State of New Jersey v. Western World, Inc.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3007-12T2
MOTION NO. M-0474-13

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, March 30, 2015

APPELLATE DIVISION
v.

WESTERN WORLD, INC.,

Defendant-Appellant.
_______________________________________________

Motion Argued March 4, 2014 - Decided March 30, 2015

Before Judges Messano, Hayden and Rothstadt.

On appeal from the Superior Court of New
Jersey, Law Division, Sussex County,
Indictment No. 08-06-00186.

Susan Brody, Deputy Public Defender, II,
argued the cause for Party-In-Interest
Office of the Public Defender (Joseph E.
Krakora, Public Defender, attorney; Ms.
Brody, on the brief).

Jeffrey S. Mandel argued the cause for
appellant Western World, Inc. (Cutolo
Mandel, LLC, attorneys; Mr. Mandel, on the
brief).

Gregory Robert Mueller, Assistant Prosecutor,
argued the cause for respondent State of New
Jersey (David J. Weaver, Sussex County
Prosecutor, attorney; Mr. Mueller, on the
brief).
 The opinion of the court was delivered by

MESSANO, P.J.A.D.

This motion presents an issue of first impression in this

State, specifically, whether the Office of the Public Defender

(OPD) must represent on appeal a corporation convicted of an

indictable offense and subsequently declared "indigent" by the

trial court.

The facts and procedural history are undisputed. The

Sussex County grand jury returned Indictment No. 08-06-00186,

charging defendant Western World, Inc., and others with crimes

that arose from a July 7, 2006 shooting during the reenactment

of a gunfight at Wild West City, a business operated by

defendant.1 On April 11, 2012, represented by private counsel

1
We previously described the circumstances in our unpublished
opinion, Stabile v. Benson, No. A-4009-09 (App. Div. Sept. 29,
2011):

[A]n actor [employed] by [defendant] . . .
was participating in the reenactment of a
gunfight at Wild West City. A fellow
employee actor used a gun that did not
contain blanks but rather live ammunition
that had been brought to work by another
employee sometime prior to the gunfight
skit. [The actor] was shot in the head
during the skit, suffered a catastrophic
brain injury, and was severely and
permanently disabled as a result.

[Id. (slip op. at 4).]

(continued)

2 A-3007-12T2
and pursuant to a plea agreement, defendant pled guilty as an

accomplice to count fifteen of the indictment as amended to

charge third-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b), and 2C:2-6(b)(1). The State agreed to dismiss the

balance of the indictment and recommend a one-year period of

probation, subject to specific terms and conditions.

We have not been provided with a transcript of the plea

proceedings as part of this motion record. However, the plea

form and addendum, apparently prepared by the prosecutor,

indicated that the State would also dismiss the indictment as to

co-defendants Michael Stabile, at the time defendant's

president, Nathan McPeak, one of its employees, and Cheyenne

Corporation, an entity that owned the land upon which Wild West

City operated. The addendum also indicated that the State would

not seek a fine, and it set forth the State's recommendations

regarding conditions of probation. Lastly, the addendum

provided:

(continued)
Although citing an unpublished opinion is generally
forbidden, we do so here to provide a full understanding of the
issues presented and pursuant to the exception in Rule 1:36-3
that permits citation "to the extent required by res judicata,
collateral estoppel, the single controversy doctrine or any
other similar principle of law . . . ." See Badiali v. New
Jersey Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div.
2012), aff'd ___ N.J. ___, ___ (2015) (slip op. at 3).

3 A-3007-12T2
 It is acknowledged that the amendment to
Count [Fifteen] is legally proper and
sufficient and will not be challenged on
appeal. [Defendant] reserves the right to
appeal the limited question of whether a
carry permit was required by the actors
under the facts of this case. [Defendant]
waives any other appellate issues and agrees
to withdraw the previously filed
interlocutory appeal.

Stabile executed the plea form on behalf of defendant. The

judgment of conviction entered on October 23, 2012, reflects

that the judge placed defendant on probation for one year,

imposed a $7500 fine to be paid over a period of three years,

and imposed other mandatory financial penalties.

On November 8, 2012, defense counsel wrote to the regional

office of OPD, indicating that defendant wished to appeal the

issue reserved at the time of its guilty plea, as well as the

imposition of the fine, and that his firm, which had not been

compensated, would not represent defendant. He further noted

the judge told Stabile at sentencing that "the corporation would

be entitled to a Public Defender if it could not afford an

attorney . . . ." Counsel stated that defendant, however, was

"turned away by the Public Defender's Office." Citing our

decision in In re CLM Construction Co., 277 N.J. Super. 329

(App. Div. 1994), defense counsel contended that defendant was

entitled to representation by OPD on appeal.

4 A-3007-12T2
 Based on a December 19, 2012 letter from an investigator

assigned to the vicinage Criminal Division Manager's Office, we

gather that Stabile applied on behalf of defendant for the

services of OPD on November 30. Stabile indicated that

defendant had sold its interest in Wild West City in 2007. The

corporation's only asset was "a 58 acre tract of land containing

a large area of wetlands." Review of defendant's financial

records revealed that it had "available bank funds of

$1,874.56," and it was in debt "due to past loans and attorney

fees." There was also a pending civil suit against defendant

based upon the July 7, 2006 incident. As a result, the

investigator approved defendant's application for OPD's services

"upon the acceptance of . . . [OPD]."2

On February 26, 2013, OPD filed a notice of appeal on

behalf of defendant, and, on September 11, OPD filed this motion

2
The record does not contain any order from the trial judge
appointing OPD to represent defendant on appeal. See R. 2:7-1
("[A] person, who by reason of poverty, seeks relief from the
payment of appellate filing fees . . . may without fee file with
the trial court a verified petition setting forth the facts
relied upon, and the court, if satisfied of the facts of
indigency, shall enter an order waiving such payment and
deposit.") (emphasis added); see also R. 2:7-2 ("All persons
convicted of an indictable offense who are not represented by
[OPD] and who desire to appeal, and who assert they are
indigent, shall complete and file . . . with the court in which
they were convicted, the appropriate form . . . . They shall
thereupon be referred to [OPD], which shall represent them on
such appeal . . . as would warrant the assignment of counsel
. . . .") (emphasis added).

