Tuesday, May 31, 2016

Passaic County teacher who had 15 year old student photograph her breasts on his cell phone served 14 months probation, now seeks expungement.

On May 12, 2016, I wrote an article about a female Passaic Valley High School student having received $35,000 from the school district to settle her lawsuit that claimed that one of her teachers engaged in inappropriate sexual behavior.  I have since learned that the teacher avoided a jail sentence, served an abbreviated probationary sentence and is now seeking to expunge from his record the conviction underlying the alleged misconduct.  Following is a chronology of documents related to the teacher's conviction and subsequent efforts to have the conviction expunged. 
August 7, 1997:

The teacher, Demetrick A. Williams, then 19 years of age, is convicted in Wayne Municipal Court of an amended charge of marijuana possession and fined $250.

September 9, 2008:

Regarding the charges relating to the female student, Williams waived indictment and the Passaic County Prosecutor filed an accusation charging Williams with Fourth Degree Child Abuse and Neglect, contrary to N.J.S.A. 9:6-3, for having "abused, abandoned, [having been] cruel and/or neglectful" of the female student.  Williams signed off on a plea form in which he recognized his exposure to a maximum sentence of eighteen months imprisonment and a $7,500 fine.  According to the plea form, the Prosecutor recommended a 180 jail term while the judge promised Williams would receive probation rather than a custodial sentence.  Williams also promised to "never seek employment teaching children."

In a transcript of his hearing before Judge Ernest M. Caposela, Williams admitted that in 2007 and/or 2008 he encouraged the "female, age 14 or 15, identified in [court] papers as C.C." to take his "cell phone on at least one occasion . . . into the girl's toilet room and photograph her private parts."  Judge Caposela told Williams that despite the Prosecutor having sought a 180-day jail term, that the court would "give [him] straight probation and not impose the 180 days in the county jail."

March 9, 2009:

A Judgment of Conviction is entered convicting Williams of N.J.S.A. 2C:24-4b(3) (Endangering the Welfare of a Child (Pornography)) despite the plea agreement having stated that Williams pleaded guilty to N.J.S.A. 9:6-3 (Child Abuse and Neglect).  Williams, who received credit for two days served in custody immediately after his arrest, was sentenced to two years of probation and ordered to pay various state assessments.  In sentencing Williams, Judge Caposela found that that mitigating factors "substantially outweighed" the aggravating factors.

June 10, 2010:
A judge (the signature is not legible) released Williams from probation after he served 14 out of the 24 months imposed. According to the Order for Early Discharge of Probation, Williams "has been fully cooperative . . . and remained out of trouble" and "is requesting an early discharge from Probation so that he can continue on with his life and put this matter behind him."

May 6, 2015:

Williams moved to correct the Judgment of Conviction to amend the charge from N.J.S.A. 2C:24-4b(3) (Endangering the Welfare of a Child (Pornography)) to N.J.S.A. 9:6-3 (Child Abuse and Neglect).  According to Williams' letter brief, "it is clear that a clerical error occurred" because had Williams been convicted of the Endangering charge, the probationary sentence he received would have been "impermissible."

September 18, 2015:

An Amended Judgment of Conviction is entered by Judge Caposela amending the charge for which Williams was convicted from N.J.S.A. 2C:24-4b(3) to N.J.S.A. 9:6-3.

December 9, 2015:

Williams filed Verified Petition for Expungement.  The Petition set forth Williams' prior marijuana charge, the Child Abuse and Neglect Charge, his early release from probation and argued that Williams is "entitled to have expunged the records of his arrests, and any and all records and information pertaining thereto."  Williams provided a Certification in which he acknowledged that he asked "a fifteen (15) year old student at Passaic Valley Regional High School, where [he] taught, [to] take a photograph of her breasts on [his] cellular phone" and said that he now "shudders to think now about how imprudent and shameful those actions were."

He went on to say that after his arrest, he accomplished several academic achievements including obtaining his master's degree from Montclair State, his doctorate in higher education and becoming an adjunct professor at Rowan University where he sits on Rowan's committee for dissertations.  He also cites his nine year marriage, two children and having obtained his black belt in Taekwondo.  Attached to the Petition are positive letters from Anthony Bien-Aime, All-Star Taekwondo & Fitness Head Instructor Edward Licerio, Jr. and Rashon L. Mickens, Principal of Abraham Clark High School in Roselle, NJ.

