State of New Jersey v. A.L.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4429-13T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
v. May 18, 2015

APPELLATE DIVISION
A.L.1,

Defendant.
________________________________

Argued: April 28, 2015 – Decided: May 18, 2015

Before Judges Reisner, Haas and Currier.

On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment
No. 10-12-0770.

Remi L. Spencer argued the cause for
appellant M.B. (Spencer & Associates, LLC,
attorneys; Ms. Spencer, on the briefs).

Matthew Murphy, Assistant Prosecutor, argued
the cause for respondent State of New Jersey
(Geoffrey D. Soriano, Somerset County
Prosecutor, attorney; Mr. Murphy, of counsel
and on the briefs).

Jenny M. Hsu, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General (John J. Hoffman, Acting Attorney

1
We use initials for the relevant parties, A.L. and M.B., and
have impounded the record to protect their privacy and safeguard
confidential information, pending further proceedings in this
matter. As indicated in this opinion, any hearing in this case
should have been conducted in camera, and the prosecutor's
office should not have publicly disseminated the parties'
financial information during the court's investigation.
 General, attorney; Ms. Hsu, of counsel and
on the brief).

Matthew Astore, Deputy Public Defender,
argued the cause for amicus curiae Public
Defender (Joseph E. Krakora, Public
Defender, attorney; Mr. Astore, of counsel
and on the brief).

The opinion of the court was delivered by

HAAS, J.A.D.

In this case of first impression, we determine the

procedures that should be used to review the indigency status of

a defendant who has been convicted of a crime and who requests

the services of the Office of the Public Defender (OPD) to file

an appeal on her behalf. During the pendency of defendant's

appeal from her conviction, the State filed a motion with the

trial court, rather than this court, seeking to prohibit the OPD

from continuing to represent defendant in the appeal based upon

its assertion that defendant was not indigent. We conclude

that, pursuant to the clear language of Rule 2:9-1(a), this

motion should have been filed with the Appellate Division in the

first instance.

I.

In order to place the factual issues raised in this matter

in their proper context, we begin with a review of the law in

this area.

2 A-4429-13T2
 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

[or her] defen[s]e." "The Amendment guarantees the right of a

criminal defendant to retain counsel of his [or her] choice, 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." State v. Western World,

Inc., ___ N.J. Super. ___ (App. Div. 2015) (slip op. at 11)

(citations omitted).

As our Supreme Court recently explained in In re Custodian

of Records, Criminal Division Manager, 214 N.J. 147, 158 (2013),

New Jersey "has a long history of publicly funded representation

of indigent defendants." (citations omitted). In 1967, the

Legislature enacted the Public Defender Act, which created the

OPD. N.J.S.A. 2A:158A-1 to -25. "The [OPD] represents all

indigent defendants charged with an indictable offense.

N.J.S.A. 2A:158A-5. The statute defines an indigent defendant

as one 'who does not have the present financial ability to

secure competent legal representation.' N.J.S.A. 2A:158A-2."

In re Custodian of Records, supra, 214 N.J. at 159.

The OPD provides legal services to indigent defendants both

at trial and on appeal. Western World, supra, (slip op. at 11).

3 A-4429-13T2
At the trial level, judges are required to advise a defendant of

his or her right to representation by the OPD at the time of the

defendant's first appearance before the court. R. 3:4-2(b)(3).

"[I]f the defendant asserts indigence," the judge must "assure

that the defendant completes the appropriate application form

for [OPD] services and files it with the [C]riminal [D]ivision

[M]anager's office[.]" R. 3:4-2(b)(5).

"To determine whether a defendant qualifies for a public

defender, a court staff member collects information about a

defendant's financial status. That information is then

collected on the third page of an intake form, known as the

Uniform Defendant Intake Report (UDIR)." In re Custodian of

Records, supra, 214 N.J. at 151. The third page of the UDIR is

known as "the 5A Form." Id. at 160. On this form, "the

defendant provides employment and financial information and

indicates whether he or she requests representation by" the OPD.

Ibid. The 5A Form does not require a defendant to provide any

financial information concerning his or her spouse or any other

immediate family members.

"The defendant must certify the accuracy of the financial

data set forth on the form." Id. at 151. Prior to the Court's

May 14, 2013 decision in In re Custodian of Records, supra, the

information the defendant provided in a 5A Form was "prohibited

4 A-4429-13T2
from use in grand jury proceedings and at trial, even for the

purposes of cross-examination[,]" but could "be used at

sentencing unless the defendant object[ed]." Id. at 161.

