State of New Jersey v. Howard Myerowitz

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6032-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

February 18, 2015
v.
APPELLATE DIVISION
HOWARD MYEROWITZ,

Defendant-Appellant.

___________________________________

Argued January 7, 2015 – Decided February 18, 2015

Before Judges Fuentes, Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Municipal
Appeal No. 21-12.

Howard Myerowitz, appellant, argued the
cause pro se.

Kevin J. Murray, Assistant Prosecutor,
argued the cause for respondent (Gaetano T.
Gregory, Acting Hudson County Prosecutor,
attorney; Mr. Murray, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

Defendant Howard Myerowitz appeals from the judgment of the

Law Division finding him guilty of the petty disorderly persons

offense of harassment as defined in N.J.S.A. 2C:33-4(a). The

Law Division reached this decision after conducting a de novo
review of the trial record developed in the Secaucus municipal

court1 pursuant to Rule 3:23-8. Defendant raises a number of

substantive arguments attacking the legal validity of his

conviction. However, as a threshold issue, defendant argues the

Law Division erred in failing to declare his conviction in the

Secaucus municipal court void ab initio because he was

prosecuted by a private attorney who did not comply with the

requirements the Supreme Court established in State v. Storm,

141 N.J. 245 (1995) and subsequently supplemented and codified

in Rule 7:8-7(b).

We agree with defendant that his conviction for harassment

is procedurally defective and cannot stand as matter of law.

The record of the municipal court proceedings presented for de

novo review to the Law Division shows that the Secaucus

Municipal Court permitted the private attorney retained by the

complaining witness to assume the authority ordinarily reserved

to duly appointed municipal prosecutors without adhering to the

procedural requirements of Rule 7:8-7(b).

1
Rule 7:8-2(a) provides that "except as otherwise provided by
law," the prosecution of an offense in municipal court "shall
take place in the jurisdiction in which the offense was
committed." Although the offense under review here was
allegedly committed in Jersey City, for reasons that are not
made entirely clear in the record before us, venue was
transferred to Secaucus. Defendant is not contesting this issue
on appeal.

2 A-6032-12T2
 Specifically, the private attorney retained by the

complaining witness prosecuted the case against defendant

without submitting the certification required by Rule 7:8-7(b).

The municipal court erred in permitting this private attorney to

exercise prosecutorial authority without adhering strictly to

the rules governing such practices. Failure to follow the

procedures established in Storm violated defendant's due process

rights and did not "preserve the integrity of municipal courts,

protect the rights of defendants, and [ ] make the system work."

Storm, supra, 141 N.J. at 254-55.

I

Defendant is an attorney admitted to practice law in this

State. In that capacity, he represents the Liberty Humane

Society, an organization that purports to be "a non-profit

animal shelter dedicated to promoting animal welfare in our

communities by providing progressive animal sheltering,

behavioral therapy and adoption services designed to give every

animal a chance at a lifelong, loving home."2 Defendant claims

Donna Lerner filed this harassment complaint against him in

retaliation for a civil action alleging "harassment and

defamation" brought by Liberty Humane Society against Lerner and

2
Liberty Humane Soc'y, http://libertyhumane.org/board_staff.php
(last visited January 19, 2015).

3 A-6032-12T2
other members of what defendant characterizes as a "fringe

animal rights group."

On January 31, 2011, defendant attended a board of

directors meeting of the Liberty Humane Society to update the

board members on the status of the civil litigation against

Lerner. The incident that gave rise to Lerner's harassment

complaint against defendant occurred at this meeting.

The meeting, which was held in a room inside the City Hall

of the City of Jersey City, was initially open to the public.3

Lerner, who was also in attendance, sought to record the board's

discussions during the public session. However, when the

discussions reached defendant's litigation update, the board

members asked Lerner and other members of the public to leave

the room. According to defendant, the board members explained

that the meeting was being closed to the public to permit

defendant, as the attorney representing the organization, to

privately discuss confidential information concerning the status

of the litigation.

After the meeting room was cleared of public attendees,

defendant took certain personal items attendees had left inside

3
Although not entirely clear based on the record before us, it
appears Liberty Humane Society had at the time some kind of
affiliation with the City of Jersey City with respect to the
care of wayward animals.

