for re-instatement of the claims against Wayne Township.

On March 21, 2011 an order was entered by Judge McVeigh denying Defendant’s motion to vacate the redemption order and further denying Defendant’s request to stay the matter permitting reinstatement of claims against Wayne Township.  She never issued an application of the law to the facts in violation of Rule 1:7-4(a). In fact, all other New Jersey court cases cited by the state were decided by motion, without any hearing and without  an application of the law to the facts in violation of Rules 1:7-4(a) and R. 4:64-6. Dr. Stephanatos has evidence that he was in fact a target of state and local government employees because of his lawsuits against Wayne Township asking for Equal Protection.

Former Judge McVeighs orders were frivolous because equity cannot "create a remedy that is in violation of [the] law." IMO Estate of Shinn, 394 N.J. Super. 55, 67 (App. Div.), certif. denied, 192 N.J. 595 (2007). Rather, a decision is incorrect when the court overlooks "the maxim that 'equity follows the law.'" Id. at 67.  See also M&D Assocs. v. Mandara, 366 N.J. Super. 341 (App. Div.) certif. denied, 180 N.J. 151 (2004) for its rationale that chancery courts "in such foreclosure cases should be alerted . . . that a significant windfall might result if adequate scrutiny . . . is not undertaken[,]"

“We are of the view that particularly in situations like the one involved in this case, where there is substituted service, as well as a tremendous disparity between the amount due on the tax certificates and the value of the property subject to foreclosure (here approximately $4,500 versus potentially $100,000 to $200,000 for the property), careful scrutiny of the affidavit of inquiry requires the Chancery Judge to demand more than cursory inquiries or recitals not only as a matter of due process, but also of fundamental fairness. See Bron v. Weintraub, supra (42 N.J. at 93-96). The Chancery Judge in such foreclosure cases should be alerted when the face of the documentation indicates that a significant windfall might result if adequate scrutiny of the affidavit of inquiry is not undertaken. In view of our decision, the operation of the tax sale law requires that the entire judgment must be vacated as void based upon equitable considerations.”

The order granted Defendant an additional thirty days to redeem the tax sale certificate. The outstanding taxes were not redeemed because Defendant knew that the property was impermissibly over assessed in violation of the Uniformity Clause provision.  An ex-parte Final Judgment was entered on May 13, 2011. An ex-parte Writ of Possession was entered on May 13, 2011, although such writs must be entered 3 days after the entering of final judgments. Eviction took place on June 28, 2011. An order was entered by Judge McVeigh on June 30, 2011 denying Defendant’s motion to stay the writ and further denying a stay pending appeal. Defendant filed an appeal that was never adjudicated because the Passaic County sheriff took possession of Defendant’s dwelling on June 28, 2011. 

Here, ATF, LLC/Wayne Township knowingly charged excessive taxes  and 24 percent interest and penalties and fees on top of these excessive and illegal taxes.  Thus, a tax dispute of less than $20K (the overassessment amount) became $60K.  Dr. Stephanatos offered to pay the $20K overassessment amount, but refused to pay the $60K amount.  Then the antitrust conspirators confiscated his residential real estate property, along with his business, Metropolitan Environmental Services, PC.  ATF, LLC received a property valued at $475,000 for a small tax debt, while at the same time permanently damaging Dr. Stephanatos business located in the premises.

That Passaic County Chancery Court failed to address the legal issues presented to it, and through the fraud and lies perpetrated by Robert A. Del Vecchio and ATF and others, certified that all issues in this contested matter were addressed, when in fact none had been addressed, especially the 40% overassessment of Defendant’s property.  Defendant asserts that Judge McVeigh was poisoned by Robert Del Vecchio, Jr who told her that Defendant had not paid taxes since 1993 (a false allegation) and that Defendant had threatened him with physical violence (also a patently false allegation).  Defendant’s fate was sealed due to these people who committed fraud on the court.  It is Defendant’s position that Due to the Fraud on the Court, no judge had jurisdiction over the F-9241-09 case and all orders, judgments, writs were VOID AB INITIO.  It is also clear and well-settled New Jersey law that any attempt to commit “fraud upon the court” vitiates the entire proceeding.  See, e.g., Shammas v. Shammas, 9 N.J. 321, 330 (1952).  Gilgallon v. Bond, 279 N.J. Super. 265, 267 (App. Div. 1995).