The Criminal Division Manager's office is charged with the

responsibility of reviewing a defendant's 5A Form and assessing

the defendant's claim of indigency. R. 3:8-3. In making the

indigency determination, the Manager considers the factors set

forth in N.J.S.A. 2A:158A-14. In pertinent part, this statute

states:

Eligibility for the services of the Office
of the Public Defender shall be determined
on the basis of the need of the defendant.
Need shall be measured according to:

a. The financial ability of the defendant
to engage and compensate competent private
counsel;

b. The current employment, salary and
income of the defendant including prospects
for continued employment if admitted to
bail;

c. The liquid assets of the defendant,
including all real and personal property and
bank accounts;

d. The ability of the defendant to make
bail and the source of bail posted;

e. Where appropriate the willingness and
ability of the defendant's immediate family,
friends or employer to assist the defendant
in meeting defense costs;

f. Where appropriate an assessment of the
probable and reasonable costs of providing a

5 A-4429-13T2
 private defense, based upon the status of
the defendant, the nature and extent of the
charges and the likely issues;

g. Where appropriate, the ability of the
defendant to demonstrate convincingly that
he has consulted at least three private
attorneys, none of whom would accept the
case for a fee within his ability to pay;
and

h. The ability of the defendant to provide
all other necessary expenses of
representation.

[N.J.S.A. 2A:158A-14.]

If the Manager "determines that a defendant seeking the services

of [the OPD] is indigent, he or she is referred to the [OPD] no

later than the pre-arraignment conference. R. 3:8-3, 3:9-1(a)."

In re Custodian of Records, supra, 214 N.J. at 160 n.2.

If the criminal proceeding results in a conviction, either

following a trial or a plea, the defendant completes a new 5A

Form that becomes part of the presentence report that is relied

upon by the judge, the prosecutor, and the public defender at

the sentencing hearing. Id. at 157. At sentencing, the judge

must "advise the defendant of the right to appeal and, if the

defendant is indigent, of the right to appeal as an indigent."

R. 3:21-4(h). The 5A Form provided with the presentence report

then becomes the defendant's application for OPD services on

appeal. The Criminal Division Manager reviews the 5A Form and

advises the OPD whether the defendant is indigent. If so, the

6 A-4429-13T2
OPD undertakes the defendant's representation and files a notice

of appeal to the Appellate Division, or provides representation

in the event of an appeal filed by the State.

"A determination to grant or deny the services of the [OPD]

shall be subject to final review by the Assignment Judge or his

[or her] designated judge." N.J.S.A. 2A:158A-15.1. In cases

where the Criminal Division Manager determines that the

defendant is not indigent, review by the Assignment Judge will

usually occur before the OPD becomes involved in the case.

However, if "a determination of eligibility cannot be made

before the time when the first services are to be rendered, or

if an initial determination is found to be erroneous," the OPD

shall represent the defendant on a provisional basis. N.J.S.A.

2A:158A-14. If the defendant is subsequently determined to be

ineligible, "the defendant shall . . . be obliged to engage his

[or her] own counsel and to reimburse the [OPD] for the cost of

the services rendered to that time." Ibid.

In addition, "[t]he reasonable value of the services

rendered to a defendant" by the OPD "may in all cases be a lien

on any and all property to which the defendant shall have or

acquire an interest." N.J.S.A. 2A:158A-17a. The OPD must

"effectuate such lien whenever the reasonable value of the

services rendered to a defendant appears to exceed $150 . . . ."

7 A-4429-13T2
Ibid. In its amicus brief, the OPD represented that liens are

filed in every case where it provides legal services to an

indigent client.

In In re Custodian of Records, the Court dealt with the

situation where the State believed a defendant who had been

found eligible for OPD services prior to his arraignment was not

truly indigent. Supra, 214 N.J. at 153-54. The defendant had

been indicted on a number of offenses, including first-degree

money laundering, N.J.S.A. 2C:21-25; first-degree racketeering,

N.J.S.A. 2C:41-2; and third-degree promoting gambling, N.J.S.A.

2C:37-2. Id. at 153. During its investigation of these

offenses, the State "had obtained documents . . . that suggested

[the] defendant owned substantial assets." Id. at 154.

The State issued a trial subpoena seeking to obtain a copy

of the 5A Form used to determine defendant's indigency for the

trial proceedings. Ibid. "[T]he State proffered that it sought

the documents to investigate whether [the] defendant

fraudulently represented his assets to obtain public defender

representation" and, if so, "to prosecute him for fraud[.]" Id.

at 155, 157. The State represented that it would not use the

information in defendant's 5A Form "as evidence in his current

criminal matter[.]" Id. at 157. In addition, the State

asserted that it needed the form in order "to apply to the court

8 A-4429-13T2
for termination of [the] defendant's court-appointed counsel[.]"

Id. at 163.

In In re Custodian of Records, the Court held that the

"discovery sought by the State [was] not essential to the

court's review of the State's challenge to defendant's indigency

status." Ibid. Nor was a formal motion necessary to initiate a

review. Instead, the Court observed that the State "or any

other person or entity" could simply present "any evidence that

bears on [the] defendant's qualification for public defender

representation" to the Assignment Judge. Id. at 164 n.4. The

Assignment Judge would then conduct an investigation by

reviewing the defendant's 5A Form, and "'obtain[ing] information

from any public record office of the State or of any subdivision

thereof on request and without payment of the fees ordinarily

required by law.'" Id. at 164 (quoting N.J.S.A. 2A:158A-15.1).