4 A-6032-12T2
the meeting room and placed them outside on the hallway floor.

According to Lerner, defendant told her to get away from the

meeting room door. She also claimed defendant told her that he

was going to have her escorted out of the building. Lerner

described defendant's demeanor as confrontational and physically

menacing. She alleged defendant "got several inches away" from

her face, pointed his finger at her, yelled at her, and followed

her when she stepped back. Although Lerner testified that

defendant's alleged misbehavior continued unabated for

approximately fifteen to twenty minutes, she also indicated that

she continuously walked in and out of the meeting room, in

apparent defiance of the board's decision to close the meeting

to the public.

The Law Division judge found that at some point during this

confrontation with Lerner, defendant asked both security and

Jersey City Police Officers for assistance to physically remove

Lerner from the scene. The trial court found, however, that the

police officers refused to accede to defendant's request because

Lerner was lawfully in a public building and was not acting

inappropriately. Lerner was later permitted to attend the

public session of the board meeting without further incident.

Her charge of harassment against defendant is thus exclusively

5 A-6032-12T2
based on her interactions with defendant immediately after the

board's decision to close the meeting to the public.

II

Although the Secaucus Municipal Court disposed of several

other cases involving Donna Lerner and other individuals who had

some connection with the Liberty Humane Society, this appeal

concerns only what occurred during the prosecution of the

harassment charges filed by Lerner against defendant.4 However,

the Storm issue raised by defendant in this appeal was not

directly addressed by the municipal court on June 5, 2012, the

day defendant's case was scheduled for trial.

The following colloquy occurred before the start of the

trial against defendant:

DEFENDANT: I'm sorry, Your Honor. Is
[Lerner's private attorney] prosecuting on
this case?

MUNICIPAL COURT JUDGE: My understanding is
she is. I received an application to do so.

DEFENDANT: I haven't received an application
for her to prosecute this matter.

LERNER'S ATTORNEY: Judge, that's not true.
We went through this probably four sessions
ago where he objected to my prosecuting at

4
Defendant's Notice of Appeal and Case Information Statement
identify only the Law Division's May 28, 2013 judgment of
conviction finding defendant guilty of committing the petty
disorderly persons offense of harassment against Donna Lerner,
as defined in N.J.S.A. 2C:33-4(a).

6 A-6032-12T2
 that time, and Your Honor reviewed the Storm
application. Your Honor addressed the issue.

DEFENDANT: It's not a party - -

LERNER'S ATTORNEY: And one of the - - the
big issue - -

MUNICIPAL COURT JUDGE: Mr. Myerowitz, you
filed a motion to disqualify [Lerner's
attorney]. And I did go through all of the
reasons on the record, and I - - and I went
through all of it. So - -

DEFENDANT: Yes, but she only applied to
prosecute Ms. [Jeffrey]. She never applied
to prosecute me.

MUNICIPAL COURT JUDGE: No, she did. And
your brief addressed both. Your brief was
addressing in caption to Re: State v. Diana
Jeffreys [sic], Re: State v. Howard
Myerowitz. So it addressed it and I
addressed all the issues.

Ultimately, the municipal court judge found that she had

addressed and rejected defendant's Storm related objections:

I believe that I have on more than one
occasion indicated that [Lerner's private
attorney] can appear in this matter. You
have filed a brief in opposition to her
appearing. I said that she can appear. And
so . . . this has been on the calendar
forever with today as the day to go forward.

The municipal court judge's reference to a prior ruling

deciding this issue relates to a hearing that occurred on

September 6, 2011, the first day of trial of the harassment

charges filed by Lerner against defendant's wife, Diana H.

Jeffrey, whom defendant represented as defense counsel. On that

7 A-6032-12T2
day, Lerner's private attorney entered her appearance and

announced to the municipal court that she had "filed a Storm

motion on behalf of Donna Lerner." After considerable

discussion concerning defendant's ability to represent himself

and his wife in these matters5, Lerner's private attorney

addressed the municipal court as follows:

Judge, I don't represent Ms. Lerner in a
complaint by Ms. Jeffrey. I did file two
Storm certifications. I seek to represent -
- to prosecute the matter against Diana
Jeffrey in State v. Diana Jeffrey where
Donna Lerner is the complainant. There - -

MUNICIPAL COURT JUDGE: Well . . . let's
stick with what I have. Let's - -

. . . .

Let's go back a minute. There is no
complaint by Mr. Myerowitz against Ms.
Lerner. That's my point.