February 12, 2016:

In a letter to Judge Miguel A. de la Carrera, Passaic County Assistant Prosecutor Robert J. Wisse opposed Williams' expungement petition on two grounds.  First, Wisse argued that Williams needs to wait until June 7, 2020--ten years after he completed probation--before being eligible for expungement and that he hasn't established eligibility for the "shorter 5-year waiting period" because the documents that Williams said were attached to his petition "were not included in the expungement packet."  Weiss also argued that the Child Endangerment conviction renders the prior marijuana possessory conviction ineligible for expungement.  The Division of State Police made similar arguments in its objection.

February 27, 2016:

In his lawyer's letter to Judge de la Carrera, Williams agrees that the marijuana conviction is ineligible for expungement and said that his failure to include the exhibits w

As of the date of this writing, Judge de la Carrera will hear Williams' expungement petition on Friday, June 24, 2016.  Williams' lawyer is David J. Altieri of Galantucci, Patuto, De Vencentes, Potter & Doyle of Hackensack.

Saturday, May 28, 2016

Newark lawyer alleged to have improperly represented both driver and owner in uninsured vehicle case.

On March 14, 2016, the District VA Ethics Committee filed a formal complaint against a Newark lawyer for representing both a man and his ex-wife in the Woodland Park Municipal Court on a charge of operating a vehicle without insurance.

Underlying the ethics complaint is N.J.S.A. 39:6B-2 which imposes penalties on a driver "who knows or should know from the attendant circumstances that the" vehicle is uninsured and also on an owner "who operates or causes [the uninsured vehicle] to be operated." 

Ethics officials say that Kenyatta K. Stewart, a partner in the Newark law firm of Hunt, Hamlin & Ridley, represented both the owner and the driver and claim that such a dual representation "created a substantial risk that representation of [one client] will be limited by [Stewart's] responsibility to the other."  Officials also assert that Stewart violated the Rules of Professional Conduct by not obtaining written "informed consent" from both the driver and the owner before undertaking the dual representation.

According to the complaint, Stewart entered a court appearance for both Monroe Gilbert, the driver of the vehicle and Brenda Gilbert, who is Monroe's ex-wife and owner of the vehicle that Monroe was driving when the summons was issued.  Stewart was retained by Monroe and officials claim that Stewart "did not have a formal written retainer agreement with [Brenda]."

Brenda pleaded guilty to the charge and was sentenced by Judge Toni Belford Damiano to pay $439 in fine and costs and to serve 30 days community service.  Brenda's conviction was later overturned after she filed a motion for post-conviction relief and Monroe pled guilty to the charge.

In his response, Stewart conceded that he entered an appearance on Brenda's behalf "without indicating that [he] was doing it as a friend of the Court."  He also asserted that "both parties were aware of their possible penalties and wanted to go forward." 

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on this matter may complete and send a hearing request form to Ethics Secretary Natalie S. Watson via fax to 973-624-7070.

Thursday, May 26, 2016

Camden County lawyer alleged to have improperly pursued fee lawsuit against client.

Update: On January 23, 2017, a hearing panel, by a 2 to 1 vote, recommended a reprimand for Ciardi.
On March 3, 2016, the District IV Ethics Committee filed a formal complaint against a Haddonfield lawyer for allegedly executing a $97,136 judgment against a client despite a Fee Arbitration Committee's ruling two years earlier that the lawyer wasn't entitled to the fee.

According to the ethics complaint, Albert A. Ciardi, III, a partner in Ciardi Ciardi & Astin, filed a 2007 bankruptcy petition on behalf of a corporate client and later billed Thomas Tomei, a principal of the client, for legal fees arising out the bankruptcy filing.  Ciardi then allegedly sued Tomei in Pennsylvania without first notifying him of his right to seek arbitration through the New Jersey Supreme Court's Fee Arbitration Committee.  Ciardi allegedly failed or refused to stay the court action after Tomei filed for fee arbitration and continued to pursue the $97,136 judgment two years after the Fee Arbitration Committee ruled that no fee was owed.

Ciardi, through attorney Carl D. Poplar of Cherry Hill, has contested the allegations and asserts that the allegations, if true, do not constitute a violation of the Rules of Professional Conduct.   Presently, the allegations against Ciardi remain unproven and the burden of proof rests with ethics authorities.