The antitrust conspirators (Robert Del Vecchio, Esq.) falsely told the Passaic County sheriff that Dr. Stephanatos had threatened him with violence, which was a lie.  That way, at least four sheriff officers came to Dr. Stephanatos’ residence armed with MI-16 assault rifles.  Two sheriff employees, Lucas and D’Agostino, claimed that they were assaulted by the Defendant on June 28, 2011.  Dr. Stephanatos vehemently denied the accusations and provided numerous proofs that the charges were fabricated in order to remove him out of his home. Defendant was indicted in September 2011.  The prosecutor refused to inform the grand jury that Dr. Stephanatos wanted to testify as a witness and dispute the allegations of the two sheriff employees.

Defendant hired Carl Herman for the grand jury and after that Miles Feinstein who has been on the case until his departure due to illness in February 2018.  In 2012, Mr. Feinstein and John Saycanick, Esq. filed a Motion to Change Venue due to conflicts of interest with the state witnesses.  The assigned Judge De la Carrera never addressed the Motion to Change Venue until late 2015. Due to the case delays, the assignment Judge Ernest Caposela removed Judge De la Carrera from the case in May 2016.  After that, Judge Marilyn C. Clerk took over the case, but determined that the case was improperly kept in the Passaic Vicinage and should have been transferred to another county due to the conflicts of interest and the appearance of improprieties.  The case was transferred to Judge James Guida in Bergen County for adjudication in January 2018.

Between November 2015 and May 9, 2018, Dr. Stephanatos submitted 33 Omnibus Motions to Dismiss, including supporting brief and attachments.  He alleged perjury on the part of the sheriff employees and prosecutorial misconduct during the grand jury, among other motions.  Defendant provided clear proofs of perjury and misconduct and requested a hearing pursuant to State v. Atwood, 161 A.3d 763, 229 N.J. 255 (2017).  Defendant also requested that the indictment be dismissed because the seven (7) year, 2,450-day case delay deprived the defendant of his constitutionally-guaranteed right to a speedy trial.

In May 24, 2018, erroneously relying on a civil court case that was decided by motion, without any hearings, Judge Guida denied all the Omnibus Motions.  He denied all defenses, including the claim of illegal overassessment of Defendant’s property, unconstitutional taking of private property, duress, outrageous government conduct, Castle Doctrine Defense (N.J.S. 2C:3-4 and N.J.S. 2C:3-6), due process clause violations under the Fifth and Fourteenth Amendments to the U.S. Constitution. The Court also did not dismiss the indictment under the doctrine of cumulative errors; State v. Orecchio, 16 N.J. 125, 129 (1954).  Very significant, the judge said that the Defendant will not be allowed to bring the claim of illegal overassessment of his residential property during the trial that has been scheduled for August 6, 2018.  This is extraordinarily damaging to the Defendant, as he will not be able to present the “totality of the circumstances” to the jury that lead to the events of June 28, 2011, including the fraud-on-the-court claim.  Defendant submits that the exception to the collateral bar applies, because the Final Judgment was transparently invalid, void, or frivolous order and/or required the "irretrievable surrender" of constitutional rights or no “adequate and effective” opportunity for appellate review exists, because the judgment issued by the Mercer Court was ex-parte, without any hearing or notice.

On June 4, 2018, on a Motion for Reconsideration, Judge Guida admitted that Mr. Feinstein only asked for 31 adjournments out of 75+ total. He had initially stated on May 24, 2018, that Feinstein had asked for 80 out of 100+ adjournments.

The Defendant asks this Court to reverse the trial court’s decision denying his defenses and claims, including the violation of his fundamental speedy trial right. The Court should also allow the Defendant to present the property overassessment claims, outrageous government conduct, duress, due process violations, Article I, par. 20, N.J. Const. violations and other defenses to the jury.