Once this information was assembled, the Court noted that

the Assignment Judge would "compare [the] defendant's disclosure

on the form with other financial data made available to the

court in connection with the application, and determine whether

[the] defendant is legitimately entitled to publicly financed

legal assistance." Ibid. The Court stated that, where the

documents are "uncomplicated, the Assignment Judge may analyze

them in camera without the assistance of counsel or experts."

9 A-4429-13T2
Ibid. Following this review, "[i]f the Assignment Judge finds

that [the] defendant did not qualify for appointed counsel, he

[or she] may terminate the appointment." Id. at 166 (citations

omitted).

The Court stated that challenges to an indigency

determination should be made "at an early court appearance[.]"

Id. at 171. The reason for requiring a prompt resolution of any

issue regarding a defendant's indigency is clear. OPD

representation is critical to the fair and efficient functioning

of the criminal court system and, therefore, objections to OPD

representation must be raised at the earliest possible time to

avoid disruption of criminal trials and appeals.

With regard to the State's claim that it needed the 5A Form

to determine whether to prosecute the defendant "for a

fraudulent financial disclosure[,]" the Court ruled that the

State could not obtain the form through a trial subpoena. Id.

at 165. Because the defendant was advised at the time he

completed the form that it "would not be used in a grand jury

proceeding or at trial[,]" the Court held that the form could

not be used by the State "to prosecute him for false swearing or

fraud[.]" Id. at 165-66.

Thus, the Court directed that the 5A Form be modified to

advise future defendants that: "'At the direction of the

10 A-4429-13T2
Assignment Judge acting on his or her own initiative, or in

response to a valid grand jury subpoena with the approval of the

Assignment Judge, [the 5A Form] may be produced to a grand jury

and a prosecutor.'" Id. at 167-8. The Court also ruled that

"if prosecutors seek to preserve the option to subpoena the

financial and employment information that defendants supply on

the" 5A Form, they must first ask the trial court "at an early

court appearance attended by court-appointed counsel" to require

the defendant to "affirm" that: the information on the form is

true; he or she "understands that willfully false statements on

the form . . . may subject him or her to punishment"; and "the

defendant understands that information about finances and

employment may be disclosed to a grand jury and the

prosecution." Id. at 168. The court must also give the

defendant the opportunity to revise his or her 5A form after

this inquiry is made.2 Ibid.

The Court also confirmed that the information disclosed by

a defendant on the 5A Form "should not be used by the

prosecution to prove the pending case, even if the defendant's

finances are relevant to the pending charges." Ibid.

Significantly, the Court cautioned that, in order

2
On May 29, 2013, the Administrative Office of the Courts
promulgated Administrative Directive 03-13 setting forth these
new requirements.

11 A-4429-13T2
 [t]o protect against the use of information
provided by defendants in the pending trial,
and to guard against improper accusations of
abuse, a separate team of prosecutors and
investigators -- who are not involved with
the pending case -- should be assigned to
any new investigation relative to the
contents of the [5A] [F]orm."

[Id. at 168-69.]

Finally, the Court directed prosecutors seeking disclosure

of the "financial data in" 5A Forms to "proceed by way of a

grand jury subpoena, not a trial subpoena . . . ." Id. at 169.

These "grand jury subpoenas should be presented to the Criminal

Division Manager and the Assignment Judge along with an

accompanying affidavit from the prosecutor that details the

basis for the subpoena -- a showing that the intake form

contains false information." Id. at 170. The Assignment Judge

would then "determine, within his or her discretion, whether the

State's proofs justify disclosure of the" 5A Form. Ibid. The

Court stated that it "expect[ed] that it will be the rare case

in which the State presents sufficient proof of fraud to warrant

disclosure." Ibid.

While the Court's decision applied only to criminal matters

pending at the trial level, we believe that most, but not all,

of the principles established also apply when a judgment of

conviction has been appealed to this court. As noted above, the

defendant's 5A Form is included as part of the presentence

12 A-4429-13T2
report and is used to determine the defendant's eligibility for

OPD representation on appeal. Thus, the Criminal Division

Manager's review of the application, and any analysis required

by the Assignment Judge, will ordinarily occur before the appeal

is filed and, therefore, before we acquire jurisdiction of the

matter.

However, once a notice of appeal has been filed, "the

supervision and control of the proceedings on appeal . . . shall

be in the [A]ppellate [Division] from the time the appeal is

taken . . . ." R. 2:9-1(a). Thus, requests to disqualify the

OPD, filed after an appeal has been docketed, must be presented

to us in the first instance. Ibid.

In cases where the State makes an early request for an

indigency review as required by In re Custodian of Records,

supra, we anticipate that we would usually order a limited

remand to the Assignment Judge to consider the factual issue of

the defendant's indigency, while retaining jurisdiction to make

the decision as to whether the OPD should be disqualified from

representing the defendant on appeal. See State v. Hogue, 175

N.J. 578, 583 (2003) (granting a limited remand pending appeal

"when consideration of a particular issue by the trial court

will enable full resolution of the controversy by the appellate

court or is necessary to deal with an essential matter

13 A-4429-13T2
implicating the issues on appeal arising after the notice of

appeal is filed") (citation and internal quotation marks

omitted).