5 A-3007-12T2
to be relieved as counsel. OPD argued that, pursuant to the

Public Defender Act (the PDA), N.J.S.A. 2A:158A-1 to -25, it

retained "some measure of discretion" regarding allocation of

its "limited resources." OPD also questioned the "value of

th[e] appeal," because defendant's probationary term was about

to end in October 2013, and the adverse decision defendant

sought to appeal involved the denial of its motion to dismiss

the original charge in the indictment, not the amended charge to

which it pled guilty. OPD also concluded that any appeal

regarding the imposition of a fine lacked merit.

On September 23, Stabile filed a letter brief in opposition

to the motion on behalf of defendant. Rule 1:21-1(c), however,

provides that subject to certain exceptions that do not apply

here, "an entity . . . other than a sole proprietorship shall

neither appear nor file any paper in any action in any court of

this State except through an attorney authorized to practice in

this State." We therefore appointed counsel to represent

defendant for purposes of this motion.3

In opposing OPD's motion, defendant argued that while OPD

has discretion to allocate its resources, it "lacks discretion

to deny representation to an indigent defendant," and, based

3
The Court wishes to extend its thanks to counsel for accepting
the designation.

6 A-3007-12T2
upon the express language of the PDA, the motion must be denied.

Additionally, citing N.J.S.A. 2A:158A-15.1, defendant contended

that review of OPD's request lay with the vicinage Assignment

Judge, although, because of the public interests at stake,

defendant urged us to exercise our original jurisdiction

pursuant to Rule 2:10-5 and decide the motion.4

We also requested that the State file a response to

defendant's motion. Although agreeing that the appeal lacked

merit, the assistant prosecutor who handled the prosecution in

the Law Division took no position on OPD's request to be

relieved.

At oral argument before us, OPD expanded upon its requested

relief. OPD argued that because no "liberty" interest is at

stake, it has no obligation to represent a corporate defendant

under any circumstances. OPD argued that to the extent our

prior decision in CLM Construction implies a contrary result, we

should overrule that precedent.

4
N.J.S.A. 2A:158A-15.1 provides in pertinent part: "A
determination to grant or deny the services of the Public
Defender shall be subject to final review by the Assignment
Judge or his designated judge." As noted, there was no order
from the Law Division appointing OPD, and the record fails to
disclose whether OPD sought such a review. In any event, the
statute has no particular application to the issue at hand,
because pursuant to Rule 2:7-3, a defendant's requests for
relief regarding the waiver of fees or the appointment of
counsel on appeal because of indigency, see R. 2:7-1 and -2, are
reviewable by this court.

7 A-3007-12T2
 I.

The only discussion in a published New Jersey decision as

to whether OPD is required to represent an indigent corporation

appears in a footnote in CLM Construction. There, the trial

judge appointed an OPD pool attorney, who had represented the

corporate president as an individual co-defendant, to also

represent the corporate defendant. CLM Const., supra, 277 N.J.

Super. at 330-32. Both defense counsel and the assistant

prosecutor advised the judge that OPD did not represent

corporations. Id. at 331. Nevertheless, the judge indicated he

would appoint counsel to represent the corporation. Id. at 332.

Although counsel provided personal justification for her

refusal, the judge would not reconsider his order of

appointment, ibid., and we granted counsel leave to appeal. Id.

at 330. We reversed the order, concluding that the judge failed

to comply with then-existing Rule 3:27-1,5 failed to make full

inquiry of the corporation or its president, and failed to

5
Rule 3:27-1 was subsequently deleted, and its text combined
with Rule 3:4-2. Pressler & Verniero, Current N.J. Court Rules,
comment on R. 3:27-1 (2015). Rule 3:4-2(b)(5) now provides that
at a defendant's first appearance, "the judge shall . . . if the
defendant asserts indigence, and does not affirmatively . . .
waive the right to counsel, assure that the defendant completes
the appropriate application form for public defender services
and files it with the criminal division manager's office[.]"

8 A-3007-12T2
acknowledge the attorney's objections to the appointment; we

remanded the matter for further proceedings. Id. at 334.

In a footnote, we discussed the assertion by counsel and

the prosecutor that OPD did not represent corporate defendants.

Id. at 331 n.2. We noted that our research "fail[ed] to uncover

any New Jersey authority specifically considering this point."

Ibid. We further observed that both State v. Rush, 46 N.J. 399

(1966), and State v. Horton, 34 N.J. 518 (1961), "discuss the

indigent's right to appointed counsel[,]" but that neither case

"distinguish[ed] between indigent individuals and indigent

corporations," and we specifically cited N.J.S.A. 1:1-2 for the

proposition that "a corporation is a person." CLM Const.,

supra, 277 N.J. Super. at 331 n.2. We then considered the

"eight determining factors for eligibility for public defender

representation" contained in N.J.S.A. 2A:158A-14, and noted that

three factors "clearly only apply to people[,]" but the

remaining five factors "may be read as applicable to people or

corporations." Ibid.

We further observed that neither the federal Criminal

Justice Act, 18 U.S.C.A. § 3006A, nor Federal Rule of Criminal

Procedure 44(a), "mentions indigent corporations." Ibid.

Additionally, we took note of two New York decisions, People v.

BNB Realty Corp., 379 N.Y.S.2d 324 (N.Y. Crim. Ct. 1976), and

9 A-3007-12T2
People v. Select Tire, 374 N.Y.S.2d 274 (N.Y. Crim. Ct. 1975),

holding that "the right to counsel, which protects only

individual or property rights, does not exist for corporations

where corporations could neither be imprisoned nor fined, based

on indigency." CLM Const., supra, 277 N.J. Super. at 331 n.2.

II.

We address the issue our footnote in CLM Construction

succinctly framed, but left unresolved, by first considering the

nature and scope of the fundamental right to counsel embodied in

the United States and New Jersey Constitutions.

A.