DEFENDANT: Correct.

LERNER'S ATTORNEY: That's correct.

. . . .

MUNICIPAL COURT JUDGE: So then the next
issue becomes - - if I'm correct, your
remaining argument is that Mr. Myerowitz
should not be appearing on behalf of Ms.
Jeffrey as defense counsel.

5
The record reflects defendant's wife (who is also an attorney)
waived any conflict of interest arising as a result of defendant
representing her in the case, as required by Rule 3:8-2. This
issue ultimately became moot, however, because Jeffrey was
acquitted of the charges filed against her by Lerner.

8 A-6032-12T2
 . . . .

LERNER'S ATTORNEY: That's correct.

MUNICIPAL COURT JUDGE: In the absence of - -
of him prosecuting one of these matters, I'm
having a difficult time then seeing where
the conflict would be. The State v. Storm
conflict comes up if he prosecutes one of
these matters.

Lerner's attorney agreed with the municipal court judge's

analysis of the Storm question as it related to defendant's

ability to represent Jeffrey in the harassment case Lerner filed

against her. The question related to whether Lerner's private

attorney could assume the role of prosecutor resurfaced when

defendant, acting as Jeffrey's defense counsel, objected to

Lerner's private attorney's Storm application. Defendant based

his objection on two grounds: (1) the absence of cross-

complaints between Jeffrey and Lerner; and (2) Lerner's

counsel's failure to submit a certification in conformance with

the requirements of Rule 7:8-7(b). The municipal court judge

rejected defendant's arguments and the case against Jeffrey went

forward with Lerner's private attorney acting as prosecutor.

The municipal court judge found Lerner's attorney did not

use the form certification approved by the Administrative

Director of the Courts (Director) as required by Rule 7:8-7(b).

The municipal court judge nevertheless permitted Lerner's

9 A-6032-12T2
attorney to prosecute Jeffrey, finding the privately drafted

certification submitted by the attorney was in "substantial

compliance" with the form approved by the Director. The

municipal court judge provided the following explanation in

support of her ruling:

[Lerner's private attorney] submitted a
certification to the Court dated February 7,
2011. It is not on the form [prescribed] by
the [Administrative Office of the Courts],
but it is in substantial compliance with it.
It provides in part that she requests to
prosecute this matter on behalf of her
client, that she's an attorney at law, that
she is supplying this certification in -- to
the Jersey City Municipal Court in --
pursuant to Rule 7:8-7(b) and State v. Storm
and that she will fill out any form that was
provided to her by the Municipal Court.
She's asking that she be appointed as an
impartial private Prosecutor for Donna
Lerner, the complaining witnesses in -- in
this matter.

. . . .

I don't find that the form not being
provided to her by Jersey City is fatal to
her prosecution in this matter.

With whether or not these matters are cross-
complaints, I said earlier in this day and
with regard to another matter I find that
they are cross-complaints. I understand
that there is no identity of dates, but
there are identity of parties and there are
[identity] of issues in this matter.

The parties are in a dispute apparently over
. . . I [may be] using the wrong title for
it . . . Hudson County Animal Shelter. It
may be the Jersey City Animal Shelter. I'm

10 A-6032-12T2
 not familiar enough with the facts having
not heard them yet but only reviewed the
motions in this matter. The dispute [may
be] . . . over control over this animal
shelter. The parties got into disputes over
how they should discuss it, whether or not
one party was harassing the other, using
harassing language over it. All of these
parties are people who had something [to] do
with this shelter.

While there may not be an identity of dates
meaning you allege I harassed you on Date A
while I allege you harassed me on Date B,
the allegations are similar enough and the
parties are similar enough so that I can
consider these to be cross-complaints.

If I say to you something on Monday and you
answer me on Tuesday because we're using
electronic communication meaning that we're
using e-mail or Face Book [sic] or any of
the other means that people communicate with
today, text, and so I don't get it in an
instant time but I get it the next day, that
is contemporaneously enough that I would
consider these to be cross-complaints.

[(Emphasis added).]