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on this matter may complete and send a hearing request form to Ethics Secretary John Palm via fax to 856-783-5464.

Tuesday, May 24, 2016

Did Willingboro Township abuse the Doctrine of Necessity?

On May 17, 2016, the five-member Willingboro Township Council (Burlington County) invoked the "Doctrine of Necessity" and then voted 3 to 2 to defend and indemnify its deputy mayor against a defamation lawsuit brought by the mayor.

The Council consists of Mayor Anderson, Deputy Mayor Walker and members Jennings, Nock and Holley.  Anderson is the plaintiff in the defamation suit and Walker is the defendant.  Jennings submitted an affidavit in the lawsuit in support of Anderson. 

If we grant, as the Township did, that Anderson, Walker and Jennings are all conflicted from voting on whether Township taxpayers should underwrite Walker's costs of defending against Anderson's lawsuit and paying Anderson damages if he prevails, there would only be two Council members left--Nock and Holley--who could permissibly vote on the issue.  Since those two members do not constitute a quorum of the five-member Council, the lack of a quorum, in the normal course, would prevent a vote on this issue.

New Jersey, however, recognizes a "Doctrine of Necessity" that in some cases permits public officials to vote on a matter even if they are in conflict.  But, the Doctrine may only be resorted to when there is "an imperative reason for it, in order to prevent a failure of justice [and] arises in situations of stern necessity." Griggs v. Princeton Borough, 33 N.J. 207, 220-21 (1960).

While having the taxpayers defend and indemnify him is clearly imperative to Walker, I don't believe that it is of much importance to Willingboro taxpayers.  And, the taxpayers' interests (and not Walker's) is what matters.

Perhaps a Willingboro resident might file an action in lieu of prerogative writs to set aside Resolutions 2016-102 and 103 within the statute of limitations, which I believe, after consulting New Jersey Court Rule 4:69-6, to be 45 days.  That would be an interesting court case to follow.

Monday, May 23, 2016

Lawyer cited for not returning cash he found in bank's drive-up teller container.

On April 1, 2016, the Office of Attorney Ethics filed a formal complaint against a Monmouth County attorney for taking $1,185 in cash that he found in a pneumatic air tube container when he stopped to make a drive-up bank deposit. 

According to the complaint, Hazlet attorney Marc B. Schram, who has been a lawyer since 1984, found an envelope containing $1,185.65 in cash and another bank customer's driver license in a pneumatic container on February 25, 2015 when he went through the drive-up window at the TD Bank branch at Bethany Road, Hazlet.  The money and license were left in the container by a previous customer who had cashed a payroll check but was distracted by a cell phone conversation.

The previous customer quickly realized his mistake and returned to the bank to find only $.65 and his license.  Police were called and an examination of the video surveillance tape showed that Schram arrived at the drive-up window one minute after the other customer had departed.  According to the complaint, Schram "opened the envelope, counted the money and removed the cash from the envelope" and left the drive-up window two minutes later "without conducting a transaction."  Schram reportedly admitted to detectives that when he saw the cash, he "didn't know what to do [and] had a momentary lapse of reason" and ultimately decided to take the money "because it was there." 

A criminal complaint was resolved by Schram reimbursing the owner of the cash and successfully completing a Pre-trial Intervention program.  As required by ethics rules, Schram self-reported the matter to ethics authorities and a formal complaint was filed against him.  As of May 19, 2016, Schram hadn't yet filed a response to the complaint but has retained a lawyer, Marc D. Garfinkle of Morristown, to represent him.

According to Schram's website, he has served as public defender in Old Bridge and Aberdeen and as Special Counsel for Monmouth County.

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on this matter may complete and send a hearing request form to the Office of Attorney Ethics in care of Barbara Cristofaro via fax to 609-530-5238.

Tuesday, May 17, 2016

South Jersey Mayor who resigned in in wake of employee complaints lands position in another town.

On April 25, 2016, I blogged about a Judson Moore, who abruptly resigned as Mayor of Commercial Township (Cumberland County) on March 12, 2016 after having been informed that "four different township employees" had filed complaints that were "directed towards" him.  Today, I learned that a Salem County township gave him a job on May 12, 2016.

In a resolution passed on May 11, 2016, the Pittsgrove Township (Salem County) Committee installed Moore as its "Public Works Manager" at an annualized salary of $5,000.  The resolution set Moore's term to expire on December 31, 2016 and said that state law requires the Township to have a Public Works Manager on staff.