LEGAL ARGUMENTS

I. THE COURT ABUSED ITS DISCRETION BY FAILING TO DISMISS THE INDICTMENT AND ERRED BY FAILING TO FIND THAT THE SEVEN (7) YEAR, 2,450-DAY CASE DELAY DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONALLY-GUARANTEED RIGHT TO A SPEEDY TRIAL

A defendant has a fundamental constitutional right to a speedy trial.  U.S. Const., amend.VI; N.J. Const. Art. I, par. 10.   New Jersey has adopted the four-prong test set forth in Barker v. Wingo, 407 U.S. 514 (1972), to determine whether a defendant’s right to a speedy trial has been violated. See State v. Szima, 70 N.J. 196, 200-01 (1976).

The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 101, 117 (1972), and the New Jersey Supreme Court in State v. Cahill, 213 N.J. 253 (2013), examined the constitutional right to a speedy trial in the context of a criminal charge and a DWI charge, respectively. The New Jersey Supreme Court instructed, “[p]rompt disposition of criminal or quasi-criminal charges addresses the interest of the accused to be treated fairly …and prevents prejudice to the accused.” Id. at 276.

Courts should assess “four non-exclusive factors” to determine if a defendant’s constitutional speedy trial guarantees have been violated: “length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant” Id. at 264.; see also State v. Farrell, 320 N.J. Super. 425 (App. Div. 1999); State v. Tsetsekas, 411 N.J. Super. 1 (App. Div. 2009).  United States v. Velazquez, 749 F.3d 161, 174 (3d Cir. 2014).  The four factors in Barker are identical to the ones in Farell, supra: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his or her right; and (4) prejudice to the defendant. See Cahill, supra, 213 N.J. at 270. Due to the lack of a specified time period, courts must engage in a balancing process, subject to the specific facts and circumstances of each case.  A determination by a trial judge on whether defendant was deprived of right to speedy trial should not be overturned unless "clearly erroneous." State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).

The Length of the Delay

The threshold question under Barker is whether the length of delay was sufficient to trigger analysis of the remaining factors. This involves “a double enquiry.” Doggett v. United States, 505 U.S. 647, 652 (1992). “In other words, a court first decides whether the delay is long enough that it should trigger analysis of the other Barker factors. . . . If it is, the length of the delay is also separately weighed in the court’s analysis of the remaining factors.” Velazquez, 749 F.3d at 174 (citations omitted). The length of delay is measured “from the date of arrest or indictment, whichever is earlier, until the start of trial.” United States v. Battis, 589 F.3d 673, 678 (3d Cir. 2009) (citing Hakeem v. Beyer, 990 F.2d 750, 764 (3d Cir. 1993) at 760). “We have previously held that a delay of even fourteen months is sufficient to trigger review of the remaining Barker factors. Id. (citing Hakeem, 990 F.2d at 760).

Stephanatos has endured what is undeniably an “extraordinary delay” in awaiting trial.  Seven years have elapsed since he was detained by the government on June 28, 2011, and he still has not had his trial day in court.  Courts assessing Sixth Amendment speedy trial claims have consistently branded as “extraordinary,” “excessive,” “substantial” and “disturbing” multi-year delays between indictment and trial, weighing such delays heavily in the defendant’s favor in the Barker balancing analysis.  See, e.g., Doggett, 505 U.S. at 652, 655, 112 S. Ct. at 2691, 2693 (dismissing with prejudice, after finding an eight-and-one-half year delay between indictment and trial “extraordinary” and “excessive”); Barker, 407 U.S. at 533, 534, 92 S. Ct. at 2193-94 (dismissing with prejudice after finding “clear[ly] . . . extraordinary” an over five-year pre-trial delay); United States v. Carini, 562 F.2d at 148 (dismissing with prejudice after deeming a 34-month pre-trial delay “disturbing”); United States v. New Buffalo Amusement Corp., 600 F.2d 368, 377 (2d Cir. 1979) (dismissing with prejudice after ruling that a pre-trial delay of “four and one-half years is unquestionably substantial”); United States v. Bergfeld, 280 F.3d 486, 490 (5th Cir. 2002) (dismissing with prejudice after quoting trial court finding that “[f]ive years well exceeds a length of time that might be held to be presumptively excessive”). Indeed, under the Barker analysis, delays of just one year are “presumptively prejudicial.” Doggett at 505 U.S. at 652 n.1, 112 S. Ct. at 2690 n.1.