The Sixth Amendment to the United States Constitution

provides that "[i]n all criminal prosecutions, the accused shall

enjoy the right to . . . have the Assistance of Counsel for his

defence." The Amendment guarantees the right of a criminal

defendant to retain counsel of his choice, United States v.

Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 2561, 165 L.

Ed. 2d 409, 417 (2006), to the effective assistance of counsel,

and if indigent and facing the potential loss of "life or

liberty," to have counsel appointed at the government's expense.

Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d

383 (1979).

10 A-3007-12T2
 The right to counsel on appeal from a State court criminal

conviction derives not from the text of the Sixth Amendment, but

rather from the Fourteenth Amendment's equal protection

provisions. As we have explained,

Although there is no constitutional right to
an appeal, Griffin v. Illinois, 351 U.S. 12,
18, 76 S. Ct. 585, 590, 100 L. Ed. 891, 898
(1956), once a right to appeal is provided,
that right must be protected in a non-
discriminatory fashion. Accordingly, an
indigent defendant has a right to counsel on
direct appeal. Douglas v. California, 372
U.S. 353, 357, 83 S. Ct. 814, 816, 9 L. Ed.
2d 811, 814 (1963).

[State v. Coon, 314 N.J. Super. 426, 434
(App. Div.), certif. denied, 157 N.J. 543
(1998).]

The right to appointed counsel under the Sixth Amendment,

however, exists only when "the litigant may lose his physical

liberty if he loses the litigation." Lassiter v. Dep't of Soc.

Servs., 452 U.S. 18, 25, 101 S. Ct. 2153, 2158, 68 L. Ed. 2d

640, 648 (1981). "[A]s a litigant's interest in personal

liberty diminishes, so does his right to appointed counsel."

Id. at 26, 101 S. Ct. at 2159, 68 L. Ed. 2d at 649. "[I]t is

the defendant's interest in personal freedom, and not simply the

special Sixth and Fourteenth Amendments right to counsel in

criminal cases, which triggers the right to appointed counsel in

criminal cases. . . ." Id. at 25, 101 S. Ct. at 2158, 68 L. Ed.

2d at 648. Thus, "the line defining the [federal]

11 A-3007-12T2
constitutional right to appointment of counsel" is "actual

imprisonment," not fines or the threat of imprisonment. Scott,

supra, 440 U.S. at 373, 99 S. Ct. at 1162, 59 L. Ed. 2d at 389.

The federal circuits have held the Sixth Amendment applies

to corporations.

The sixth amendment describes the class of
persons protected by its terms with the word
"accused." This language does not suggest
that the protection of sixth amendment
rights is restricted to individual
defendants.

Furthermore, an accused has no less of
a need for effective assistance due to the
fact that it is a corporation. The purpose
of the guarantee is to ensure that the
accused will not suffer an adverse judgment
or lose the benefit of procedural
protections because of ignorance of the law.
A corporation would face these same dangers
unless the agent representing it in court is
a competent lawyer. Thus, the right to
effective assistance of counsel is not so
peculiarly applicable to individuals that
corporations should not be entitled to it.

Nor can we see how this right is in any
manner inconsistent with a corporation's
status as a creature of state law.
Consequently, we hold that the guarantee of
effective assistance of counsel applies to
corporate defendants.

[United States v. Rad-O-Lite of
Philadelphia, Inc., 612 F.2d 740, 743 (3d
Cir. 1979) (internal citations omitted);

12 A-3007-12T2
 accord United States v. Unimex, Inc., 991
F.2d 546, 549 (9th Cir. 1993).]6

Significantly, however, federal courts have uniformly held

that corporations, unlike defendants who are natural persons, do

not have a Sixth Amendment right to appointed counsel at public

expense. See United States v. Hartsell, 127 F.3d 343, 350 (4th

Cir. 1997); Unimex, Inc., supra, 991 F.2d at 550; United States

v. Rocky Mt. Corp., 746 F. Supp. 2d 790, 803 (W.D. Va. 2010);

United States v. Rivera, 912 F. Supp. 634, 638 (D.P.R. 1996);

Mid-Central/Sysco Food Servs., Inc. v. Reg'l Food Servs., Inc.,

755 F. Supp. 367 (D. Kan. 1991). The court in Rocky Mt. Corp.,

supra, 746 F. Supp. 2d at 800, explained:

[T]he corporation's right to counsel does
not precisely mirror the individual's right
to counsel. It follows that when we speak
of the corporation's Sixth Amendment right
to counsel, we in no way imply that it can
have counsel it cannot afford. Rather, what
the corporation has is the right to retain
the counsel of its choice to represent its
interests without undo governmental
intrusion. Thus, a corporation's Sixth
Amendment right in a criminal trial is its
right to retain counsel while an
individual's Sixth Amendment right includes
the right to appointed counsel. Unlike an
individual, a corporation cannot have what
it cannot afford.

6
Our Supreme Court has also explicitly recognized that the Sixth
Amendment's right to counsel applies to corporations. Matter of
668 Advisory Comm. on Prof'l Ethics, 134 N.J. 294, 302 (1993).

13 A-3007-12T2
 [(Emphasis added) (internal citation
omitted).]

See also Peter J. Henning, The Conundrum of Corporate Criminal

Liability: Seeking a Consistent Approach to the Constitutional

Rights of Corporations in Criminal Prosecutions, 63 Tenn. L.

Rev. 793, 885 (1996) (explaining that under the United States

Constitution, "a corporation cannot claim the same measure or

degree of protection that the individual defendant may claim").

The Sixth Amendment right to counsel is so limited because

corporations cannot be imprisoned or face a loss of liberty.

Unimex, Inc., supra, 991 F.2d at 550; Rivera, supra, 912 F.

Supp. at 638.

B.

In part, Article I, Paragraph 10 of the New Jersey

Constitution provides, "In all criminal prosecutions the accused

shall have . . . the assistance of counsel in his defense." 7 The

Court long ago noted, that "[f]rom very early days New Jersey

has considered the matter of counsel for an indigent criminal

defendant as one of absolute right under state law." Horton,

7
Our prior constitutions also included a right to counsel. N.J.
Const. of 1776, art. XVI ("all criminals shall be admitted to
the same privileges of witnesses and counsel, as their
prosecutors are or shall be entitled to"); N.J. Const. of 1844,
art. I, ¶ 8 (in all criminal prosecutions the accused shall have
the right to "the assistance of counsel in his defense"). See
Rush, supra, 46 N.J. at 403.