The certification Lerner's private attorney submitted to

the Jersey City Municipal Court in support of her Storm

application, which the Secaucus Municipal Court found

"substantially complied" with the requirements of Rule 7:8-7(b),

is replicated in its entirety and attached here as Exhibit A to

this opinion. In the interest of clarity, we recite the

following pertinent paragraphs of the certification:

2. This Certification is being supplied to
the Jersey City Municipal Court pursuant to

11 A-6032-12T2
 the provisions of R. 7:8-7(b) and State v.
Storm, 141 N.J. 245 (1995) to provide the
Court and the Municipal Prosecutor with all
facts that may foreseeably affect the
fairness of the proceedings to enable the
court to determine whether I may be
appointed as an impartial private prosecutor
for Donna Lerner, the complaining witnesses
in the above matter.

3. The complaining witnesses are
individuals.

4. There is no actual conflict of interest
arising from my representation of and fee
arrangement with, the complaining witnesses.

5. The municipal prosecutor can elect not
to conduct the prosecution.

6. Neither I nor any member of my firm
will represent the complaining witness in
any civil litigation concerning the same or
similar facts as are contained in the
complaint.

7. There are no other facts that could
reasonably affect the impartiality of the
private prosecutor and the fairness of the
proceedings or otherwise create an
appearance of impropriety.

I hereby certify that the foregoing
statements made by me are true. I am aware
that if any of the foregoing statements made
by me are willfully false, I am subject to
punishment.

As Exhibit A attached hereto shows, this certification

dated February 7, 2011, uses a caption identifying only the case

of State v. Diana H. Jeffrey, Complaint No. S2010 009052 0906,

leaving any reasonable reader to conclude this private attorney

12 A-6032-12T2
was seeking leave of the court to assume the role of prosecutor

on behalf of the complaining witness only in that case. The

letter the attorney wrote to the then Presiding Judge of the

Jersey City Municipal Court dated February 14, 2011,

transmitting this personally drafted version of a Storm

certification, also corroborates this inference. The

"reference" section of the letter again identifies the subject

matter as the case of "State v. Diana Jeffries [sic], Complaint

No. S2010 009052 0906." Finally, in an effort to dispel any

ambiguity or confusion, the attorney wrote: "If the Court agrees

to permit me to serve as a private prosecutor in this matter,

please have your clerk file the enclosed Notice of Appearance

and send me a copy marked filed in the enclosed stamped self-

addressed envelope."6 No other case is mentioned in the letter.

On appeal to the Law Division, defendant again argued that

Lerner's private attorney was not legally authorized to

prosecute the harassment complaint filed against him by Lerner

because the attorney did not submit a Storm certification in his

case. The State, this time represented by an Assistant

Prosecutor from the Hudson County Prosecutor's Office, argued

6
The appellate record does not contain a copy of the Notice of
Appearance "marked filed."

13 A-6032-12T2
that the municipal court judge considered and rejected

defendant's arguments under Storm in the case against Jeffrey.

The Law Division Judge accepted the State's argument in

this respect. The trial judge found that the municipal court

judge "made it clear that she was 'lumping' all the matters

together." (Emphasis added). After naming the various cases in

which the charges were eventually withdrawn by all of the

complaining witnesses, the Law Division Judge found:

It was clear to Mr. Myerowitz that all the
matters were addressed jointly, but would
have its own trial, as he addressed in the
caption of his brief to Re: State v. Diana
Jeffrey, Re: State v. Howard Myerowitz.
This makes it clear that there are
overlapping issues and essentially, he
addressed them jointly.

III

Against this record, defendant raises the following

arguments on appeal:

POINT I

THE CONVICTION MUST BE REVERSED BECAUSE THE
TRIAL JUDGE IMPROPERLY ALLOWED A PRIVATE
ATTORNEY TO PROSECUTE THE DEFENDANT, HOWARD
Z. MYEROWITZ, ESQ.

A. The Private Attorney Did Not
File An Application To Prosecute
The Defendant, Howard Z.
Myerowitz, Esq.

B. Even If The Private Attorney
Had Filed An Application To
Prosecute The Defendant, Howard Z.

14 A-6032-12T2
 Myerowitz, Esq., It Would Have
Been Plain Error For The Trial
Judge To Grant It Because The
Rules Only Allow A Private
Prosecutor To Be Appointed When
There Are Cross Complaints And No
Civil Litigation [Existed] Between
The Parties.

POINT II

THE CONVICTION MUST BE REVERSED BECAUSE THE
TRIAL JUDGE IMPROPERLY ALLOWED THE PRIVATE
PROSECUTOR TO CALL A WITNESS WHO THE
DEFENDANT HAD NOT BEEN NOTIFIED OF.