“There is no set length of time that fixes the point at which delay is excessive.” State v. Tsetsekas, 411 N.. Super. at 12.  In Cahill, the Court instructed that a gauge to a “presumptively prejudicial” delay is “the amount of time customarily required to dispose of similar charges.”  State v. Cahill, 213 N.J. at 265.  Here, this is an assault case that involves only one defendant.  It is not a complicated case and the state is not performing further investigation into the facts of case.  In fact, the state had finished its investigation in 2011.  It should have taken no more than 2 years for the adjudication this case. In State v. Tsetsekas, the Court found that 344 days, “more than five times the stated [Supreme Court] objective” … weighted heavily for the defense. State v. Tsetsekas, 411 N.J. Super. at 11. See also United States v. Valentine, 783 F.2d 1413, 1417 (9th Cir.1986) (six-month delay is a “borderline case”).  See also United States v. Velazquez, 749 F.3d 161, 174 (3d Cir. 2014): “In weighing all the factors, we concluded that the [6.5 year] delay violated Velazquez’s constitutional right to a speedy trial, and that dismissal of the indictment was required”. Id. at 186.

Here, there is a more than 2,450-day (81-month) delay since the indictment in September 2011 and most of the delays have been caused by the failure of the judge(s) to timely rule on motions to change venue (it took 3 years to rule on that motion and only after continued inquiries by the Defendant) and by at least 2 or 3 changes in the Passaic County prosecutors on the case (this caused an additional 2 years in delays attributed solely to the state).  Thus, the case must be dismissed with prejudice.  These enormous delays are presumptively prejudicial, considering that the defendant is a licensed expert witness whose reputation has been tarnished by the charges and cannot earn a living.  Even worse, the physical setting of the property where the alleged offense occurred has been drastically changed by the new owner of the property and the jurors will not be able to assess the truthfulness of what the sheriff employees claim.  Judge Guida in his oral opinion referred to this torturous delay as “almost unconscionable”.  This factor weights very heavily in favor of the Defendant.

Assertion of Right

The Defendant first asserted his right to speedy trial before Judge Filko and Judge Reddin in 2012.  He also continued to assert his speedy trial rights throughout the proceedings.  In addition, a defendant does not have an obligation to assert his right to a speedy trial because he is under no obligation to bring himself to trial. Cahill, at 266. Court delays are charged to the State, not to the Defendant. State v. Farrell, 320 N.J. Super. at 450-451.  This factor weights in favor of the Defendant.

Reason for the Delay

The government bears the burden of justifying the delay in bringing a defendant to trial. Battis, 589 F.3d at 680 (citing Hakeem, 990 F.2d at 770). “In evaluating this factor, we subtract the amount of delay caused by the defendant from the delay caused by the Government.” Id. (citing United States v. Dent, 149 F.3d 180, 184-85 (3d Cir. 1998)). In Battis, we set forth the three categories of delay and the resulting weight each carries against the government: (1) “A deliberate effort by the Government to delay the trial in order to hamper the defense weighs heavily against the government;” (2) “A more neutral reason such as negligence or overcrowded courts also weighs against the Government, though less heavily;” and (3) “a valid reason, such as a missing witness, should serve to justify appropriate delay.” Id. at 679 (internal quotation marks and citations omitted). “By contrast, delay caused by the defense weighs against the defendant.” Id. at 680 (internal quotation marks omitted).

This case has a very detailed record that explains that most of the delays have been caused by the government, and particularly the courts in delaying the adjudication of the Motion to Change Venue.  It took 6.5 years for the courts to correctly decide on that motion to change venue filed in early 2013.