14 A-3007-12T2
supra, 34 N.J. at 522. Since 1795, New Jersey has legislated

the right of an indigent defendant to assigned counsel.

Patterson, Laws of the State of N.J., 162 (1800).8 See also

Robert J. Martin and Walter Kowalski, New Jersey Development: "A

Matter of Simple Justice": Enactment of New Jersey's Municipal

Public Defender Act, 51 Rutgers L. Rev. 637, 645 (1999) (noting

that New Jersey was the first state in the nation to enact

legislation providing assigned counsel to represent indigent

defendants in its courts).

In addition, "the right to appointed counsel for indigent

litigants has received more expansive protection under our state

law than federal law." Pasqua v. Council, 186 N.J. 127, 147 n.5

(2006). In many cases, the Court found support for such

expansion in Article I, Paragraph 1 of the New Jersey

Constitution, our State's equivalent of the due process

provisions of the Fifth and Fourteenth Amendments of the Federal

Constitution. Ibid.

For example, State constitutional due process rights

require the appointment of counsel for indigents in a variety of

8
The 1795 Act provided that "the court, before whom any person
shall be tried upon indictment, is hereby authorized and
required to assign to such person, if not of ability to procure
counsel, such counsel, not exceeding two, as he or she shall
desire, to whom such counsel shall have free access at all
seasonable hours." Paterson, Laws of New Jersey 162 (1800).

15 A-3007-12T2
situations where the loss of liberty is not at stake. See,

e.g., N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301,

306-07 (2007) (termination of parental rights); Doe v. Poritz,

142 N.J. 1, 31 (1995) (Meagan's law tier classification); In re

S.L., 94 N.J. 128, 142 (1983) (involuntary civil commitment).

State constitutional due process rights also require the

appointment of counsel in circumstances involving the potential

loss of liberty, albeit not as a result of a "criminal

prosecution[]." See Pasqua, supra, 186 N.J. at 149 (holding due

process requires the appointment of counsel for indigent parents

at risk of incarceration resulting from child support

enforcement hearings). Additionally, without referencing our

State Constitution, in Rodriguez v. Rosenblatt, 58 N.J. 281

(1971), the Court extended the right to appointed counsel to

indigent defendants in quasi-criminal municipal court

prosecutions. Concluding that result was compelled "as a matter

of simple justice," the Court held that "no indigent defendant

should be subjected to a conviction entailing imprisonment in

fact or other consequence of magnitude without first having had

due and fair opportunity to have counsel assigned without cost."

Id. at 295. Relying on the principle of "simple justice," in

State v. Hermanns, 278 N.J. Super. 19, 30 (App. Div. 1994), we

16 A-3007-12T2
subsequently held that imposition of significant fines

constituted a consequence of magnitude.9

Nonetheless, despite New Jersey's long history of assigning

counsel to represent indigent defendants, and the expanded

protections afforded under our constitution to other indigent

litigants, our research has revealed no case in which a court

has appointed counsel at public expense to represent an

"indigent" corporation.

III.

A.

The arguments made by defendant and OPD require us to

construe the PDA, and in doing so, we apply some well-recognized

tenets. "In statutory interpretation, a court's role 'is to

determine and effectuate the Legislature's intent.'" State ex

rel. K.O., 217 N.J. 83, 91 (2014) (quoting Allen v. V & A Bros.,

208 N.J. 114, 127 (2011)). "In construing any statute, we must

give words 'their ordinary meaning and significance,'

9
In an appendix to Part Seven of the court rules governing
practice in the municipal courts, and applicable to "persons
convicted of non-indictable offenses" seeking representation,
the term "consequence of magnitude" is defined as: 1) any
sentence of imprisonment; 2) any period of driver's license
suspension, suspension of non-resident reciprocity privileges or
driver's license ineligibility; or (3) any monetary sanction of
$800 or greater in the aggregate. Guidelines for Determination
of Consequence of Magnitude, Pressler & Verniero, Current N.J.
Court Rules, Appendix to Part VII (2015).

17 A-3007-12T2
recognizing that generally the statutory language is 'the best

indicator of [the Legislature's] intent.'" Tumpson v. Farina,

218 N.J. 450, 467 (2014) (alteration in original) (quoting

DiProspero v. Penn, 183 N.J. 477, 492 (2005)).

"However, not every statute is a model of clarity. When

the statutory language is sufficiently ambiguous that it may be

susceptible to more than one plausible interpretation, we may

turn to such extrinsic guides as legislative history, including

sponsor statements and committee reports." Wilson ex rel.

Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012) (citing

Burns v. Belafsky, 166 N.J. 466, 473 (2001)). "We may also turn

to extrinsic guides if a literal reading of the statute would

yield an absurd result, particularly one at odds with the

overall statutory scheme." Ibid. (citations omitted). A court

"should also 'be guided by the legislative objectives sought to

be achieved by enacting the statute.'" Town of Kearny v.

Brandt, 214 N.J. 76, 98 (2013) (quoting Wilson, supra, 209 N.J.

at 572). "Accordingly, when a literal interpretation of

individual statutory terms or provisions would lead to results

inconsistent with the overall purpose of the statute, that

interpretation should be rejected." Perrelli v. Pastorelle, 206

N.J. 193, 201 (2011).

18 A-3007-12T2
 The PDA provides in pertinent part that "[i]t shall be the

duty of [OPD] to provide for the legal representation of any

indigent defendant who is formally charged with the commission

of an indictable offense[,]" such representation "shall include

any direct appeal from conviction . . . ." N.J.S.A. 2C:158A-5

(emphasis added). Under the PDA, "'indigent defendant' means a

person who is formally charged with the commission of an

indictable offense, and who does not have the present financial

ability to secure competent legal representation, as determined

by the factors in [N.J.S.A. 2A:158A-14], and to provide all

other necessary expenses of representation." N.J.S.A. 2A:158A-2

(emphasis added).