However, where the matter has proceeded sufficiently far in

the appellate process that an indigency review and the potential

disqualification of a defendant's public defender would

seriously disrupt the appeal and impermissibly infringe upon the

defendant's right to counsel, a different approach is required.

As we will now discuss, that is the situation presented in the

case at hand.

II.

On November 27, 2012, a jury convicted defendant A.L. of

second-degree vehicular homicide, N.J.S.A. 2C:11-5a; and third-

degree assault by auto, N.J.S.A. 2C:12-1c(2). During the

lengthy trial, defendant had been represented by private

counsel. Sentencing was scheduled for February 14, 2013.

On January 29, 2013, the OPD advised the Criminal Division

Manager that defendant had requested that a public defender

represent her on appeal. The OPD asked the Manager to determine

whether defendant was indigent.

In preparation for the sentencing, Criminal Division staff

prepared a presentence report, which included a copy of

defendant's 5A Form. This form was not signed or dated by

14 A-4429-13T2
defendant. A notation at the bottom of the form indicates that

it was printed on January 30, 2013, together with the rest of

the presentence report. According to the brief it filed with

the Assignment Judge in support of its motion to disqualify

defendant's appellate counsel, the prosecutor's office received

the presentence report and defendant's 5A Form on that same

date. A copy of this form also appears in the appendix to the

State's motion brief.

On February 5, 2013, the Criminal Division Manager advised

the OPD that "Defendant is Public Def. accepted" and enclosed a

copy of defendant's 5A Form. This form, which was signed and

dated by defendant on February 5, 2013, had some additional

information handwritten on it, such as defendant's middle name,

and a minor addition to her "financial status" information.

Otherwise, it was identical to the January 30, 2013 form. The

February 5, 2013 5A Form was appended to the presentence report

filed in the appeal concerning defendant's conviction and

sentence. Therefore, we assume it was also available to the

judge, the prosecutor, and defendant's trial attorney at

sentencing.

Because defendant completed her January 30, and February 5,

2013 5A Forms prior to the Supreme Court's decision in In re

Custodian of Records, supra, neither form warned her that the

15 A-4429-13T2
forms could be turned over to a grand jury or the prosecutor

during an investigation of her eligibility for OPD services.

On February 14, 2013, the trial judge sentenced defendant

to three years in prison on count one, subject to an eighty-five

percent period of parole ineligibility pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2, and three years of parole

supervision upon her release. The judge imposed a concurrent

three-year term on count two.

On February 20, 2013, the State filed a notice of appeal

challenging the sentence imposed by the trial judge. On

February 28, 2013, the OPD filed an appeal on defendant's

behalf, challenging her conviction and sentence. On March 6,

2013, our clerk's office designated defendant as the appellant

and the State as the cross-appellant for purposes of the

briefing schedule.

The assistant prosecutor, who represented the State during

defendant's trial and at sentencing, learned that the OPD was

representing defendant on appeal on March 6, 2013. According to

the prosecutor's brief, "[t]he State had always known the

defendant was not indigent[.]" Nevertheless, the prosecutor did

not immediately take any action to contest the determination

that defendant was indigent and, therefore, eligible for OPD

representation.

16 A-4429-13T2
 On May 14, 2013, the Supreme Court issued its decision in

In re Custodian of Records, supra. The prosecutor advises that

he became aware of this decision shortly after it was rendered,

but he still did not take any action to contest defendant's

indigency.

Sometime "[d]uring the underlying litigation," and the

State has not specified when this occurred, the prosecutor

obtained a court order requiring a newspaper internet website to

disclose the identity of an individual who had posted comments

"boast[ing] that the defendant's appeal would be handled by the

Public Defender." The State asserts that M.B. posted these

comments.

Over the course of the year following the filing of the

parties' appeals, the OPD worked on defendant's case. It filed

forty-seven transcripts, totaling more than 6200 pages.

Pursuant to the last of a series of scheduling orders, the OPD's

brief was due to be filed on January 24, 2014. On January 10,

2014, defendant's public defender asked for a short extension of

time to file the brief. The OPD submitted defendant's appellate

brief on March 19, 2014, together with a motion seeking

permission to file an overlength brief. We granted that motion

on April 11, 2014.

17 A-4429-13T2
 Sometime during the period between the Court's decision in

In re Custodian of Records, supra, and March 4, 2014, the same

prosecutor who had represented the State at trial, issued grand

jury subpoenas seeking defendant and her husband M.B.'s

financial records.3 Through the use of these subpoenas, the

State obtained M.B.'s savings and checking account records and

his vehicle registration records. It also obtained life

insurance information for both defendant and M.B.4

On March 4, 2014, thirteen months after the OPD assumed

defendant's representation for her appeal, the State filed5 a

motion with the Assignment Judge seeking "an Order terminating

the [OPD] from further representation of defendant . . . ." The

motion also asked that defendant be ordered to appear in court

3
The subpoenas are not part of the record on appeal and,
therefore, we do not know exactly when the State issued them.
4
In response to our request for supplemental briefs addressing
certain issues pertinent to this appeal, the State advised us
that it issued the grand jury subpoenas because it was
investigating whether defendant could be prosecuted for theft in
connection with the legal services she was receiving from the
OPD. However, at the trial level, the State told the Assignment
Judge that, because defendant had executed her 5A Form prior to
the Supreme Court's decision in In re Custodian of Records,
supra, defendant "is effectively immune from criminal
prosecution even if her [5A Form] contains fraudulent
misrepresentations."
5
The assistant prosecutor who represented the State at the
trial, and who had obtained the grand jury subpoenas, also filed
this motion on the State's behalf.