There have been several judges assigned to this case since 2011:

·         Judge Reddin (from October 2011 to November 2011)

·         Judge Filko (from November 2011 to March 2012)

·         Judge Yablonsky (from March 2012 to May 2012)

·         Judge de la Carrera (from mid-2012 to May 2016);

·         Judge Caposela (from May 2016 to September 2018, after removing Judge de la Carrera from the case for failing to timely rule on motions);

·         Judge Clark (from September 2017 to December 2017)

·         Judge Guida (from February 2018 to present)

Judge De la Carrera never addressed the 2013 Motion to Change Venue until late 2015. It took the judge three years to decide a motion that only should take few minutes to few days to decide.  Due to the case delays caused by the judge, the assignment Judge Ernest Caposela removed Judge De la Carrera from the case in May 2016.  Therefore, these 3 years of delays are attributed to the state and not the Defendant. 

After that, Judge Marilyn C. Clark took over the case, but determined that the case was improperly kept in the Passaic Vicinage and should have been transferred to another county due to the conflicts of interest and to avoid the appearance of improprieties. The case was transferred to Judge James Guida in Bergen County for adjudication in January 2018.  So, we have an additional 2 years of delays from the firing of Judge De la Carrera to the transfer of the case to Judge Guida.  The Defendant has nothing to do with these delays.  These additional 2 years of delays are squarely the fault of the court(s).

In February 2018, Judge Guida stated in his Chambers to Mr. Feinstein that all the delays are attributed to the court(s) and not to the defense.  Judge Guida also repeated this statement in open court that same day.  In a stunning reversal of that statement, Judge Guida stated on May 24, 2018 that the case delays are attributed to the Defendant, when in fact Defendant has been asking for a speedy trial since the hearing before Judge Filko in 2011 and was sent to jail for 64 days between March and May 2016, because he asked too many times for the judge(s) to expedite the case.  On June 4, 2018, the trial court corrected the record to state that Mr. Feinstein that only asked for 31 adjournments and not the 80 adjournments assigned to him on May 24, 2018.  Therefore, the majority (44+) adjournments were caused by the courts and not the defendant. 

The government's negligence or recklessness, which is the reason for the delay, weighs in Stephanatos’ favor.   See Barker, 407 U.S. at 531, 92 S.Ct. 2182 (the government's negligence should weigh less heavily in defendant's favor than does a deliberate delay, but “nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant”).

A mere presence of court backlog or overcrowded case load is insufficient to justify delay by prosecution. United States v. Goeltz, 513 F. 2d 193, 197, (10th cir. 1975).   Here, Judge De la Carrera took almost 3 years to decide a Motion to Change Venue, instead of deciding it within 30 days or less- that is clear negligence or recklessness in performing his judicial duties. He was in fact removed from the case by the Assignment Judge Ernest Caposela due to such recklessness.   And even worse, he decided the motion to change the venue incorrectly, due to the significant conflicts of interest and the appearance of impropriety by having sheriff employees and a judge or two still working at the Courthouse in Passaic County and being also witness for the state- this is also evidence of negligence.  These delays and squarely wrong decisions on the Motion to Change Venue, cannot possibly be attributed to the Defendant; yet Judge Guida indicated that all the delays are attributed to the defendant!  This is a 180-degree reversal of what Judge Guida said in the February 8, 2018 hearing when he stated that “the delays are not attributed to the defense or the prosecution, but they are attributed to us [the judiciary]”. 

To the extent that the Defendant's counsel waived time or requested continuances, this would not be attributed to Defendant, due to counsel's actions contradicting the best interest of Defendant.  Regardless of Defendant being bound by counsel's actions, defense continuances don't excuse lengthy delays in the disposition of a case. United States v. Lam, 251 F. 3d 852 (9th Cir. 2001).  

Defense attorneys cannot unilaterally continue cases. Continuances can only be accomplished with the agreement of the prosecution or the court.

Even more important, the defense continuances that Judge Guida cited were in fact approved by the prosecutor(s) and the court.  If the prosecutors or the court had any problem with the continuances, they should have objected; but they did not – they went along with them.  Judge Guida made a huge, enormous, gigantically enormous crucial error in assigning the delay caused by continuances to the Defendant.  It was all on the Judge(s) and the prosecutor who agreed to those continuances.  There is no record that shows that Defendant signed off on any continuance.

