Saturday, March 27, 2021

Gurbir S. Grewal's bad day in "State v. Lawrence"

Tucked away in the annals of unpublished New Jersey appellate decisions is State v. Lawrence ( 2016 N.J. Super. Unpub. LEXIS 780, 2016 WL 1387150 ) prosecuted by now New Jersey Attorney General (but then Bergen County prosecutor) Gurbir S. Grewal.

The Defendant Gail Lawrence had a host of charges against her, which weighed heavily against her in Municipal Court. The Appellate decision noted:

On May 3 and June 9, 2010, the Palisades Interstate Parkway Police Department (PIPPD) issued defendant sixteen complaint-summonses for various traffic and driver credential violations, as well as disorderly persons offenses. Although the record is very muddled and conflates this matter with a separate matter also under separate appeal, defendant's case was adjourned several times over a lengthy period.

Defendant repeated her request for discovery [Under Court Rule 7:7-7], sought but not supplied by the State. The judge then responded:

There's procedure that has to be followed. And one of them is retaining  an attorney. You did that. That discovery was sent to your attorney. I'm satisfied that that satisfies the State's obligation. I'm not satisfied that your attorney had the right to walk out and assume that he didn't have to be here today. That's his problem and your problem on for a special trial. You've got like about 40 charges against you. The oldest one is a year and two or three-months-old. I note on the calendar there are eight adjournments. It's time to face the music and hear the trials. Defendant then was asked to enter her pleas to each charge, to which she pled "not guilty" to all of them. Defendant then requested to contact her attorney, presumably pursuant to the judge's prior instruction. The judge denied the request, stating:

THE COURT: It's not going to do — why, so he's going to come here now and we're going to wait for two hours? No, the attorney should have been called before and told to be here today. He's, he's got to know that. You can sue him for malpractice for not being here. DEFENDANT: But I also — THE COURT: No attorney has the right to walk out mid-trial — or just before the trial date. So — DEFENDANT: Sir, I'm — THE COURT: Have a seat. Call your first witness  [prosecutor]. DEFENDANT: Sir, Sir, — PROSECUTOR: Okay. Officer — DEFENDANT: - I do not want to have the trial today. It's not — I did — THE COURT: I know you don't. You don't want . . . to be tried for a year and a half. Just have a seat. Trial proceeded with the State's witnesses. Defendant repeated her objections to conducting trial under the circumstances, which were overruled.
The judge found defendant guilty of three counts of speeding and two counts of weaving as prohibited by municipal ordinances; three counts of careless driving, N.J.S.A. 39:4-97; failure to keep right, N.J.S.A. 39:4-82; and using a cell phone while driving, N.J.S.A. 39:4-97.3. The judge imposed consecutive sixty and ninety-day license suspensions and assessed fines [*8]  and penalties. Immediately thereafter, trial on the June 9, 2010 summonses was held. The judge reiterated defense counsel recently withdrew, without court approval. He denied defendant's request for an adjournment because the trial date had been set "well in advance," and the court was satisfied all the discovery was provided to defendant's counsel. The State's witness testified and defendant declined to cross-examine the officer, stating: "I'm just objecting to everything because I'm asking for adjournment to retain counsel. And you can do whatever you want to do, but it's not fair." When informed of her right to call witnesses, defendant responded she needed additional discovery.
According to the State's brief, defendant filed a timely notice of appeal to the Law Division, a copy of which is not in the record. Trial de novo review was held on January 23, 2012, and defendant was represented by counsel, who  addressed whether she was improperly denied her right to an attorney and whether discovery was withheld. Counsel explained certain discovery requests, never considered by the municipal court judge, were necessary to show defendant was being targeted because she ended an intimate relationship with a fellow PIPPD officer. She maintained her ex-lover arranged for her to be stopped every time she drove on the Palisades Parkway, conduct for which he and others were disciplined. Defendant also sought the MVR videotapes, which purportedly were released, yet at some later point, the State admitted the MVR videotapes "were lost."

The Law Division judge never considered the discovery challenges.
First, the municipal court record provided no information regarding prior adjournments, such as why they were granted and at whose request. The May 4, 2011 hearing record reflects, almost one year following [*16]  issuance of the first set of summonses, the State had not provided discovery and defendant was leaving the country. Otherwise, the assumption defendant was responsible for the delay is unsupported. Second, we cannot find support for the finding defendant's conduct was purposely dilatory. Following the May 4, 2011 hearing, where the judge related some information regarding the effect of proceeding self-represented, she hired counsel, who submitted a June 10, 2011 letter informing of his representation and again pursuing discovery, which the State apparently had still not released.
The Law Division judge ignored the circumstances where the municipal court judge told defendant to get her attorney "on the phone or get him here or you're going to have to try the case by yourself" and then refused to allow her to comply with this directive to contact counsel.2 At the very least, the obligation to contact counsel to determine the circumstances of withdrawal or availability to proceed was required. In this regard, we do not understand the Law Division judge's comments "I mean we all know, when you hire an attorney you have to both hire and pay that attorney." The record does not include information that counsel's failure to appear was the result of defendant's non-payment. Moreover, the Law Division judge confirmed this fact stating, "Why [trial counsel] wasn't there [at trial], I have no idea."
Fourth, during the trial de novo, the judge's finding of "a deliberate attempt to stall this matter" is not supported. At that time, the State proposed the record contained an unidentified individual's statement that defendant was smiling, which demonstrates she acted willfully in delaying the proceedings. Reliance on this statement plucked from the record without more information regarding the context of the assertion or the person making the statement is erroneous.

We also conclude the judge failed to consider defendant's discovery assertions.   Further, the record does not clearly disclose what evidence the State released or why the MVR videotapes, containing allegedly exculpatory evidence, purportedly sent by the State, were never provided. On remand, prior to trial, the municipal court judge must first address precisely what discovery the State released as required by Rules 7:7-7 and 7:7-8; what it did not release, despite assertions to the contrary; and what relief may be appropriate.

Reversed and remanded for a new trial in the municipal court, before a different municipal court judge.

Apparently, prosecuting attorney Mr. Grewal did not consider failure under Court Rule 7:7-7 a big deal, or even the right to an attorney. IPBiz makes no comment on the merits of the substantive case but disregard of Court Rules, as manifested by the Municipal Court Judge is unacceptable.

Footnote 2 of the opinion states:

There are many inappropriate comments made by the municipal court judge that are concerning. Of note, after suggesting counsel should have appeared, we consider the statement telling defendant: "You can sue him for malpractice" as a serious lapse in judgment.


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