18 A-4429-13T2
to confirm that the information supplied on her 5A Form was

"true" and to be advised that "wil[l]fully false statements" on

the form could subject her to punishment.

In support of its motion, the State submitted a sealed

appendix containing the financial records it had obtained from

the grand jury. Notably, all of the bank and vehicle

registration records were solely in M.B.'s name. The State

produced no information indicating that defendant had any income

or assets, other than a life insurance policy that appeared to

have no cash value. Perhaps because of this, the State also

sought an order requiring that defendant provide the Assignment

Judge with four years of tax returns, and other financial

records relating to any stocks, bonds, or other assets defendant

might own. The State also asked the Assignment Judge to order

"defendant to produce copies of any legal document(s), executed

between 2010 and 2013, that involved, touched upon or had the

effect of altering family assets and/or property rights of

either [defendant] or [M.B.]"

The State acknowledged that defendant's name did "not

appear on any of the marital assets nor the real and personal

property belonging to the" family. Nevertheless, the State

asserted that defendant was not indigent because M.B. was

employed, had substantial funds in his savings and checking

19 A-4429-13T2
accounts, and owned the parties' house and cars. Thus, the

State argued that M.B. was required to pay for defendant's legal

representation.

As noted above, the State filed M.B.'s financial documents

in a sealed appendix. However, it did not seal its notice of

motion or its motion brief. In its motion brief, the State made

numerous references to M.B.'s financial information, including

his savings account balances at various times. The State

identified M.B.'s employer, how often he was paid, and how his

payroll checks were deposited. The State also disclosed dozens

of specific payments M.B. had made for his family's educational,

medical, and personal expenses, including the names of the

medical offices, educational facilities, and vendors receiving

these payments. The death benefit amounts of defendant's and

M.B.'s life insurance policies were also revealed. Thus, the

State made all of this sensitive information, which it had

obtained through a grand jury subpoena, available to the public.

As set forth in Rule 2:9-1(a), the trial court did not have

jurisdiction to entertain any motions in this matter because of

the pending appeal. However, the State did not file a motion

with the Appellate Division seeking a limited remand.

The OPD filed a letter brief under seal on behalf of

defendant opposing the State's request to terminate its

20 A-4429-13T2
representation of defendant on appeal. The prosecutor objected

to the OPD's "appearance . . . in adversarial opposition to the

inquiry," arguing that "the State reasonably expected the Public

Defender to take 'no position' on the merits or otherwise appear

amicus curiae."

Although the State had revealed M.B.'s personal financial

information in its motion brief, and sought his financial

records, the State did not serve M.B. with a copy of its motion

papers, and he was not made a party to the State's motion.

However, the judge asked M.B. to supply an affidavit stating

whether he was willing to contribute to defendant's legal

expenses. In making this request, the judge relied upon

N.J.S.A. 2A:158A-14e, which states that "[w]here appropriate[,]"

a defendant's need for OPD services shall be measured, in part,

on "the willingness and ability of the defendant's immediate

family, friends or employer to assist the defendant in meeting

defense costs[.]" (Emphasis added).

M.B. retained an attorney to represent him in connection

with this request. On March 25, 2014, the attorney provided

M.B.'s affidavit, in which he stated, "I am unwilling to fund

the legal representation of my wife following her conviction at

trial and sentencing by the [c]ourt."

21 A-4429-13T2
 On April 8, 2014, the judge conducted oral argument in open

court on the State's motion to prohibit the OPD from

representing defendant in the pending appeal. At the beginning

of the argument, defendant's attorney asked that the proceedings

be conducted in camera. In response, the prosecutor stated, "I

didn't think I was going to say anything that would have raised

any privacy issues[,] but I have no objection." However, the

judge responded, "At this juncture, . . . I am unsure that we

really need to ask the public to leave the courtroom. I'd like

to hear argument. If I feel that we are bordering on something

that is of a confidential nature, I will reconsider [the]

application[.]"

Contrary to his earlier statement, the prosecutor then

proceeded to highlight the specific financial information

obtained from M.B.'s bank, vehicle, and life insurance records.

In response, defendant's attorney pointed out that the State had

not "submitted anything to the court that would suggest that

[defendant] has a single asset other than what she put on her

[5A Form] in 2013 and that is what your Honor is entitled to

compare."

