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 the Trial 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 Cases:

State v. Wessells - The Appellate Section successfully prosecuted this interlocutory appeal in the Appellate Division, where the trial court suppressed the defendant's statement in a triple homicide case. The Appellate Division held that pursuant to the federal and New Jersey Constitutions, a person who has asserted the right to counsel during police custodial interrogation and is subsequently released, may be interrogated again if the break in custody afforded a reasonable opportunity to consult an attorney. Review by the Supreme Court is pending.

State v. Leonard - Successfully prosecuted this appeal in this carjacking case. The Appellate Division affirmed the trial court's ruling which barred defense counsel from cross-examining the victim as to a remote, unrelated prior conviction.

State v. Echols - Successfully prosecuted this homicide case. The Supreme Court found that the defendant's case did not meet the standard for ineffective assistance of trial or appellate counsel necessary to warrant a new trial. Defendant's claims were based on, among other things, alleged improper comments by the prosecutor at trial, failure of trial counsel to object to the comments, and failure of appellate counsel to raise the issue on appeal.

State in the Interest of Z.W - Successfully prosecuted this interlocutory appeal in a sexual assault case involving an alleged juvenile victim and actor. The Appellate Division reversed the order of the Family Part judge who had ordered the Prosecutor's Office to release the psychological evaluation report of the alleged victim to defense counsel without the court first conducting an in camera review of the document.

State v. Hasan - Successfully prosecuted this appeal in which an attorney was convicted of contempt of court. The Appellate Division rejected arguments that the municipal and Law Division judges should have recused themselves, and that the attorney's conduct did not constitute contempt of court. The sentence imposed on the attorney was, however, modified.

State v. McGrath - Successfully prosecuted this vehicular homicide case where the defendant fell asleep while driving his vehicle, the vehicle swerved off the road and struck and killed two sisters. The Appellate Division rejected arguments by defendant relating to, among other things, the admission at trial of crime scene and autopsy photographs.

State v. Petgrave - Successfully prosecuted this interlocutory appeal where the defendant, 12 years after his conviction on drug and weapon charges, and after completion of his probationary sentence, moved for post-conviction relief on the basis that his trial attorney had erroneously advised him that he would not be subject to deportation as a result of the conviction, even though defendant was not a U.S. citizen but was a legal resident. The trial court granted the petition but the Appellate Division reversed, finding the petition time-barred, and the defendant's argument to be without merit.

State v. Anderson and Yarrell - Successfully prosecuted this interlocutory appeal wherein the trial court suppressed over 250 envelopes of heroin found in the defendants' possession during a warrantless search of the automobile they occupied.

In 2009, a total of 389 criminal appeals and 60 disorderly person / motor vehicle appeals were disposed.