Although "person" is not defined by the PDA, defendant

argues that, "[u]nless . . . otherwise expressly provided or

there is something in the subject or context repugnant to such

construction[,]" N.J.S.A. 1:1-2 supplies the meaning of certain

statutory "words and phrases." "The word 'person' includes

corporations . . . unless restricted by the context to an

individual as distinguished from a corporate entity . . . ."

Ibid.; see also N.J.S.A. 2C:1-14(g) (providing that under the

Criminal Code, "'[p]erson[]' . . . include[s] any natural person

and, where relevant, a corporation . . . ."). Defendant's

argument is straightforward. Since defendant is a person,

19 A-3007-12T2
charged with . . . an indictable offense and lacking the present

financial ability to secure competent representation on appeal,

it is an indigent defendant for purposes of the PDA, and,

therefore, OPD shall provide for its representation on appeal.

The two statutory provisions cited by defendant that

ostensibly supply the definition of "person" omitted from the

PDA by the Legislature, however, are limited by their very

terms. The definitions contained in N.J.S.A. 2C:1-14 are

expressly limited to the Criminal Code. The meanings of

statutory terms supplied by N.J.S.A. 1:1-2 must be rejected if

"there is something in the subject or context [of a statute that

is] repugnant to such construction." Specifically construing a

statute's use of "person" interchangeably with "corporation[]"

should be rejected if the word "person" is "restricted by the

context to an individual as distinguished from a corporate

entity . . . ." Ibid.

Decisions that have utilized the default meanings contained

in N.J.S.A. 1:1-2 as aids in interpreting specific statutory

language are too numerous to cite. See, e.g., Shelton v.

Restaurant.com, Inc., 214 N.J. 419, 430-31 (2013) (applying the

default meanings to terms left undefined by the Truth-in-

Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A.

20 A-3007-12T2
56:12-14 to -18). There are far fewer examples of decisions in

which the default meaning was explicitly rejected.

In In re Electrical Inspection Authorities, 127 N.J. Super.

295, 300 (App. Div. 1974), we considered, among other things,

whether N.J.S.A. 45:5A-17, which by its terms applied only to

municipalities, should be interpreted to also include counties.

We recognized that, pursuant to N.J.S.A. 1:1-2, the default

statutory meaning of "[m]unicipality" did not include counties.

Id. at 301. Nevertheless, we held:

The question is one of legislative intent.
In our view, the subject and context of the
quoted section indicates that . . . the
legislative intent was that the provisions
of N.J.S.A. 45:5A-17 should apply to all
governmental units, i.e., cities and
counties which, with statutory
authorization, provide for electrical
inspections . . . and that therefore the
word "municipality" should be construed to
include a county.

[Ibid. (emphasis added).]

In a different context, in Housing Authority of Atlantic

City v. Coppock, 136 N.J. Super. 432, 434 (App. Div. 1975), we

considered the default meaning of "month," as supplied by

N.J.S.A. 1:1-2 ("[t]he word 'month' means a calendar month").

We concluded in that case that the notice of termination served

upon the tenant thirty-one days prior to the filing of the

complaint complied with N.J.S.A. 2A:18-61.1(b) (requiring "one

21 A-3007-12T2
month's" prior notice). Ibid. We specifically rejected the

argument that the Anti-Eviction Act required "the termination be

directed to the end of the month."10 Ibid. We held that given

the express language of the lease that required thirty days'

notice, "the definition of 'month' in N.J.S.A. 1:1-2 as a

calendar month is inapplicable under these circumstances."

Ibid.

Whether the default meanings supplied by N.J.S.A. 1:1-2

support or defeat a particular construction returns us to the

lodestar of statutory interpretation — the intent of the

Legislature. See Shelton, supra, 214 N.J. at 431-36 (examining

"the background of the TCCWNA" to determine whether its "scope"

or the "context in which the [undefined] term . . . [was] used

[in the statute was] repugnant" to adopting the default

meaning); see also In re Electrical Inspection, supra, 127 N.J.

Super. at 300 (rejecting the default meaning when contrary to

intent of the Legislature).

In Hardwicke v. American Boychoir School, 188 N.J. 69, 87

(2006), the Court had to consider "whether an institution . . .

c[ould] be a 'person' under the [Child Sexual Abuse Act (CSAA),

N.J.S.A. 2A:61B-1]." Finding the meaning of the term

10
Although not explained in the decision, we infer that the
notice terminated the tenancy prior to the end of a calendar
month.

22 A-3007-12T2
"ambiguous," the Court "look[ed] beyond the language of the

statute and consider[ed] extrinsic evidence [and] . . .

statutory context[,]" id. at 88, as well as N.J.S.A. 1:1-2's

definition of "person." Id. at 89. Ultimately, the Court

concluded,

[i]n light of the language of the statute as
supplemented by the definition of person in
Title I, the extrinsic evidence of
legislative intent, and the State's strong
policy to hold both active and passive child
abusers accountable, we find that the
[defendant] is a person under the passive
abuse provision of the CSAA.

[Id. at 91.]

In short, if the default meaning of "person" supplied by

N.J.S.A. 1:1-2 leads to a result contrary to the Legislature's

intent when it enacted the PDA, that meaning must be rejected.

We are required, therefore, to examine the legislative history

of the PDA.

B.

As already noted, New Jersey's history of providing counsel

to indigent criminal defendants predates passage of the PDA by

nearly two centuries. From 1948 to 1967, counsel were assigned

to indigent defendants under various Rules of Court. For

example, Rule 1:12-9(a) (repealed 1967) provided that "[w]here a

person charged with a crime appears in a trial court without

counsel, the court shall advise him of his right to counsel

23 A-3007-12T2
. . . and if indigent, assign counsel to represent him. . . ."

The application for the assignment of counsel (Form 5A), set

forth in the Appendix to the 1967 Court Rule, contained

questions specifically geared toward an individual, not a

corporation, including whether the defendant was married, had
11
children, earned a salary, or was employed.