22 A-4429-13T2
 On April 10, 2014,6 the judge issued a written decision,

finding that she could consider M.B.'s assets in determining

whether defendant was indigent and, therefore, qualified for OPD

representation. In so ruling, the judge primarily relied upon

DuBois, Sheehan, Hamilton, and DuBois v. DeLarm, 243 N.J. Super.

175 (App. Div. 1990). In that case, we applied the common law

"doctrine of necessities" in finding that one spouse could be

held liable for the legal expenses incurred by the other spouse

in a criminal action in which the spouse was acquitted. Id. at

182. However, we specifically noted "that a distinction might

exist between cases involving convictions and [those involving]

acquittals because convictions reflect intentional wrongdoing or

culpability for which the spouse [from which payment is sought]

should not be financially responsible." Id. at 186 n.6.

Here, defendant was convicted following her trial, and M.B.

had advised the judge that he was not willing to pay her legal

expenses on appeal. Nevertheless, the judge ruled that she

could "consider [M.B.'s] assets and income in reviewing the

6
On this same date, the Office of the Attorney General advised
the Clerk of the Appellate Division that it had "superseded the
[County] Prosecutor's Office and is now representing the State
on both the appeal and defendant's cross-appeal . . . ."
Although, at our request, the Attorney General participated in
this appeal as an amicus, it did not take part in any of the
proceedings before the trial court.

23 A-4429-13T2
[d]efendant's claim for indigency." The judge found it

significant that

[d]efendant retained private counsel for all
aspects of the trial at the trial court
level, and also that [M.B.] is currently
represented by private counsel. It seems to
the [c]ourt, subsequent to a review of the
briefs and exhibits filed by both parties,
as if the [d]efendant filed for public
defender representation almost entirely out
of spite, having posted on a reputable New
Jersey news website on several occasions
taunting New Jersey taxpayers.[7] It also
appears to the [c]ourt that the [d]efendant
and her family live an upper middle to upper
class lifestyle. Certainly, this is not the
type of "needy" or "indigent" [d]efendant
that requires the assistance of the [OPD].

The judge then stated that she would conduct an in camera

plenary hearing8 "to determine the [d]efendant's indigency." The

judge ordered defendant to provide the following financial

information in advance of that hearing:

All Federal and State Tax Records filed by
[defendant, M.B.,] or filed jointly by both
parties for the years 2010-2014, [and]

7
Contrary to the judge's finding, there is no evidence that
defendant ever posted any comments to the website. The State
asserts the comments were posted by M.B.
8
The judge stated that "[d]ue to the potentially sensitive and
private nature of the evidence that will likely be submitted at
the plenary hearing, this hearing will be conducted in camera,
away from the eyes and ears of the public." As previously
noted, however, M.B.'s financial information had already been
disclosed in the State's motion brief and these details were
again discussed in open court at oral argument on the State's
motion.

24 A-4429-13T2
 Financial records relating to stocks, bonds,
mutual fund accounts, IRA accounts, trust
accounts, and life insurance held by or on
behalf of [d]efendant or naming [d]efendant
as beneficiary of the same.

The judge concluded her opinion by stating:

After an assessment of the
[d]efendant's full financial information,
provided the [c]ourt determines that the
[d]efendant is not in fact indigent, the
[c]ourt will further issue an order 1)
terminating the [OPD] from further
representation of the [d]efendant, 2)
directing the [d]efendant to retain private
counsel, and 3) directing the [d]efendant or
her husband to reimburse the [OPD] for the
costs of litigation to date.

On May 7, 2014, the judge stayed the April 10, 2014 order

at M.B.'s request so he could file a motion for leave to appeal

to this court. The State did not file any opposition to M.B.'s

motion, and we granted leave to appeal on June 2, 2014.

III.

Although the State did not oppose M.B.'s motion for leave

to appeal, it now asserts that leave to appeal was

"improvidently granted." The State argues that M.B. lacks

standing to appeal the judge's order requiring defendant to

produce his financial information. We disagree.

It is well established that "a party aggrieved by a

judgment may appeal therefrom. It is the general rule that to

be aggrieved a party must have a personal or pecuniary interest

25 A-4429-13T2
or property right adversely affected by the judgment in

question." Howard Sav. Inst. v. Peep, 34 N.J. 494, 499 (1961)

(citations omitted); see also Borough of Seaside Park v. Comm'r

of N.J. Dep't of Educ., 432 N.J. Super. 167, 199 (App. Div.

2013).

This definition squarely fits M.B. In this case, the State

divulged his personal financial information in its unsealed

brief and again in an open court proceeding. The judge ordered

defendant to turn over all of M.B.'s tax returns for a four-year

period. The judge also stated that, if she concluded that

defendant was not indigent, she would issue an order "directing

[M.B.] to reimburse the [OPD] for the costs of litigation to

date." Under these circumstances, M.B. was clearly a "party

aggrieved by a judgment" and, therefore, he had standing to file

his motion for leave to appeal.

IV.

