Tuesday, November 24, 2015

Hunterdon municipal judge jails and sets bail for divorce litigant in violation of statute and court rules.

Edward Romanowski, a pro se litigant in a very contentious Hunterdon County matrimonial action, has complained of mistreatment by the Holland Township Police and the Delaware Valley Municipal Court--a joint municipal court that covers Holland Township.  I've looked into his complaints and believe that they have merit.

At the center of Romanowski's complaint is his April 10, 2015 arrest while he was at the Hunterdon County Courthouse preparing to enter a Family Division courtroom for a hearing in his matrimonial case.  The arrest was effected by the Holland Township Police and arose out of Complaint-Warrant No. 1020-W-2015-000027 that charged Romanowski with harassment and making a false police report--both of which are disorderly person offenses.

There are three troubling things about the Complaint-Warrant.

1. While Romanowski's alleged offenses occurred on December 22, 2014, the Complaint-Warrant form wasn't drafted until April 8, 2015--about three and a half months after the offense--and only two days prior to Romanowski's arrest at the Courthouse.  Also, it was originally written up as a summons and was later replaced with a warrant.  If Romanowski presented a public danger sufficient to justify an arrest warrant, it seems as though the police shouldn't have waited over three months before securing the warrant.

2. As stated on the warrant, Municipal Court Judge Joseph S. Novak set Romanowski's bail at "$4,000/Full" meaning that he would need to deposit $4,000 in cash to secure his release from jail. According to the Bail Recognizance, Romanowski's surety wasn't able to raise that much cash until April 11, 2015 causing Romanowski to be held in jail overnight.  This appears to be wrong for two reasons:

a. New Jersey law, specifically N.J.S.A. 2C:6-1, limits the bail for disorderly persons offenses (Romanowski was charged with two disorderly persons offenses) to $2,500 "unless the court finds that the person presents a serious threat to the physical safety of potential evidence or of persons involved in circumstances surrounding the alleged offense or unless the court finds bail of that amount will not reasonably assure the appearance of the defendant as required.  The court may for good cause shown impose a higher  bail; the court shall specifically place on the record its reasons for imposing bail in an amount exceeding $2,500.00."

Yet, when I sent a written request to Delaware Valley Municipal Court Administrator Barbara Lingsch for Judge Novak's specific findings as to why the bail was more than $2,500, she would not respond to my request despite me calling and faxing that office for a response.  When I appealed Lingsch's refusal to respond to Vicinage 13 Trial Court Administrator Adriana M. Calderon, Calderon informed me that "the court does not have written or oral records as to the reason for the bail amount set."  Accordingly, Judge Novak violated the law by requiring Romanowski to deposit $4,000 bail without setting forth any reasons why the statutory $2,500 bail limit wasn't sufficient to protect the public's interest.

b. Court rule R.7:4-3(g) permits courts to allow a defendant to deposit ten percent of the bail instead of the full cash amount.  The ability to pay ten percent instead of the full cash bail is the default condition and "is presumed to be available to all defendants." State v. Casavina, 163 N.J.Super. 27, 31 (App.Div.1978). Further, "the burden of proving grounds for exclusion by a preponderance of the evidence rests with the State." Ibid. In this case, Judge Novak made no findings, and apparently received no argument from the prosecution, as to why Romanowski should not have been allowed to deposit 10% of the cash bail amount.

Absent specific findings, Judge Novak should have set bail at $2,500 and allowed Romanowski to be released from jail by depositing $250, i.e. ten percent, rather than the $4,000 he was required to deposit.

3.  Beyond the bail amount, there is a question as to the appropriateness of issuing a warrant, rather than a summons, against Romanowski

According to the warrant, Judge Novak considered Holland Township Patrolman Michael D. Bent's application for the warrant telephonically.  Telephone conferences are governed by R.7:2-1(e) which states:
R.7:2-1(e) Arrest Warrant by Electronic Communication. A judge may issue an arrest warrant upon sworn oral testimony of a law enforcement applicant who is not physically present. Such sworn oral testimony may be communicated by the applicant to the judge by telephone, radio, or other means of electronic communication. 
The judge shall administer the oath to the applicant. Subsequent to taking the oath, the applicant must identify himself or herself and read verbatim the Complaint-Warrant (CDR-2) and any supplemental affidavit that establishes probable cause for the issuance of an arrest warrant. If the facts necessary to establish probable cause are contained entirely on the Complaint-Warrant (CDR-2) and/or supplemental affidavit, the judge need not make a contemporaneous written or electronic recordation of the facts in support of probable cause. If the law enforcement applicant provides additional sworn oral testimony in support of probable cause, the judge shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine, if such are available; otherwise, adequate longhand notes summarizing the contents of the law enforcement applicant's testimony shall be made by the judge. This sworn testimony shall be deemed to be an affidavit or a supplemental affidavit for the purposes of issuance of an arrest warrant.
An arrest warrant may issue if the judge is satisfied that probable cause exists for issuing the warrant. Upon approval, the judge shall memorialize the date, time, defendant's name, complaint number, the basis for the probable cause determination, and any other specific terms of the authorization. That memorialization shall be either by means of a tape-recording device, stenographic machine, or by adequate longhand notes. Thereafter, the judge shall direct the applicant to print his or her name, the date and time of the warrant, followed by the phrase "By Officer _________________, per telephonic authorization by________________" on the Complaint-Warrant (CDR-2) form. Within 48 hours, the applicant shall deliver to the judge either in person or via facsimile transmission the signed Complaint-Warrant (CDR-2) and supporting affidavit. The judge shall verify the accuracy of these documents by affixing his or her signature to the Complaint-Warrant (CDR-2). 
Procedures authorizing issuance of restraining orders pursuant to N.J.S.A. 2C:35-5.7 (“Drug Offender Restraining Order Act of 1999”) and N.J.S.A. 2C:14-12 (“Nicole’s Law”) by electronic communications are governed by R. 7:4-1(c).
In accordance with this rule, if Patrolman Bent testified as to the need why a warrant--rather than a summons--was needed in Romanowski's case, Judge Novak was required to have made an oral recording or written notes "summarizing the contents of [Bent's] testimony."  Further he should have memorialized why a warrant was justified in an oral recording or written notes.  Additionally, Bent should have provided Judge Novak with another copy of the warrant and any supporting affidavit for the judge to sign to "verify the accuracy of these documents."  According to the response I received from Trial Court Administrator Calderon, however, none of these documents or audio recordings exist.