It is important to note that on May 24, 2018, Judge Guida claimed that Miles Feinstein applied for 80 continuances out of a total of more than 100.  However, upon reconsideration, the trial court admitted that Mr. Feinstein only applied for 31 continuances, out of a total of 75.  Yet, Judge Guida failed to reverse his order denying the dismissal of the indictment; this a clear abuse of discretion.  The judge claimed that he had a special order from the Chief Justice to bring the case to trial.  Defendant is speechless, as the Chief Justice cannot possibly ordered Judge Guida to violate the speedy trial rights of the Defendant.

Defense attorneys and Defendant have no power.  Defense counsel can only react to the system that the courts and the prosecution have consciously devised or that has evolved over the decades.  It was squarely the responsibility of the judge and the prosecutor to prevent the 7-year delay in the case and not that of Miles Feinstein or the Defendant.

The record shows that the Defendant continued to send letters to Judge De la Carrera and, when he was removed from the case, to Judge Ernest Caposela, asking for his speedy trial rights.  After De la Carrera was removed from the case in May 2016 by Judge Caposela (I was told that this was a truly remarkable and unprecedented event in the history of the Passaic County court), it has taken another two (2) years to reach the point we are now.  And only because Defendant continued to inquire with Judge Caposela regarding the adjudication of the case on a speedy basis.

In addition to that correspondence, the defendant has been asking his former lawyer Mr. Miles Feinstein, Esq. on a weekly basis to move forward with the case on a speedy basis and to inform the Court that the defendant wanted to exercise his speedy trial rights.  Therefore, this balancing factor weighs in defendant’s favor, because Defendant was not the reason for the delays.

The trial court also conveniently ignored the crucial fact that the former prosecutor on the case, Peter Roby was removed from the case in June 2016 and a new prosecutor was assigned (Mr. Nubar Kasaryan).  After one to two years, a new prosecutor was assigned to the case (Mr. Stephen Bollenbach).  Thus, the trial court’s statement that the state prosecutors did not cause any delays and was always ready to proceed with the trial, is clearly erroneous.  Equally important, the state has not complied with the discovery requests of the Defendant.

On November 6, 2017, after having been assigned the case from Judge Caposela, Judge Marilyn C. Clark indicated that the case will be transferred to Bergen County Courthouse for adjudication due to the conflicts of interest that were described in Defendant’s 2012 Motion to Change Venue.  Judge Clark and Judge Caposela were dumbfounded as to why the case was not transferred at the time (2012) to another county due to the significant conflicts of interest, involving at least 5 or so sheriff employees still working at the Passaic County Courthouse who would be witnesses for the state; and the former Chancery Court Judge McVeigh would also be a witness for the state.  Then, in late December 2017, after another request by the Defendant to expedite the case, the presiding Judge Marilyn Clark transferred the case to Bergen County (the case transfer order was signed by Judge Caposela).

Based on these facts, the Defendant has done everything humanely possible to expedite the adjudication of the case.  All these case transfer delays were caused by the state judiciary in wrongly deciding the Motion to Change Venue and are squarely attributed to the State.  Court delays are charged to the State, not to the Defendant. State v. Farrell, 320 N.J. Super. at 450-451.  Yet, Judge Guida attributed the delays to the Defendant!  This is an extraordinary error committed by the trial court, requiring reversal.

I report below a state case where the charges were dismissed because the state failed to provide discovery to the defendant for 531 days (about 1.45 years).  Here, we did not have complete discovery despite the passing of seven years since the events of June 28, 2011. The Appeals court reasoned that the defendant's speedy trial rights were violated even though the defense attorney wasn't "energetic in his demands" for discovery. State V. Downs, Docket No. A-0, N.J. Superior Court, Appellate Div., February 14, 2014.

See also the April 2014 letter to Judge De la Carrera where he stated:

Thus, my concern is that if it takes more than a year to rule on a motion to change venue, how long will it take to adjudicate the 25+ motions we have put together for dismissal of the tainted and/or fraudulently procured indictment?  I have suffered significant economic and non-economic damages and I continue to suffer significant economic and non-economic damages every day this case is delayed.   I am urging this Court to read these documents into the record, including my concerns with all the delays in proceeding with the motions. 

Source: Letter from the Defendant to Judge De la Carrera, dated April 21, 2014.