POINT III

THE CONVICTION MUST BE REVERSED BECAUSE THE
TRIAL JUDGE IMPROPERLY FOUND THE DEFENDANT
GUILTY OF COMMITTING ACTS NOT ALLEGED IN THE
CRIMINAL COMPLAINT.

POINT IV

THE CONVICTION MUST BE REVERSED BECAUSE THE
FACTS AS ALLEGED IN THE COMPLAINT DO NOT
CONSTITUTE HARASSMENT AS A MATTER OF LAW AND
THE FACTS ADDUCED AT TRIAL DID NOT ESTABLISH
ALL THE ELEMENTS OF N.J.S.A. 2C:33-4(a).

POINT V

THE CONVICTION MUST BE REVERSED BECAUSE THE
TRIAL JUDGE IMPROPERLY USED FACTS ADDUCED IN
A DIFFERENT MATTER, AND FACTS NOT ADDUCED AT
TRIAL BUT ALLEGEDLY KNOWN TO THE JUDGE
PERSONALLY, TO REACH HER DECISION.

POINT VI

THE CONVICTION MUST BE REVERSED BECAUSE THE
TRIAL JUDGE IMPROPERLY FAILED TO DISCLOSE
HER PRIOR RELATIONSHIP WITH THE CITY OF
JERSEY CITY AND HER PRIOR EMPLOYMENT WITH
JERSEY CITY CORPORATION COUNSEL.

15 A-6032-12T2
 POINT VII

THE CONVICTION MUST BE REVERSED BECAUSE THE
DEFENDANT DID NOT RECEIVE A FAIR TRIAL
BEFORE AN IMPARTIAL JUDGE IN VIOLATION OF
HIS CONSTITUTIONAL RIGHTS AND THE TRIAL
JUDGE IMPROPERLY HAD AN EX PARTE
COMMUNICATION WITH THE PRIVATE PROSECUTING
ATTORNEY.

We will start our analysis by addressing defendant's

argument challenging the Law Division's ruling upholding the

municipal court judge's decision to allow Lerner's private

attorney to prosecute the harassment charge against him. Our

review of the record leads us to conclude that the private

attorney who prosecuted this case against defendant did not

submit the certification required by Rule 7:8-7(b), and was thus

not vested with the authority to represent the State at the time

she prosecuted defendant. In permitting this attorney to assume

the role of prosecutor in this case, the municipal court judge

mistakenly relied on a certification this same attorney

submitted in support of an application to prosecute a case

against defendant's wife, Diana Jeffrey. The Law Division erred

in upholding the municipal court judge's decision under these

circumstances.

We further hold that the failure of the municipal court to

enforce the requirements of Rule 7:8-7(b) renders defendant's

conviction void ab initio. As we stated in State v. Valentine,

16 A-6032-12T2
374 N.J. Super. 292, 297-98 (App. Div. 2005), judicial oversight

in this context and adherence to the requirements of the rule

are necessary to prevent a structural rift in the framework of

the entire judicial process[.]"

The public policy concerns involved in permitting a private

attorney to assume the role of prosecutor and represent the

State in a particular case were articulated by Justice Pollock

on behalf of a unanimous Court in Storm. The Court grappled to

strike a proper balance between two seemingly irreconcilable

propositions. As Justice Pollock noted, "[t]he challenge is to

respect the defendant's right to a fair trial while preserving

the contribution of private prosecutors to the disposition of

complaints in the municipal courts." Storm, supra, 141 N.J. at

252.

The Court was particularly concerned with the erosion of

public confidence caused by the inherent lack of impartiality

associated with a privately retained prosecutor.

The overarching argument against private
prosecutors is the risk they pose to a
defendant's right to a fair trial. A
private prosecutor's dual responsibilities
to the complaining witness and to the State
breed numerous problems. Representation of
the complainant in a related civil action
could invest the prosecutor with a monetary
interest in the outcome of the matter. That
risk is particularly high if the prosecutor
has agreed to receive a contingent fee in
the civil action. Even in the absence of

17 A-6032-12T2
 actual conflict, the appointment as
prosecutor of an attorney for an interested
party creates the appearance of impropriety.