"In Rush, supra, 46 N.J. at 412, the Court decided that the

time had come to relieve the New Jersey bar of the task of

defending without compensation indigents accused of indictable

crimes." In re Cannady, 126 N.J. 486, 489 (1991). The

immediate solution arrived at by the Rush Court was to impose

the costs of providing counsel upon the counties. Ibid. The

11
The Court recently noted that the current forms similarly
collect

general personal data, such as name,
address, social security number, date of
birth, and marital status . . . . background
information on the defendant's family,
military service, and education . . . [and]
potentially sensitive information about a
defendant's past and present physical
condition, mental health, and drug and
alcohol use and treatment.

[In re Custodian of Records, Criminal Div.
Manager, 214 N.J. 147, 159-160 (2013).]

We attach a sample of the current form as an appendix to this
opinion. As is apparent, the form implicitly seeks information
unique to a natural person.

24 A-3007-12T2
Court delayed the effective date of its decision, however, to

permit the Legislature to decide how best to provide for the

indigent representation of criminal defendants indicted for

crimes. Id. at 489-90. The Legislature responded by enacting

the PDA in 1967, L. 1967, c. 43, replacing the assigned counsel

system with a statewide program for the defense of indigents at

public expense.

To some degree, the PDA was intended to address the

expected increased costs to individual counties as a result of

the Rush decision. This is clear from sponsors' statements in

support of earlier versions of the bill, see e.g., Sponsor's

Statement to A. 752, at 2 (1967) (noting that increased costs to

counties would result in "an undue burden"), and the Governor's

Statement to S. 287, (1967) (noting that appropriations to fund

the public defender system were the "result of a determined

effort by the State government to . . . be of assistance to our

counties").

Foremost and primarily, however, the PDA was intended to

meet the state's obligation under the Sixth Amendment to provide

court-appointed counsel to indigent defendants, as was then very

recently applied to the states through the Fourteenth

Amendment's Due Process Clause in Gideon v. Wainwright, 372 U.S.

335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). See Public Hearings

25 A-3007-12T2
before Special (Senate) Committee to Determine the Advisability

of providing for the Establishment of a Public Defender System

in the Several Counties, at 2, 27, 31, 40, 59, 11A (Sept. 8,

1965) (noting that Gideon imposed a "tremendous responsibility"

on the State to insure an indigent defendant's right to

appointed counsel).

The PDA as enacted implemented recommendations contained in

the December 22, 1966 report of the "Commission on the Defense

of Indigent Persons Accused of Crime" ("Report").12 See Cannady,

supra, 126 N.J. at 490; Sponsor's Statement to S. 287, at 7

(1967); Governor's Statement to S. 287, supra. In considering

who was entitled to appointed counsel at public expense, the

Commission implicitly spoke in terms of natural persons:

Perhaps the most difficult problem is the
matter of defining who is "indigent."
Several decades ago the term meant an actual
pauper who was entirely without means.[13]
The term no longer has this narrow
significance. In general, it is now widely
understood as referring to a person who is
unable to afford the cost of engaging
counsel to represent him.

[Report, supra, at 5 (emphasis added).]

12
The Report can be found at 90 N.J.L.J. 17 (Jan. 12, 1967).
13
A "pauper" is defined as "[a] very poor person, esp[ecially]
one who receives aid from charity or public funds." Black's Law
Dictionary 1243 (9th ed. 2009).

26 A-3007-12T2
Similarly, earlier public hearings on the proposed PDA, where

pre-eminent lawyers of the day engaged in all aspects of the

legal profession testified, contain repeated references to the

need to provide publicly-financed counsel to "individuals,"

"paupers" and "poor men," without any reference to corporations.

Public Hearings, supra, at 2, 41, 60.

The Court has said that the Legislature created OPD to

"ensure that the State fulfilled its constitutional obligation

to provide legal services for indigent defendants." In re

Custodian of Records, supra, 214 N.J. at 158. The PDA expressly

provides, "It is hereby declared to be the policy of this State

to provide for the realization of the constitutional guarantees

of counsel in criminal cases for indigent defendants . . . ."

N.J.S.A. 2A:158A-1 (emphasis added). Tellingly, however, the

PDA does not track exactly the language of the Sixth Amendment

or the right to counsel provided by our Constitution, both of

which accord the right to "the accused" in criminal

prosecutions.

C.

As initially adopted, the PDA did not provide for the

representation of indigent defendants charged with non-

indictable offenses or juveniles. See In re State in Interest

of Antini, 53 N.J. 488, 492 (1969). With regard to non-

27 A-3007-12T2
indictable offenses, in 1974, in response to the Court's

decision in Rodriguez, supra, 58 N.J. at 281, the Legislature

amended the PDA, L. 1974, c. 33, to expand representation to

"include persons charged as juvenile delinquents or juveniles in

need of supervision, persons charged with parole violation, and

indigent disorderly persons." Sponsor's Statement to A. 1298 at

2 (1974). See In re Contempt of Spann, 183 N.J. Super. 62, 67

(App. Div. 1982). N.J.S.A. 2A:158-5.2 provides:

The Public Defender shall . . . provide for
the legal representation of any person
charged with a disorderly persons offense or
with the violation of any law, ordinance or
regulation of a penal nature where there is
a likelihood that the persons so charged, if
convicted, will be subject to imprisonment
or, in the opinion of the court, any other
consequence of magnitude.

[(emphasis added).]