This Court also stated that the Defendant should have fired his lawyer.  But Defendant did just that many times, as is evidenced in the October 12, 2015 letter to Judge de la Carrera, entitled, “The Decision to Remove Mr. Feinstein from the Case”..  Here is an excerpt from that letter:

For the last 4 years Mr. Feinstein has been giving me one excuse after the other, delaying the adjudication of the case.  Upon my numerous inquiries and complaints about these unacceptable delays, he did blame this court for the case delays; he suggested that we file a complaint or ask for the disqualification of this court for failing to rule on a simple motion to change venue over a period of 3 years. 

Source: Defendant’s letter to Judge De la Carrera, dated October 12, 2015.

Therefore, the Appellate Court must realize the superhuman efforts of the Defendant to assert his speedy trial rights.  Despite this significant effort, Judge Guida claimed that the overwhelming delays in this case were caused by the Defendant!  This is very significant and highly prejudicial reversible error committed by Judge Guida, requiring reversal of that decision.  The trial court abused its discretion by refusing to dismiss the indictment.

In State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977) the Appellate Division ruled that A determination by a trial judge on whether defendant was deprived of right to speedy trial should not be overturned unless "clearly erroneous."   Here, the factual determinations by the trial court are clearly erroneous, necessitating an overturning of that determination.

Prejudice

In Cahill, the Court explained that the “minimization of anxiety attributable to unresolved charges” is one of the interests the speedy trial right is designed to protect. Id. at 266. “A speedy trial violation can be established without evidence of prejudice.” Id. at 274 (citing State v. Farrell, supra., 320 N.J. Super. at 446. The Cahill Court explained, “every unresolved case carries with it some measure of anxiety.” Id.  “This is particularly true when one of the sanctions [for DWI is] a license suspension.” Id.

The court instructed in State v. Farrell, “prejudice to a defendant resulting from delay is no longer confined to inability to defend on the merits.  Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution and the like.” State v. Farrell, 320 N.J. Super. at 452.  Likewise, the Court in Tsetsekas recognized that “significant prejudice may also arise when the delay causes the loss of employment or other opportunities, humiliation, the anxiety in awaiting disposition of the pending charges, the drain in finances incurred for payment of counsel or expert witness fees and the other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances. State v. Tsetsekas, 411 N.J. Super. at 13.

The fourth factor, prejudice, is presumed since the seven-year delay from arrest to trial is wholly chargeable to the government. See, e.g., United States v. Ingram, 446 F.3d 1332, 1340 (11th Cir. 2006) (holding in a case of a two-year post-indictment delay that the defendant “need not demonstrate actual prejudice resulting from the delay” because “[t]he first three Barker factors all weigh heavily against the Government.”).

Here, the Defendant has suffered a very significant prejudice because his lawyer on the case, Mr. Miles Feinstein, Esq. became severely ill and dropped out of the case on February 8, 2018.  The Defendant has suffered a massive blow to his ability to defend the case, because Mr. Feinstein is a great trial lawyer and was intimately involved with the case since 2012.  This prejudice to the Defendant has been caused solely by the extraordinary 81-month delay in the case.

Furthermore, Defendant has suffered very significant losses of employment, as employers performed background checks and refused to hire defendant, even after they made employment offers.  In addition, defendant lost several professional licenses due to the outstanding charges, leading to further economic losses.  Defendant also has not been able to obtain state licenses (including the New Jersey Licensed Site Remediation Professional license) to do professional work because of the pending, unresolved charges.   Even worse, Defendant was scheduled to sit for the California Bar exam in July 2011.  Defendant lost also this ability to sit for the bar exam due to the events of June 28, 2011.  Several New Jersey licensing boards even denied defendant the application to sit for exams, causing defendant to lose very significant business and/or employment opportunities.  The net result of these prolonged delays is potentially multi-million dollars in economic damages, anxiety and enormous stress in both the financial and personal life of the Defendant.

As a professional expert engineer, defendant has also suffered irreparable reputation loss that essentially destroyed his career that he worked many decades to build.   These unresolved (not to mention fraudulent) charges have destroyed the Defendant economically and reputationaly.  Due to these losses and the continued and unresolved prosecution Defendant suffers from anxiety, humiliation and withdrawal from social events.  Both his personal and professional life is essentially destroyed by the failed resolution of the pending wrongful charges.