Conflicting interests, moreover, can
undermine a prosecutor's impartiality. The
loss of impartiality can affect the
prosecutor's assessment of probable cause to
proceed; the disclosure of exculpatory
evidence; and the willingness to plea
bargain. Also implicated are the
prosecutor's ethical obligation "to see that
the defendant is accorded procedural justice
and that guilt is decided upon the basis of
sufficient evidence." In addition, private
prosecutions pose the risk that the
complainant will use the municipal court
proceeding to harass the defendant or to
obtain an advantage in a related civil
action.

[Id. at 252-53 (internal citations
omitted).]

On the other side of the scale were the equally important

interests of preserving and expanding access to a forum for

resolutions of minor disputes that, if left unaddressed, could

escalate into more serious violent confrontations. As more

eloquently stated by Justice Pollock:

A municipal court is "the people's court."
Municipal courts remain a place in which
people, sometimes on the verge of violence,
can seek relief. In effect, municipal
courts provide a safety valve for society.
By providing access to impartial judges,
municipal courts forestall violence and
encourage the peaceful resolution of
disputes.

[Id. at 254.]

18 A-6032-12T2
 The Court concluded that the effectiveness of the municipal

court as a forum for dispute resolution depended upon the

public's confidence in its ability to deliver impartial justice.

This could be achieved only if both complainant and defendant

trusted the impartiality of the proceedings. Ibid. There is

the rub. As the Storm Court ultimately acknowledged, "[t]o earn

that trust, the prosecutor, like the judge, must be impartial.

Inevitably, private prosecutions undermine confidence in the

integrity of the proceedings." Ibid. (Emphasis added).

With this admonition in mind, we will focus our discussion

on how the Supreme Court decided to respond to this challenge.

Rule 7:8-7(b) authorizes the municipal court to permit a private

attorney to assume the role of municipal prosecutor and

represent the State in a particular case, only after determining

on the record that certain specific conditions exist, and that

the attorney has submitted a certification, in the form approved

by the Administrative Director of the Courts, addressing all of

the questions contained therein.

The court may permit an attorney to appear
as a private prosecutor to represent the
State in cases involving cross-complaints.
Such private prosecutors may be permitted to
appear on behalf of the State only if the
court has first reviewed the private
prosecutor's motion to so appear and an
accompanying certification submitted on a
form approved by the Administrative Director
of the Courts. The court may grant the

19 A-6032-12T2
 private prosecutor's application to appear
if it is satisfied that a potential for
conflict exists for the municipal prosecutor
due to the nature of the charges set forth
in the cross-complaints. The court shall
place such a finding on the record.

[R. 7:8-7(b).]

Distilled into manageable subparts, the first step under

Rule 7:8-7(b) requires the municipal court judge to determine

whether the parties have filed cross-complaints against each

other. In such a scenario, the municipal prosecutor is placed

in an untenable situation because each party is a defendant in

one case and a complaining witness in the other. Here, the

record shows defendant did not have a cross-complaint against

Lerner. Although defendant represented the Liberty Humane

Society in a pending civil action against Lerner, there is no

evidence that defendant had a pending personal complaint against

Lerner before the municipal court.

In the absence of actual cross-complaints that create an

insurmountable conflict of interest for the prosecutor, there

are no legal grounds for the municipal court to permit a private

attorney to represent the State. Because public policy favors

that prosecutions be conducted by duly appointed independent

prosecutors, the municipal court judge should obtain a statement

from the municipal prosecutor, on the record, confirming the

existence of this conflict of interest, requiring his or her

20 A-6032-12T2
recusal in the case. However, "[i]f the municipal prosecutor

insists on proceeding with the prosecution, the prosecutor's

decision should be final." Storm, supra, 141 N.J. at 255.

The second step under Rule 7:8-7(b) requires the municipal

court to review the private attorney's motion to assume the role

of prosecutor. This motion must be accompanied by a

"certification submitted on a form approved by the

Administrative Director of the Courts." R. 7:8-7(b) (emphasis

added). Here, the Law Division's finding that the municipal

court judge consolidated defendant's case with Jeffrey's case is

not supported by the record. Lerner's attorney did not file a

formal motion seeking leave to prosecute the case against

defendant or submit the certification required by Rule 7:8-7(b).

The Law Division Judge referred to a brief captioned "State

v. Diana Jeffrey, Re: State v. Howard Myerowitz" in his

memorandum of opinion. In this appeal, however, the State has

not refuted defendant's claim that no such brief ever existed.