The Legislature clearly intended to expand the universe of

offenses triggering the right to counsel at public expense for

indigent defendants. The amendment did not, however, expand the

definition of "indigent defendants" to include indigent

corporations.14

14
The amendment also did not define the term "consequence of
magnitude." The current guidelines include two criteria, a
sentence of imprisonment and suspension of a driver's license,
that can only apply to natural persons. Pressler & Verniero,
supra, Appendix to Part VII (2015). One criterion, "any
(continued)

28 A-3007-12T2
 In any event, the Legislature failed to appropriate the

funds necessary to expand OPD to the municipal court level. As

a result, OPD was never required to assume its statutory

obligation under N.J.S.A. 2A:158-5.2. Madden v. Delran, 126

N.J. 591, 612 (1992); Spann, supra, 183 N.J. Super. at 67.15

As originally enacted, the PDA also did not provide for the

representation of indigent juveniles. However, just thirteen

days after the PDA was enacted, on May 15, 1967, the United

States Supreme Court held that an indigent juvenile had the

right to be furnished with counsel during "proceedings to

determine delinquency which may result in commitment to an

institution in which the juvenile's freedom is

curtailed. . . ." In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428,

1451, 18 L. Ed. 2d 527, 554 (1967).

As a result, our Supreme Court amended former Rule 6:3-4(c)

and (d) (1968 (now repealed)), to provide for the assignment of

(continued)
monetary sanction of $800 or greater in the aggregate," could
apply to natural persons and corporations.
15
In 1997, the Legislature enacted the Municipal Public Defender
Act, which created a separate system of municipal public
defenders, N.J.S.A. 2B:24-1 to -17. The legislation does not
shed light on the issue presented, since it similarly requires
representation of an "indigent person," N.J.S.A. 2B:24-2, who
likely, "if convicted, . . . will be subject to imprisonment or
other consequence of magnitude." N.J.S.A. 2B:24-7(a).

29 A-3007-12T2
counsel for indigent juveniles, albeit, not by the OPD, but

under the old alphabetical rotation system as set forth in Rule

1:12-9(c) (1968 (now repealed)). The Court in Antini, supra, 53

N.J. at 494-95, directed, as it had in Rush, supra, 46 N.J. at

415, that "lawyers who provided services since the decision in

Gault was handed down should be reimbursed for any out-of-pocket

expenditures, and the juvenile court judges are authorized to

enter orders, after appropriate application, directing payment

thereof by the particular county."

The Legislature's response was again swift. It amended the

PDA, L. 1968, c. 371, to provide for representation of juveniles

by the OPD:

[T]he Public Defender shall . . . provide
for the legal representation of any person
who is charged as a juvenile delinquent or
as a juvenile in need of supervision and
where in the opinion of the juvenile judge
the prosecution of the complaint may result
in the institutional commitment of such
person.

[N.J.S.A. 2A:158A-24.]

D.

These two examples demonstrate the Legislature's clear

ability to amend the PDA in order to address the rapidly

changing legal landscape whenever the rights of indigent

defendants are implicated. In both situations, the impetus

behind the amendments to the PDA were the vital personal liberty

30 A-3007-12T2
interests at stake. On other occasions, the Legislature has not

hesitated to enact legislation, separate from the PDA, to ensure

that the rights of indigent natural persons are protected by

representation through OPD.

For example, the Legislature enacted legislation that

requires the Office of Parental Representation in OPD to

represent parents and guardians charged in abuse and neglect

cases, or those facing the loss of parental rights, in accord

with their constitutional rights. See, e.g., B.R., supra, 192

N.J. at 306-07; N.J.S.A. 9:6-8.21; N.J.S.A. 9:6-8.30; N.J.S.A.

9:6-8.43(a); N.J.S.A. 30:4C-15.4(a).

Similarly, the Division of Mental Health Advocacy in OPD

provides representation at civil commitment hearings, as

constitutionally guaranteed, see S.L., supra, 94 N.J. at 142,

and statutorily required, not under the PDA, but pursuant to the

civil commitment statutes and court rules. See, e.g., N.J.S.A.

30:4-27.11(c); N.J.S.A. 30:4-27-12(d); R. 4:74-7(c)(2); R. 4:86-

10. OPD counsel is also provided by statute when an indigent

defendant faces commitment under the Sexually Violent Predator

Act, N.J.S.A. 30:4-27.24 to -27.38, as constitutionally

guaranteed, In re Commitment of D.L., 351 N.J. Super. 77, 89

(App. Div. 2002), certif. denied, 179 N.J. 373 (2004), and as

31 A-3007-12T2
statutorily required by Title 30. N.J.S.A. 30:4-27.29(c);

N.J.S.A. 30:4-27.31.

E.

We distill from this discussion the following. The PDA was

born from a legislative desire to practically and publicly fund

the criminal defense of indigents, as required by evolving

federal constitutional doctrine and the long history of New

Jersey's constitutional and statutory right to counsel. The

legislative history of the PDA demonstrates that, at its

inception, the focus of the proposed legislation was on the

protection of the rights of "indigent people" who were natural

persons, not corporations or other business entities. Although

the Legislature could have specifically included corporations or

other business entities within the PDA's definition of "indigent

defendants," it declined to do so. See, e.g., Zabilowicz v.

Kelsey, 200 N.J. 507, 517 (2009) ("The Legislature knows how to

draft a statute to achieve that result when it wishes to do

so."). Yet, whenever necessary, the Legislature has either

amended the PDA or enacted other laws to specifically provide

for the representation by OPD of natural persons whose personal

liberty rights may be adversely affected, or who face other

consequences of magnitude.

32 A-3007-12T2
 We conclude, therefore, that it "is repugnant" "to the

subject [and] context" of the PDA, N.J.S.A. 1:1-2, to construe

the word "person" as used in the PDA to include a corporation.

Such a construction is contrary to the Legislature's intent when

it first enacted the PDA, an intention since restated by various

amendments to the PDA and other legislation.

F.

Our conclusion is supported by an examination of federal

decisions that have interpreted language in the CJA and the

Dictionary Act, 1 U.S.C.A. § 1 to § 8, that is similar to that

of the PDA.

The court in Unimex, supra, 991 F.2d at 549-50, explained

that the CJA

provides for appointment of counsel for an
indigent "person," but does not say whether
a corporation is a "person" for purposes of
appointment of counsel. 18 U.S.C. §
3006A(a). The word "person" in a federal
statute includes corporations "unless the
context indicates otherwise." 1 U.S.C. § 1.
In the statute providing for appointment of
counsel, the context does indeed "indicate
otherwise." . . . . The statutory context
includes a list of classes of persons
eligible, with catch-all clauses for a
financially eligible person who "is entitled
to appointment of counsel under the sixth
amendment to the constitution" or "faces
loss of liberty." 18 U.S.C. §
3006A(a)(1)(H),(I). If the purpose of the
statute is to assure that criminal
defendants' constitutional right to
appointed counsel is protected, then no

33 A-3007-12T2
 appointments are needed for corporations
. . . . Although authority is scarce, we
conclude from context that the CJA does not
so provide either.

