State of New Jersey v. Neal Power

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In 2011, a contractor repaired certain floor damage in defendant’s home. At work he made his legal assistant prepare a fake (fraudulent) contractor’s invoice and send it to his homeowner’s insurance company for payment. After the investigation, authorities charged defendant in a May 2015 with two third-degree crimes, insurance fraud and attempted theft by deception, one fourth degree crime, and forgery. Defendant applied for PTI. The assistant prosecutor rejected the application for PTI. A few months later the assistant prosecutor responded to defendant’s request for reconsideration based on medical evidence about defendant’s eye and heart conditions, as well as statements given by the employee who forged the invoice. However, the assistant prosecutor denied the admission into PTI again. A grand jury charged defendant and his employee in a superseding indictment with the third-degree crimes of a conspiracy, insurance fraud, attempted theft by deception, the fourth-degree crimes of uttering a forged instrument, and forgery. The defendant’s employee got charged with false swearing as well. The defendant appealed the rejection of PTI again. While the appeal was pending both parties engaged in plea negotiations. The state ended up offering admission to PTI for 36 months if the defendant agreed to four conditions: conditionally plead guilty of two counts of the indictment; consent to disbarment in a form approved by the Office of Attorney Ethics or the Supreme Court; consent to never again hold public office; and agree that upon violation of any PTI condition, he severe ninety days in county jail. The defendant agreed to all terms except disbarment. The judge ended up being the decision maker in the one dispute of the plea agreement.

The Law Division Judge (first judge) upheld prosecutor’s decision determining the defendant had “not established by clear and convincing evidence that the State’s PTI application rejection was either a patent and gross abuse of discretion or arbitrary and irrational nor has defendant presented a compelling reasons for entry into PTI.” Defendant then filed a motion for reconsideration and the first judge denied. The defendant next filed a motion for a non-jury trial and to have the first judge recuse herself. The first judge allowed both motions.

The second judge who received the case conducted a pre-trial conference which he scheduled a trial. The second judge then asked if the parties could resolve the matter. The judge found out what was keeping the parties from settling and the judge criticized the prosecution because they would not drop the disbarment part of the plea agreement. The judge felt the prosecution did not have a right to force defendant’s disbarment. The prosecutor did not make a new plea offer and a trial date was set. Before the trial date the defendant filed a motion for reconsideration before the second judge seeking enrollment in PTI. The second judge granted the motion for PTI. The judge did not allow the prosecution to withdrawal their offer and the removed the disbarment part of the plea. The prosecution appealed the judge’s decision arguing that the second judge abused his discretion by reversing the first judge’s decision. The other two main arguments the prosecution made were: A) The second judge abused the court’s discretion by disregarding the “Law of the Case” doctrine without explaining and reversing a co-equal court’s decision on the same issue. B) The order compelling defendant’s PTI admission should be
reversed because it was not shown clearly and convincingly that the prosecutor’s refusal to consent was a patent and gross abuse of discretion.

The appellate court decided on issue:

  1. that the second judge’s reconsideration of the first judge’s decision affirming the prosecutor’s rejection of PTI. The second judge had no statutory authority to reconsider the first judge’s decision. The judge misapplied the standard of review for a trial judge’s reconsideration of previous order. The appellate court decided on issue
  2. that the second judge compounded his error he refused to permit the State to withdrawal its plea offer and directed the State to consummate the plea under the terms it had proposed, with the exception of defendant’s disbarment.

The second judge had no authority to participate in plea negotiations, and he certainly had no authority to insist the State accept a plea on his modified terms. Here, the second judge not only interfered in the plea negotiations, he directed the prosecutor to consummate the plea by preparing the appropriate documents. The second judge improperly assumed executive or prosecutorial power. The appellate court’s final decision is to vacate the orders granting reconsideration and enrolling defendant in PTI. They remand the matter for trial.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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