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Appellate Section

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.

The Appellate Section supervises an increasingly active internship program. Over the course of the school year and during the summer, interns from both local and national colleges and law schools participate in the program. Interns are assigned to units throughout the office and third year law students appear in court.

Responsibilities:

• 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.

Accomplishments:

• 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 2014 Cases:

Supreme Court of New Jersey

State v. Wardrick and State v. McKinney – In this robbery case, two brothers were convicted at a single trial of various offenses. They appealed their convictions, and two Appellate Division panels reached different conclusions on the same issue, i.e., whether the jury charge on robbery was sufficient. The Supreme Court of New Jersey granted both parties’ petitions for certification, and heard oral argument on both cases on January 20, 2015. A decision is pending.

State v. Olivero – In this case, the jury found defendant guilty of burglary for his theft of printing rollers from a fenced and locked lot of a manufacturing facility in Newark, and the Appellate Division affirmed. The Supreme Court granted defendant’s petition for certification to address the issue of whether a fenced-in parking lot of a manufacturing facility is a “structure” within the meaning of the burglary statute, such that the defendant could be convicted of burglary, an issue of first impression in New Jersey. The Court heard oral argument on January 6, 2015, and a decision is pending.

State v. Musa – In this robbery case, a deliberating juror failed to return to court to resume deliberations on the second day of trial and was replaced. Defendant was found guilty, but the Appellate Division reversed the conviction, finding that the trial court should have further explored why the juror failed to appear. The panel further found that the initial inquiry of the jury should have been more in depth, and should have included questions to the remaining jurors. The State’s petition to the Supreme Court was granted, and the Court heard oral argument on March 2, 2015.

State v. Goodwin – After a jury found defendant guilty of insurance fraud, the Appellate Division reversed the conviction, finding that defendant’s conduct did not establish a crime because defendant’s fraudulent actions were uncovered before the insurance company paid his illicit claims. On October 24, 2014, the Supreme Court granted the State’s petition for certification to address primarily whether the phrase “statement of material fact” in the insurance fraud statute requires proof of actual detrimental reliance by the victim insurance company. Oral argument will be heard during the 2015-2016 Supreme Court Term.

Appellate Division

State v. Ayers – A jury had found defendant guilty of murder and other offenses. The trial court granted defendant’s petition for post-conviction relief, finding that his trial counsel’s failure to properly advise defendant about the consequences of waiving his right to testify at trial amounted to constitutionally deficient representation. The Appellate Division reversed the order and reinstated the conviction, concluding that any deficiency did not prejudice defendant’s right to a fair trial. The Supreme Court subsequently denied review.

State v. Brown – In this invasion of privacy case, after the trial court granted defendant’s pretrial motion requiring the State to produce an expert to explain internet service provider and cell phone records it intends to introduce at defendant’s trial to establish that defendant uploaded a video of his former girlfriend in a state of undress, the Appellate Division reversed and remanded for an evidentiary hearing on the issue. The Supreme Court subsequently denied defendant’s motion for leave to appeal, and the matter is now back in the trial court.

State v. Godinez, State v. Alfaro and State v. Gomez – In these cases arising out of the 2007 Newark Schoolyard homicides, the Appellate Division affirmed the convictions and sentence of defendant Godinez, the first to be tried. The Supreme Court subsequently denied review. It also denied review in defendant Alfaro’s petition. A decision from the Appellate Division is pending in defendant Gomez’s case.

State v. Lee – In this published opinion, the Appellate Division rejected the defendant’s challenge to the Pretrial Intervention Guidelines, and found that they were not preempted by the PTI statute. It further held that ECPO did not abuse its discretion in denying this defendant, charged with resisting arrest and two counts of aggravated assault on Bloomfield police officers, entry into the program.

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