The record corroborates defendant's claim that Lerner's attorney

did not submit a Storm certification requesting leave to

prosecute the case against him. As noted infra, the letter

from Lerner's attorney transmitting her personally drafted

version of the certification required by Rule 7:8-7(b) only

refers to the case of "State v. Diana Jeffrey, Complaint No.

21 A-6032-12T2
S2010 009052 0906," and she sought only to be permitted to serve

as a private prosecutor in that matter. (Emphasis added).

In the interest of clarity, and to guide the Law Division

and the municipal courts, we have attached as Exhibit A the

certification filed by Lerner's attorney purporting to comply

with the requirements of Rule 7:8-7(b). We have also attached

as Exhibit B the certification form approved by the

Administrative Director of the Courts. Even a cursory

comparison of these two documents shows that the unapproved,

personally drafted certification submitted by Lerner's attorney

fails to materially comply in several respects with the

requirements of Rule 7:8-7(b) or the Court's impartiality

concerns in Storm.

By way of example, the personally drafted certification

indicates only that neither she nor any member of her firm will

represent the complaining witness in any civil litigation

concerning the same or similar facts as are contained in the

complaint. The approved form requires the attorney to certify

that:

There is no civil litigation, existing or
anticipated, between the complaining witness
and the defendant concerning the same or
similar facts as are contained in the
complaint. In the event of such civil
litigation, I have informed the complaining
witness that neither I nor any member of my

22 A-6032-12T2
 firm will undertake the complaining witness’
representation in that matter.

[(Emphasis added).]

The approved form requires the attorney to inform the

municipal court whether the defendant "is or is expected to be

represented by counsel." The personally drafted certification

does not address this issue. Finally, the personally drafted

certification states, "[t]he municipal prosecutor can elect not

to conduct the prosecution." (Emphasis added). By contrast,

the approved form requires the attorney to certify that "[t]he

municipal prosecutor has elected not to conduct the prosecution.

Check if correct. [ ] If not, please explain[.]" (Emphasis

added).

Despite these material deviations from the approved form,

the municipal court judge found the unapproved certification was

in "substantial compliance" with the requirements of Rule 7:8-

7(b). We caution municipal court judges against adopting such a

lax approach to the requirements of this Rule. As we made clear

in Valentine, supra, "[a] plain reading of [Rule] 7:8-7(b) does

not permit an interpretation that its application is

discretionary." 374 N.J. Super. at 297. Use of the form

approved by the Administrative Director of the Courts is not

discretionary. The questions contained in the form, including

the precise phraseology used, constitutes the expressed method

23 A-6032-12T2
adopted by the Supreme Court to accommodate the public policy

concerns expressed in Storm, supra. 141 N.J. at 254.

The certification form attached here as Exhibit B was

approved by the Administrative Director of the Courts in 1999 to

comply with the mandate of Rule 7:8-7(b). The certification is

electronically available to all of the municipal courts of this

State. Municipal Courts have an obligation to provide this

certification form to any private attorney seeking leave to

assume the role of prosecutor in a given case.7

IV

The municipal court's failure to enforce the requirements

of Rule 7:8-7(b) rendered defendant's conviction for the petty

disorderly offense of harassment void ab initio. Thus, we need

not reach the remaining issues raised by defendant in this

appeal. We remand this matter for a new trial. We do not

retain jurisdiction.

Reversed and remanded. We do not retain jurisdiction.

7
We recognize that modern technology permits easy access to this
type of information by simply attaching the approved
certification form to a municipal court's website or to the New
Jersey Judiciary website. However, the acceptable method for
ensuring compliance with this aspect of Rule 7:8-7(b) is a
question that should be addressed by the Administrative Director
of the Courts.

24 A-6032-12T2
 EXHIBIT A

___________________________

STATE OF NEW JERSEY,

(Donna Lerner) JERSEY CITY MUNICIPAL COURT
HUDSON COUNTY

Plaintiff, Complaint No.S2010 009052
0906

V.
CERTIFICATION IN SUPPORT OF
DIANA H. JEFFREY APPLICATION FOR: APPOINTMENT
AS PRIVATE PROSECUTOR
Defendant. PURSUANT TO R.7:8-7(B)

__________________________

TO: Clerk
Jersey City Municipal Court
365 Summit Avenue
Jersey City, New Jersey 07306

