On December 2, 2013, a two-count criminal complaint numbered 1022-W-2013-000254 was issued against Brynn E. Kirby for theft (N.J.S.A. 2C:20-2b) and bad check (N.J.S.A. 2C:21-5) offenses. The charges arose out of Kirby having written a $325 dishonored check to Aurora Bianco-Gilliam for the purchase of beef. Since the check's amount exceeded $200, the Hunterdon County Prosecutor's Office was notified but that office declined to seek an indictment causing the charges to be prosecuted as disorderly persons offenses before the Readington Municipal Court.
Kirby appeared several times before Readington Municipal Court Judge Gerard J. Shamey. I have obtained the audio recordings of Kirby's appearances on July 24, 2014; December 11, 2014 and February 26, 2015.
- At the July 24, 2014 hearing, Shamey accepted Kirby's guilty plea to the bad check charge, dismissed the theft charge and assessed a $150 fine, $33 court costs, $75 Safe Neighborhood Fund Assessment and $50 Violent Crime Compensation Assessment for a total of $308. However, since Kirby spent 9 days in jail after her arrest, Shamey credited her time served reducing the amount she owed to zero.
- At the December 11, 2014 hearing, Shamey "vacated" Kirby's conviction and sentence entered at the July 24, 2014 hearing after Municipal Prosecutor Robert A. Ballard, Jr. stated that Bianco-Gilliam, who apparently had not been notified of the July 24, 2014 hearing, wished to provide the Court with a victim impact statement. (Since December 5, 1991, the New Jersey Constitution has recognized the right of crime victims. N.J.S.A. 52:4B-36(n) affords those victims the right "to make, prior to sentencing, an in-person statement directly to the sentencing court concerning the impact of the crime.")
- At the February 26, 2015 hearing, Kirby reappeared for sentencing. The same fines, costs and assessments were imposed, except that this time Shamey said that the jail time served could only go toward the fine but not toward the court costs and the Safe Neighborhood Fund and Violent Crime Compensation assessments. In addition, he sentenced Kirby, in accordance with a new plea agreement, to pay Bianco-Gilliam $361 in restitution. As a result, Kirby was required to pay $519 (i.e. $50 VCCB, $75 SNF, $33 costs and $361 restitution) when she was required to pay zero after the July 24, 2014 hearing.
I question whether Shamey's December 11, 2014 ruling that vacated the July 24, 2014 conviction and sentencing violated Kirby's rights under the Fifth Amendment. While a victim has a constitutionally-based right to make certain communications to a sentencing court, I don't believe that this right trumps a defendant's constitutional right to not be again exposed to punishment for the same crime for which he or she has already been convicted and sentenced.
This case is similar to the one considered by the New Jersey Supreme Court in State v. Means, 191 N.J. 610 (2007. In Means, the defendant had accepted a plea agreement but prior to sentencing the trial court granted the State's motion to vacate the plea agreement because the victims had not been consulted about the plea. The defendant later entered into a less advantageous plea agreement and was sentenced in accordance with that agreement. The Supreme Court, after stating that "the trial court should consider the concerns of the victim or the victim's family, but the court may not impinge on a defendant's constitutional rights," reinstated the defendant's original plea agreement.
In Means, the trial court vacated the plea prior to sentencing. In Kirby, Judge Shamey vacated the plea (as well as the conviction and sentencing) months after sentencing. Accordingly, it appears that Shamey's act was on shakier constitutional grounds than the trial court's decision in Means.