As was also explained under the section “The Reason for the Delay”, the long delay has already prejudiced the defendant because the landscaping at the subject dwelling where Lucas was peering through the side window has been changed through the removal of the yews and rhododendrons and the big planters and the pet tower.  Furthermore, defendant is prejudiced because he has been concerned that along with the bushes, the sheriff may have destroyed videotaped and audiotaped evidence that is exculpatory to the defendant. 

Finally, but not least, my lawyer of 6 years on this case, Mr. Miles Feinstein, became very ill and had to drop out of the case in February 2018.  This will most likely affect the ability of the Defendant to defend these charges, as Mr. Feinstein was a great trial lawyer. These are some very serious prejudices that hamper the defendant’s defense and they are the sole creation of the state. Therefore, this factor also weighs heavily in favor of the Defendant.

Conclusion

In a 180-degree reversal of his February 8, 2018 statement in Chambers to Mr. Miles Feinstein and in open court, Judge Guida erroneously attributed most of the 2,500-day (81-month) delay in the case to the Defendant by falsifying the continuance records; this is unfathomed and goes against the factual record cited herein.  When Judge Guida was confronted with the correct evidence showing that Mr. Feinstein only adjourned the case 31 out of 75 times, then Judge Guida changed his tune and said that he has a special order to bring the case to trial.  This is clearly erroneous.  Later, on June 13, 2018 during a hearing after a Motion to Recuse based on Disqualification, Judge Guida admitted that he had no special order from the Chief Justice to bring the case to trial.

The factual determinations made by Judge Guida were in clear error and highly prejudicial, especially after he failed to state that there has been already a change of several prosecutors on the case, causing delays.  The failure to dismiss the indictment is an abuse of discretion. The finding of no speedy trial right violation was a clear error.  All these errors and abuse of discretion require reversal.

In Carini, the Second Circuit charged to the government various delays for reasons less egregious than here.  The Court found that the great bulk of a 34-month delay was attributable to a judge’s illnesses, “the court’s summer recesses, unexplained inaction of the District Court, caused, no doubt, by an overloaded docket,” and the disqualification and death of other judges. Carini, 562 F.2d at 149.  All of this delay was charged to the government, although none of it was attributed to some improper government intent. Id.; see also New Buffalo Amusement Corp., 600 F.2d at 377-80 (finding a four-and-one-half year delay -- attributable to government inaction, over-crowded dockets, and “the trial court’s failure to rule expeditiously on appellants’ motions[]” -- warranted dismissal with prejudice).

 See also United States v. Pennick, 2^nd Circuit, 16-3069-cr, Nov. 2017, where the District Court and the Court of Appeals dismissed the indictment with prejudice because 6.5 and almost 8 years had passed since they issued their decisions.  The Second Circuit said that “Although some delay can be attributed to Pennick, such as delays arising from retaining four different attorneys, some delay can also be attributed to the government, such as for twice superseding the indictment, and much of the delay can be attributed to the court, as it candidly acknowledged, such as the delay in deciding motions. ʺWhile the government may have had little control over the ʹinstitutional delaysʹ more appropriately attributable to the court, ʹthe ultimate responsibility for such circumstances must rest with the government rather than the defendant.ʹʺ  cf. United States v. Bert, 814 F.3d 70, 85 (2d Cir. 2016) (commending the district courtʹs ʺhonest and unequivocal acceptance of responsibilityʺ for a Speedy Trial Act violation, but noting that ʺthe mere fact that a speedy trial violation is attributable to the court and not the government does not expunge that violation, nor does it automatically render the violation any less serious.ʺ).

Therefore, based on the above factual and legal record, the Court has expressed its decision based upon a palpably incorrect or irrational basis and against the vast number of similar cases from all federal circuit courts and courts of this state.  It is obvious that the trial court either did not consider, or failed to appreciate the significance of probative, competent evidence.  Therefore, reversal of the trial court’s May 24, 2018 order is required to correct these extraordinary factual and legal errors committed by Judge Guida, necessitating the dismissal of the indictment.