On appeal, M.B. argues the judge erred by requiring

defendant to provide his personal financial information. He

asserts the judge's order violates his right to privacy

concerning this information, and also argues that his financial

records are protected from disclosure by his "spousal

testimonial privilege"; "marital communication privilege"; and

Fifth Amendment privilege against self-incrimination.

26 A-4429-13T2
 However, we need not address M.B.'s claims on these points

because we are constrained to vacate the judge's order for a

more fundamental reason: the trial court did not have

jurisdiction to consider the State's motion to terminate the

OPD's representation of defendant in her pending appeal.

As previously noted, Rule 2:9-1(a) clearly provides that

"the supervision and control of the proceedings on appeal . . .

shall be in the appellate court from the time the appeal is

taken . . . ." Here, the State and defendant filed their

notices of appeal in February 2013 and, at that time,

"supervision and control of the proceedings" were transferred

from the trial court to the Appellate Division.

Thus, when the State filed its motion to terminate the

OPD's services over a year later, the trial court lacked the

jurisdiction necessary to consider that motion. The facts of

this case highlight the propriety of the result compelled by

Rule 2:9-1(a). At the time the State filed its motion, the OPD

had been representing defendant for thirteen months and was

about to file its lengthy appellate brief on her behalf. Under

these circumstances, the judge's order clearly had the capacity

to interfere with the progress of the pending appeal by

diverting the OPD from the task of completing the brief in order

to address the State's motion, and by possibly requiring

27 A-4429-13T2
defendant to start her appeal all over again with a new

attorney. Simply stated, a proceeding aimed at disqualifying an

attorney from representing a party in an appeal, should be

commenced in this court not in the trial court.

As we have indicated, the State was not without a remedy to

address its claim that defendant had sufficient funds to retain

private counsel. Because "control and supervision" of the

entire matter was before the Appellate Division, the prosecutor

should have filed a motion with this court asking that the

matter be temporarily remanded to the Assignment Judge to make a

determination of defendant's indigency. That is the procedure

clearly required by Rule 2:9-1(a).

We have considered, but rejected, issuing a sua sponte

order remanding the matter to the Assignment Judge to consider

defendant's indigency while defendant's appeal is pending.

While individuals who are not truly indigent should not be

represented by the OPD, challenges to OPD representation must be

presented at the earliest possible time in order to avoid

disrupting the pending proceeding. In re Custodian of Records,

supra, 214 N.J. at 171.

Here, the State simply waited too long to challenge

defendant's indigency and to seek to remove the OPD as

defendant's attorney. The State concedes it has known that the

28 A-4429-13T2
OPD was representing defendant on appeal since March 2013. It

also asserts that it "had always known the defendant was not

indigent[.]" Yet, it waited until just before the OPD was about

to file defendant's brief in March 2014 to move to disqualify

that agency from representing defendant. By that time, the OPD

had already incurred most, if not all, of the costs necessary to

represent defendant in the appeal. With the matter now fully

briefed, and awaiting submission to this court for resolution,

we will not further disrupt the appeal.

Instead, we vacate the Assignment Judge's April 10, 2014

order requiring defendant to turn over her and M.B.'s financial

records for review. We remand this matter to the Assignment

Judge to conduct an investigation of defendant's indigency after

defendant's and the State's appeals have been fully resolved. 9

In this fashion, defendant's constitutional right to counsel on

appeal will not be infringed and the OPD's representation of her

in the long-standing appeal will not be disrupted.

At the same time, however, the public's interest in

ensuring that only truly indigent individuals receive OPD

representation will be served. As the OPD confirmed in its

amicus brief and at oral argument, it has invoked its statutory

9
The Assignment Judge may designate a different judge to handle
the proceedings on remand pursuant to N.J.S.A. 2A:158A-15.1. We
leave that determination to the sound discretion of the judge.

29 A-4429-13T2
authority under N.J.S.A. 2A:158A-17a to place "a lien on any and

all property to which the defendant shall have or acquire an

interest." Thus, should the judge determine after the pending

appeal is concluded that defendant was not indigent, she will be

required to reimburse the OPD for the costs it incurred in

representing her.

We provide the following further directions for the conduct

of the proceedings on remand. First, the Supreme Court's

decision in In re Custodian of Records clearly contemplates that

the judge will conduct a confidential investigation rather than

proceedings in open court as occurred here. Supra, 214 N.J. at

164. Thus, the judge should analyze defendant's 5A Form and any

other financial documents obtained under N.J.S.A. 2A:158A-15.1

in camera. Ibid. Should the judge determine that he or she

needs to question defendant under oath concerning the

information set forth in her 5A Form, the judge should also

conduct that proceeding in camera, with defendant having the

opportunity to have her attorney present during the questioning.

Second, in no event should the assistant prosecutor who

represented the State in defendant's trial participate in the

remand proceedings. As the Court made clear, "a separate team

of prosecutors and investigators[,] who [were] not involved with

the pending case[,]" should have been assigned to handle the

30 A-4429-13T2
State's investigation of defendant for theft or fraud in

connection with her request for OPD services and to request that

the OPD no longer be permitted to represent defendant on the

appeal of her conviction and sentence. In re Custodian of

Records, supra, 214 N.J. at 168-69. The Court specifically

found that this procedure was necessary "to guard against

improper accusations of abuse[.]" Id. at 168. Thus, while we

anticipate that the State will have no further involvement in

this case because this is not an "adversarial matter," we

reiterate that the trial prosecutor should not participate in

the proceedings on remand.