Lawyer cited for losing woman's deceased son's "pictures and special mementos."

On March 1, 2016, the District XII Ethics Committee filed a formal complaint against a Union County attorney for losing "an album that consisted of [a woman's] son's pictures and special mementos" that the woman had given to the lawyer to help with a wrongful death lawsuit that the lawyer filed on her behalf.

According to the complaint, after Marie E. Edmond's (also referred to as Maria E. Edmond) son, Brian Jean-Joseph, drowned in 2002 she hired attorney Robert A. Lord of Mountainside (Union County) to represent her in a wrongful death action against the owner of the lake--Sunset Lakes Community Club, Inc.--as well as other defendants.  Edmond was asked "to put together a collection of her son's pictures and special mementos of him throughout his life, for the Court to see."  The 2007 trial resulted in "a no cause of action to the primary defendant" (presumably Sunset Lakes) which  was affirmed by the Appellate Division in 2009.

Four years later--in June 2013--Edmond requested her son's file and his pictures and mementos.  After some initial delay, Lord admitted that "the underlying case file has been lost and misplaced."  In some correspondence leading up to the complaint Lord said that he felt "awful that the file is not in my office."  In his formal answer to the complaint, Lord argued that losing a client's file is "simple negligence" that does not support an ethics charge against him.  Lord also placed some blame on Edmond for waiting four years before asking for her son's property.

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on this matter may complete and send a hearing request form to the District XII Ethics Committee in care of Secretary Michael F. Brandman via fax to 908-272-0525.

Sunday, May 15, 2016

Judge: Medford police officer not entitled to automatic sergeant re-promotion.

On April 29, 2016, a Burlington County Judge rejected a Medford Township police officer's bid to be re-promoted to sergeant--a rank that he previously held but relinquished in 2012 due to the Township's decision to economize by decreasing the number of police officers and their ranks.  On May 17, 2016, however, the officer appealed the judge's decision.

In his July 2015 lawsuit, former Sergeant Troy Chenier argued that since he accepted the demotion to accommodate the Township economy goals, a state statute required his automatic re-promotion when a sergeant's position opened up.  He claimed that he was entitled to the re-promotion even though he was further demoted for disciplinary reasons after he accepted the demotion from sergeant to corporal.

Chenier and his attorney, F. Michael Daily, Jr. of Westmont, based their claim on N.J.S.A. 40A:14-143 which states:
The governing body of any municipality, if they shall deem it necessary for reasons of economy, may decrease the number of members and officers of the police department or force or their grades or ranks. In case of demotion from the higher ranks, the officers or members to be so demoted shall be in the inverse order of their appointment. When the service of members or officers is terminated, such termination shall be in the inverse order of their appointment. Any member or officer who is demoted or whose service is terminated by reason of such decrease shall be placed on a special employment list, and in the case of subsequent promotions, a person so demoted shall be reinstated to his original rank and in the case of termination of service and new appointment, prior consideration shall be given to the persons on said special employment list.
But, Township officials argued that Chenier's post-demotion conduct, including a 2013 incident at Tri-County Swim Meet justified the Township's decision to not automatically re-promote him.  According to the court's ruling, Chenier allegedly "yelled and cursed at the Swim Club's Treasurer, screamed at the event's co-chair, berated an elderly couple, acted threateningly towards a female volunteer who asked him for directions, and 'simulated (with his hands and mouth) pulling a pin from a hand grenade and throwing it at the swim club,'" He also allegedly "asked for the names of the members of the public who reported him so he could issue them motor vehicle summons for violations he observed while working the swim meet detail."

In a 24-page written decision, Burlington County Assignment Judge Ronald E. Bookbinder rejected Chenier's claim ruling that N.J.S.A. 40A:14-143 must be read "sensibly, rather than literally."  Judge Bookbinder wrote that N.J.S.A. 40:14-129, which required that "that 'merit' be given 'due consideration' with respect to the promotion of any police officer to a superior rank," demonstrated that the Legislature did not intend to require local governments to automatically re-promote officers regardless of their disciplinary records.

In his April 29, 2016 Order, Judge Bookbinder dismissed Chenier's complaint because "there exist no further legal or factual issues to be determined by this court."

Chenier's appeal will probably be decided between a year and eighteen months from its filing.