Friday, December 28, 2012

Improper Downgrading in Tenafly Municipal Court

Tenafly has an ordinance which makes any violation of the New Jersey Criminal Code also a violation of the municipal code.  The Tenafly municipal prosecutor then "downgrades" statutory charges to violations of this municipal code provision.  This allows the defendant to pay a fine but not get a criminal record.  Easy money for the Borough while nothing goes on the defendant's permanent record.  Below is my letter to the Bergen County Prosecutor, complaining of Tenafly's procedure.

But, the presence or absence of a criminal history informs the court of whether a defendant is a first-time or repeat offender thus allowing the court to better decide whether to show leniency or to give the defendant a more severe penalty.  Tenafly's practice undermines the court's decision-making because a defendant remains a "first-time" offender no matter many times he or she has offended previously.

Many courts throughout New Jersey "downgrade" statutory violations in this fashion, even though the practice has been specifically prohibited by a 1998 Attorney General Directive.  Court overseers turn a blind eye toward the practice because they fear that defendants, facing the prospect of being burdened with a criminal record, would start demanding trials instead of just pleading guilty to the ordinance violation and paying a fine.  The increased demand for trials would result in more and longer court sessions and require more resources to be directed to the municipal court system.

If the Attorney General's directive was strictly enforced, I would have sympathy toward some defendants--especially those charged with consensual crimes such as possession of marijuana--because they would face having a drug conviction on their records and risk driver licenses suspensions.  But, other defendants--those whose conduct actually hurts an identifiable victim, such as shoplifters, batterers and the like--should have a criminal record and repeat offenders should face more severe consequences including jail time.

In my view, we can't justify a "Let's Make a Deal" policy in our municipal courts because malum prohibitum laws are unjust.  Rather, we should seek to have the unjust laws repealed and insist on integrity within our municipal courts so that offenders are justly dealt with.

--Letter to Prosecutor's Office

December 27, 2012

Annmarie Cozzi, Esq.
Senior Assistant Prosecutor
via e-mail only to ACozzi@BCPO.NET

RE: Improper Downgrading in Tenafly Municipal Court

Dear Ms. Cozzi:

On March 9, 2010, you were kind enough to respond to my February 23, 2010 letter complaining that the Bogota municipal prosecutor was downgrading statutory charges to municipal code violations in a manner prohibited by the Attorney General's November 18, 1998 Directive.  For your ready reference, I have placed both my letter and your response on-line here and here.

A similar problem is present in the Tenafly Municipal Court, as shown by the four pages related to State v. Li, which are on-line here.  The first page shows that Li was, sometime prior to June 20, 2012 (probably June 12, 2012) charged under Complaint-Summons No. 0261-S-2012-00067 with being under the influence of a controlled dangerous substance (N.J.S.A. 2C:35-10B) and defiant trespassing (N.J.S.A. 2C:18-3B(2)), both of which are statutory offenses.

The second page shows that the CDS violation was, on August 15, 2012, resolved by way of a Conditional Discharge application while the defiant trespass charge was amended, at the prosecutor's request, to a violation of Tenafly Code Sec. 3-14.1.  The third and fourth pages are both sides of Summons-Complaint No. 0261-SC-005585, which was issued to Mr. Li on August 15, 2012--the same day that his plea agreement was negotiated.  That summons shows that Mr. Li was charged with violating Tenafly Code Sec. 3-14.1 on June 12, 2012 and assessed fines and costs of $139.

Tenafly Code Sec. 3-14.1 states:  

Breach of Peace: No person shall conduct himself/herself upon the street or in private places within the Borough in a manner contrary to the provisions of Title 2A of the New Jersey Code of Criminal Justice. (Ord. No. 937 § 2; New)
The thrust of the code provision, which was apparently written prior to the codification of the Criminal Code in Title 2C, is to make any violation of the State's penal code also a violation of Tenafly's municipal code.  Taken to its extreme, Tenafly's code section purports to make murder, which is prohibited by N.J.S.A 2C:11-3, to also constitute a municipal code violation.

I cannot imagine a more blatant example of a preempted local code provision than one which attempts to shoehorn New Jersey's entire penal code within a single ordinance prohibition.  I hope that you will agree, without further elaboration by me, that Sec. 3-14.1 is clearly preempted and that downgrading statutory provisions to it violates the Attorney General's directive.  So that you don't think that Li is an isolated example, I've placed on-line here showing the Tenafly Municipal Court's similar treatment of State v. Orero.

Would you please let me know if you will tell Tenafly's prosecutor to stop violating the Attorney General's directive?

Thank you.

John Paff, Chairman
New Jersey Libertarian Party's
Preempted Ordinance Repeal Project





cc. Mayor and Council, Borough of Tenafly
via e-mail to the Borough Clerk at laportela@tenafly.net

Hon. Roy F. McGeady, P.J.M.C., Bergen County Municipal Court Presiding Judge
via e-mail to Roy.Mcgeady@judiciary.state.nj.us

Hon. Allen M. Bell, J.M.C., Tenafly Municipal Court
via e-mail to abell@jacobsandbell.com

Mark Fierro, Esq. Municipal Prosecutor
via e-mail to mfierro@fierrolawnj.com