Third, consideration of defendant's indigency should be

limited in the first instance to the financial information

defendant provided in her 5A Form and whatever information the

judge may obtain concerning defendant's economic status from

public records as permitted by N.J.S.A. 2A:158A-15.1. Before

requiring defendant to provide M.B.'s financial records or

reviewing the records previously provided by the State, the

judge should give M.B. the opportunity to provide a written

submission outlining the privilege arguments he has raised on

appeal, including his contention that the State improperly

obtained his financial records through the use of grand jury

subpoenas, so that the judge may consider those issues in the

31 A-4429-13T2
investigation. Other than permitting such a written submission,

we do not anticipate the need for further "assistance of counsel

or experts" for the judge in the investigation, but nevertheless

leave such a determination to the judge's sound discretion. In

re Custodian of Records, supra, 214 N.J. at 164, 166.

Fourth, because the factual record is insufficient to

enable us to do so, we do not reach the issue of whether one

spouse may be compelled to pay for the other spouse's legal

expenses on appeal in a case where that spouse has been

convicted of a crime. However, in order to guide the remand, we

make the following observations.

Unlike the judge, we do not believe that the Legislature

intended, by enacting N.J.S.A. 2A:158A-14, to incorporate the

"common law doctrine of necessities" into the factors used to

consider whether a defendant who has been convicted of a crime

is indigent. As we specifically noted in the case primarily

relied upon by the judge, there may be a distinction "between

cases involving convictions and [those involving] acquittals

because convictions reflect intentional wrongdoing or

culpability for which the spouse should not be financially

responsible." DuBois, supra, 243 N.J. Super. at 186 n.6.

In this regard, N.J.S.A. 2A:158A-14e states that a

defendant's "[n]eed [in part] shall be measured according to

32 A-4429-13T2
. . . [w]here appropriate[,] the willingness and ability of the

defendant's immediate family, friends or employer to assist the

defendant in meeting defense costs." (Emphasis added). It is

significant that, contrary to the "common law doctrine of

necessities," which makes one spouse responsible for paying the

necessary expenses of the other, the Legislature stated that the

immediate family members' willingness and ability to assist the

defendant must be considered. Ibid.

Here, M.B. filed an affidavit that made clear he was not

willing to contribute to the expenses defendant would incur in

her appeal from her criminal conviction. Thus, should the judge

wish to consider M.B.'s financial status as part of the

investigation, the judge should first make the threshold

determination whether, based upon the clear language of N.J.S.A.

2A:158A-14e, an "unwilling spouse," perhaps concerned about the

serious nature of an offense committed by the defendant, may

nevertheless be compelled to pay the costs for the spouse's

appeal of his or her conviction for that offense.

In her written decision, the judge stated that "[i]t seems

to the [c]ourt . . . as if the [d]efendant filed for public

defender representation almost entirely out of spite, having

posted on a reputable New Jersey news website on several

occasions taunting New Jersey's taxpayers." However, as we

33 A-4429-13T2
observed above, there is nothing in the record to indicate that

defendant had anything to do with the anonymous postings.

Therefore, we do not discern any basis for the judge to consider

these postings on the remand.

The judge also stated that the "most striking" of the facts

indicating that defendant was not indigent "is that the

[d]efendant retained private counsel for all aspects of the

trial at the trial court level, and also that the [d]efendant's

husband is currently represented by private counsel." Again,

however, this fact has little, if any, relevance to the question

of whether defendant is currently indigent.

The OPD has represented that it frequently provides legal

services to individuals who, like defendant in this case, wish

to appeal a conviction following a trial in which they were

represented by private counsel. Indeed, the fact that a

defendant has exhausted his or her financial resources paying

for private representation at trial, is often a reason why the

same defendant will qualify as indigent for purposes of OPD

representation on appeal. Moreover, M.B.'s retention of an

attorney to represent him after he learned that his financial

information had been made available to the public is not a

factor to be addressed in determining defendant's indigency.

34 A-4429-13T2
 In sum, we vacate the April 10, 2014 order and remand this

matter to the Assignment Judge or her designee for a

determination of defendant's indigency after the pending

criminal appeal has been fully resolved by the Appellate

Division.10 At that time, the judge shall conduct an in camera

investigation of the issue, and follow the directives set forth

in this opinion. If the judge concludes that defendant is not

indigent, the judge shall enter an appropriate order requiring

defendant to reimburse the OPD for the costs of her

representation in the appeal.

The April 10, 2014 order is vacated, and the matter

remanded for further proceedings consistent with this opinion.

We do not retain jurisdiction.

10
Should the case thereafter be pending in the Supreme Court,
the judge should seek direction from the Court before
proceeding.

35 A-4429-13T2