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 CONFIDENTIALITY NOTICE
The contents of this e-mail message and any
attachments are intended solely for the addressee(s) and may contain
confidential and/or legally privileged information. If you are the
intended recipient, be aware that your use of any confidential or personal
information may be restricted by state and federal privacy laws. If you
are not the intended recipient of this message or if this message has been
addressed to you in error, please immediately alert the sender by reply e-mail
and then delete this message and any attachments from any computer.
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.
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
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, 2nd
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.