Jersey City Municipal Court Prosecutor
Jersey City Municipal Court
365 Summit Avenue
Jersey City, New Jersey 07306

Howard Z. Myerowitz, Esq.
[Attorney for Diana H. Jeffrey, Defendant]

[ ] of full age, being duly sworn, certifies:

1. I am an Attorney at Law of the State of New Jersey.

2. This Certification is being supplied to the Jersey City
Municipal Court pursuant to the provisions of R.7:8-7(b)
and State v. Storm, 141 N.J. 245 (1995) to provide the
Court and the Municipal Prosecutor with all the facts that
may foreseeably affect the fairness of the proceedings to
enable the court to determine whether I may be appointed as
an impartial private prosecutor for Donna Lerner, the
complaining witnesses in the above matter.
3. The complaining witnesses are individuals.

4. There is no actual conflict of interest arising from my
representation and fee arrangement with, the complaining
witnesses.

5. The municipal prosecutor can elect not to conduct the
prosecution.

6. Neither I nor any member of my firm will represent the
complaining witness in any civil litigation concerning the
same or similar facts as are contained in the complaint.

7. There are no other facts that could reasonably affect the
impartiality of the private prosecutor and the fairness of
the proceedings or to otherwise create an appearance of
impropriety.

I hereby certify that the foregoing statements made by me
are true. I am aware that if any of the foregoing statements
made by me are willfully false, I am subject to punishment.

Dated: February 7, 2011

___________________________
[Original Certification bears
the signature of the
attorney]

2 A-6032-12T2
 EXHIBIT B

RULE 7:8-7(b) CERTIFICATION APPLICATION FOR APPOINTMENT AS
PRIVATE PROSECUTOR
State of New Jersey vs.
________________________________________________________________
___________
Docket Number(s):
________________________________________________________________
___________
Charge(s):
________________________________________________________________
___________
Attorney Information:
Name:
________________________________________________________________
___________
Address
________________________________________________________________
___________
________________________________________________________________
___________
Telephone Number:
________________________________________________________________
___________
This Certification is supplied to the
________________________________________________________________
____
Municipal Court, pursuant to the provisions of R. 7:8 -7(b) and
State v. Storm, 141 N.J. 245 (1995) to provide the court and the
prosecutor with all facts that may foreseeably affect the
fairness of the proceedings to enable the court to determine
whether I
may be appointed as an impartial private prosecutor
for________________________________
_______________________________________________, the complaining
witness in the above matter.
1. (Please circle the applicable letter). The complaining
witness is (a) an individual, (b) a business (please describe):
________________________________________________________________
_________________________________
or (c) an entity with its own police department (please
describe): _______________________________________________
________________________________________________________________
_________________________________
2. There is no actual conflict of interest arising from my
representation of, and fee arrangement with, the complaining
witness.
Check if correct. [ ] If not, please explain:
________________________________________________________________
_
________________________________________________________________
_________________________________.
3. The municipal prosecutor has elected not to conduct the
prosecution. Check if correct. [ ] If not, please explain:
________________________________________________________________
_________________________________
________________________________________________________________
_________________________________
4. The defendant is or is expected to be represented by counsel.
[ ] Yes [ ] No [ ] Unknown. Notice has been given to
defendant’s attorney. [ ] Yes [ ] No
5. There is no civil litigation, existing or anticipated,
between the complaining witness and the defendant concerning the
same
or similar facts as are contained in the complaint. In the event
of such civil litigation, I have informed the complaining
witness
that neither I nor any member of my firm will undertake the
complaining witness’ representation in that matter.
Check if correct. [ ] If not, please explain:
__________________________________________________________
________________________________________________________________
___________________________________
6. There are no other facts that could reasonably affect the
impartiality of the private prosecutor and the fairness of the
proceedings or otherwise create an appearance of impropriety.
Check if correct. [ ] If not, please explain:
________________________________________________________________
_________________________________
________________________________________________________________
_________________________________.
Comments:
________________________________________________________________
___________________________________
________________________________________________________________
___________________________________
Please attach additional sheets, if necessary.
CERTIFICATION IN LIEU OF OATH
I hereby certify that the foregoing statements made by me are
true. I am aware that if any of the foregoing statements made by

2 A-6032-12T2
me are willfully false, I am subject to punishment.
________________________
_________________________________________
Date Name of Applicant
(February,

3 A-6032-12T2