Overview: The Appellate Section of the Essex County Prosecutor’s Office is the largest county prosecutor’s appellate practice in the State, handling appeals from lower court decisions. The Section is staffed with nine attorneys, including the director, three clericals and several legal interns. While past practice was to include Appellate in a general rotation leading to a Trial slot, that is no longer the case. All of the attorneys assigned to the Section are career appellate lawyers. Consequently, the quality of the work produced by the Section has been consistently high. Every Supreme Court brief is read by at least two supervisors, and a moot court is conducted for arguments in the Supreme Court, the Court of Appeals for the Third Circuit, and every significant argument in the Appellate Division.
The Section routinely initiates its own appeals from adverse pre-trial and post-trial rulings, with the result that a number of cases, which were actually or effectively barred from trial, were successfully reinstated. The Section also works directly with Adult Trial Section staff by assisting or taking over some of the more difficult trial motions, by serving in a consulting capacity for trial attorneys, by providing legal updates and case summaries, by distributing memoranda on significant legal issues, and by running training programs in areas of need. The Section has also created and maintained a network brief bank available to the entire staff via their personal computer.
In 2016, the Section also included the county’s Police Legal Advisor, a seasoned attorney always on call to answer questions from law enforcement officers in the field, and who regularly teaches both police recruits and experienced officers. When unavailable, calls from the field are handled by any one of the Section’s Assistant Prosecutors.
The Appellate Section oversees and coordinates the ECPO Internship Program. Each year, in the Spring, Summer, and Fall, students from colleges and law schools around the country are assigned to units throughout ECPO and provide valuable assistance to the attorneys and support staff they work alongside. Third-year law students also appear in court, and write briefs to both the trial courts and the Appellate Division.
• Represent and argue in court on behalf of the State in appeals and motions referred to the Essex County Prosecutor by the State Attorney General. This includes matters calendared for excessive sentencing oral arguments (ESOAs).
• Capital litigation – pre-trial and post-conviction.
• Institute our own appeals including emergent and interlocutory appeals.
• Respond to Petitions for habeas corpus relief in the Federal courts.
• Legal advisor to the trial assistants.
• Back-up to the Police Legal Advisor.
• Provide Assistant Prosecutors with information on new cases, new laws, etc.
• Co-ordinate the assignments of municipal appeals.
• Co-ordinate the assignments of PCR petitions.
• Represent the County in Federal Megan Law Cases.
• Represent the County on all gun permit appeals.
• Review all name change applications filed in this County.
• Obtain court orders for production of witnesses out of state, and for telephone records.
• Lecture at the Police Academies.
• Maintain and update brief bank.
• Interview, place and supervise college and law interns, including arranging for tours of the County Jail, the State Medical Examiner’s Office, and the Essex County Police Academy, as well as organize a lecture series during the summer.
• Trial attorney input – trial assistants are now informed of cases which they have prosecuted and are now on appeal. The assistants are given copies of defendants’ briefs when the appeals are referred to this Office for handling. They are then encouraged to speak with the appellate attorney who is assigned to the particular case.
• Peer review of briefs – appellate attorneys are now assigned to supervising appellate attorneys. One of the goals is to ensure that the attorneys are not taking inconsistent positions on the various issues we face. Another goal is to monitor the quality of the work we submit to the courts. This review has demonstrated that the Appellate Attorneys have always been filing briefs that have been outstanding and very well prepared.
• Maintenance of the brief bank.
• Obtained dismissals or denials in all our habeas cases for the last several years.
Significant 2016 Cases:
Supreme Court of New Jersey
State v. Goodwin: After the Appellate Division reversed defendant’s conviction for insurance fraud, the Supreme Court granted ECPO’s petition for certification and unanimously held that a person violates the insurance fraud statute, N.J.S.A. 2C:21-4.6(a), even if an insurance carrier is not induced by that person’s false statement to pay a damage claim.” Goodwin is one of only two published opinions to address this statute.
State v. Thompson: After the Appellate Division reversed defendant’s convictions for murder and other offenses in a published opinion, the Supreme Court granted ECPO’s petition for certification and unanimously held that the trial record amply demonstrated that the prosecutor did not discriminate on the basis of race during jury selection, the trial court conducted an adequate analysis on this issue, and the Appellate Division’s reversal and remand for a new trial was inappropriate.
State in the Interest of N.H.: In a case of first impression, the Supreme Court granted ECPO’s petition for certification and held that the State is required to disclose all discovery in its possession prior to a juvenile waiver hearing. Though the Court did not accept out legal position, bringing this case to the Court brought clarity to an open question of law affecting juvenile cases statewise.
State v. Zuber & Comer: In these cases, argued back-to-back, the Supreme Court considered whether, and if so how, recent United States Supreme Court Eighth Amendment precedents impacted the sentencing of New Jersey defendants who were juveniles at the time they committed their crimes.
State v. Anthony: In this successful appeal of defendant’s conviction for burglary conspiracy, the Appellate Division addressed Rule 3:17, which requires recordation of interrogations. This opinion was the first published decision to address the Rule’s provisions. The Supreme Court later denied defendant’s request to review the case, allowing the Appellate Division’s opinion to remain the seminal case on this Rule.
State v. J.S.: Here, after the Law Division ruled that defendant could escape the consequences of his Megan’s Law requirements early, ECPO successfully appealed and the Appellate Division reinstated his community notification requirements. Quoting directly from ECPO’s brief, the Appellate Division held in its published opinion: “‘Conviction’ in N.J.S.A. 2C:7–2(f) means the date the judgment of conviction was entered. That section permits relief after 15 years of successful compliance with Megan’s Law’s registration requirements, which do not go into effect until the registrant is sentenced and the judgment of conviction entered.”
State v. L.S.: The Appellate Division in this case construed, for one of the first times in a published opinion, N.J.S.A. 2C:28-4, “False Reports to Law Enforcement Authorities,” and held that a conviction of reporting an offense with knowledge that it did not occur requires proof that no offense in fact occurred.
State v. Lunney: In this unpublished decision, the Appellate Division upheld the convictions of Tina Lunney, who murdered her mother in their Fairfield home. Both the Supreme Court of New Jersey and the Supreme Court of the United States later denied review.
State v. Terrell: The Appellate Division, by a 2-1 vote, affirmed defendant’s convictions for four counts of murder, among other offenses, in a published opinion. By virtue of the dissent, the case was briefed and argued in the Supreme Court of New Jersey in October 2017, where ECPO unanimously prevailed.
State v. Peoples: Affirming the denial of defendant’s petition for post-conviction relief, the Appellate Division held, in a published opinion, that defendant was not entitled to post-conviction relief based on claim that he was denied effective assistance of counsel due to his trial counsel’s purported advice to defendant to tamper with witnesses.