As a result, the federal courts have uniformly denied indigent

corporations representation under the CJA. In re Grand Jury

Proceedings, 469 F.3d 24, 26 (1st Cir. 2006); Hartsell, supra,

127 F.3d at 350; Rivera, supra, 912 F. Supp. at 638; United

States v. Hoskins, 639 F. Supp. 512, 514 (W.D.N.Y. 1986), aff'd

o.b. 875 F.2d 308 (2d Cir. 1989).

IV.

We note that the legislatures of a number of our sister

states have implicitly limited the right to appointed counsel at

public expense to indigent criminal defendants who are natural

persons. Some have done so by conditioning the appointment to

situations where imprisonment is probable or possible. See

e.g., Ark. Code Ann. § 16-87-213(a)(1)(A), 213(a)(2)(A) (2014)

(setting forth procedure for "any person charged with an offense

punishable by imprisonment" to obtain public defender services);

Conn. Gen. Stat. § 51-289, 51-296 (2014) (appointing the public

defender unless the court states on the record that the sentence

will not involve incarceration); Ga. Code. Ann. § 17-12-23(a)(1)

(2014) (providing for representation in actions where "there is

a possibility that a sentence of imprisonment or probation or a

suspended sentence of imprisonment may be adjudged"); Ind. Code

34 A-3007-12T2
Ann. § 33-40-1-2 (a)(1) (2014) (defining person entitled to

representation by the public defender as one "confined in a

penal facility in Indiana or committed to the department of

correction due to a criminal conviction"); La. Rev. Stat. Ann. §

15:142(A) (2014) (citing the Louisiana constitution, which

requires indigence and charges for an offense punishable by

imprisonment); Mich. Comp. Laws Serv. § 780.983(d) (2014)

(requiring that a defendant both indigent and "prosecuted or

sentenced for a crime for which an individual may be imprisoned

upon conviction"); N.H. Rev. Stat. Ann. § 604-A:1 (making

representation at public expense a "precondition of

imprisonment"); N.Y. County Law § 722-a (2014) (public defenders

are appointed when "a term of imprisonment is authorized upon

conviction thereof"); Ohio Rev. Code Ann. §120.06(A)(1) (2014)

(limiting representation to those "who are charged with the

commission of an offense or act for which the penalty or any

possible adjudication includes the potential loss of liberty");

Utah Code Ann. § 77-32-302(1) (2014) (providing for defense "if

the indigent is under arrest for or charged with a crime in

which there is a substantial probability that the penalty to be

imposed is confinement in either jail or prison"); Va. Code Ann.

§ 19.2-159(A) (2014) (public defender available if defendant is

indigent and "the charge against him . . . may be punishable by

35 A-3007-12T2
death or confinement in the state correctional facility or

jail"); W. Va. Code Ann. § 29-21-2(2) (defining an "eligible

proceeding" for public defender services as one where "criminal

charges [] may result in incarceration") (2014); Wis. Stat. §

977.08(2) (2014) (authorizing the State Public Defender to

assign attorneys to represent indigents in "crime[s] against

life," other felonies, and misdemeanors that are "punishable by

imprisonment").

Other states have defined the class of indigent defendants

eligible for appointed counsel at public expense such that only

natural persons could qualify. See e.g., Alaska Stat. §

18.85.170(4) (2014) (defining indigent person as one who "does

not have sufficient assets, credit, or other means to provide

for payment of an attorney and all of the necessary expense of

representation without depriving the party or the party's

dependents of food, clothing, or shelter"); Or. Rev. Stat. §

135.050(1)(d) (2014) (eligible if "financially unable to retain

adequate representation without substantial hardship in

providing basic economic necessities to the defendant or the

defendant's dependent family"); R.I. Gen. Laws. § 12-15-8

(defining indigent defendants eligible for the public defender

as those who "after payment of necessary expenses for food,

36 A-3007-12T2
shelter and medical care, do[] not have sufficient income or

assets to enable him or her to retain counsel").

In Illinois, "[t]he constitutional right to appointed

counsel is limited to criminal proceedings which result in

actual imprisonment, and the statutory right to counsel is

similarly limited." Chicago v. Pudlo, 462 N.E.2d 494, 498 (Ill.

App. Ct. 1983), cert. denied, 471 U.S. 1066, 105 S. Ct. 2140, 85

L. Ed. 2d 497 (1985). Notably, however, Illinois law also

specifically provides that "[i]f the accused is a dissolved

corporation and is not represented by counsel, the court may, in

the interest of justice, appoint as counsel a licensed attorney

of th[e s]tate." 725 Ill. Comp. Stat. 5/113-3(a) (2014).

V.

We conclude the Legislature never intended that an indigent

corporation be provided with counsel at public expense pursuant

to the PDA. We therefore relieve OPD of any further

representation of defendant in the prosecution of this appeal.

We also reaffirm, however, that because corporations are

entitled to the assistance of counsel under both the United

States Constitution and New Jersey Constitution, because New

Jersey precedent requires the appointment of counsel whenever a

defendant is charged with a crime or likely faces a consequence

of magnitude, and because our Rules of Court specifically

37 A-3007-12T2
provide for the appointment of counsel in such circumstances on

appeal, the Clerk's Office shall work with the vicinage Criminal

Division Manager to designate counsel to represent defendant

hereafter.16

An appropriate order has been entered.

16
We reach this conclusion independently of our court rules
which, absent certain limited exceptions, do not permit
corporations to appear as self-represented litigants. R. 1:21-
1(c).

38 A-3007-12T2
39 A-3007-12T2
40 A-3007-12T2
41 A-3007-12T2
42 A-3007-12T2