June 18, 2014
Robert W. Johnson, First Assistant
Cape May County Prosecutor’s Office
4 Moore Road
Cape May Court House, NJ 08210
(via e-mail only to firstname.lastname@example.org
RE: Complaint regarding Stone Harbor Municipal Court
Dear First Assistant Johnson:
I write, both individually and in my capacity as Chairman of the New Jersey Libertarian Party’s Preempted Ordinance Repeal Project to complain that the Stone Harbor Municipal Court recently allowed a plea bargain that violated a November 18, 1998 Directive by former Attorney General Peter Verniero. A copy of that three-page Directive, accompanied by subsequent distribution memoranda, is on-line here. I bring this matter to your attention because the County Prosecutor’s office has supervisory authority over municipal prosecutions and may, in the public interest, intervene or supersede them. N.J.S.A. 2B:12-27 and 2B:25-7.
The Attorney General’s Directive, in essence, disallows a municipal court from agreeing to a plea bargain in which a defendant charged with a statutory offense pleads down to a municipal ordinance violation unless a) the municipal ordinance is clearly not preempted by state law and b) there is a factual nexus between the conduct charged and that which is proscribed by the ordinance.
At issue here is a citizen’s complaint filed against Michael A. Blanda, who is Wildwood Mayor Ernie Troiano’s son’s brother in law, for simple assault and harassment. (A copy of the complaint’s disposition in on-line here.) Given Blanda’s employment with the City of Wildwood and his relationship to Mayor Troiano, the matter was transferred to the Stone Harbor Municipal Court. On June 5, 2014, the court accepted a plea bargain under which Blanda agreed to pay a total of $533 in fines and costs and attend anger management classes. As part of the plea agreement, the assault and harassment charges were dismissed and Blanda pleaded guilty to Wildwood Code §4-2.7, which states:
Disruption of Public Peace
No individual or group of individuals shall revel, disport, or behave in a noisy, boisterous manner, emitting loud cries and other noises, jostling those about them, causing inconveniences to those about them, or otherwise disrupting or disturbing the public peace and dignity in any public or quasi-public place and public rights-of-way, or in any building open for the combination of the public for entertainment or room accommodations.
This ordinance is preempted by the New Jersey Criminal Code because it covers the same type of conduct regulated by N.J.S.A. 2C:33-2–Disorderly Conduct which states:
a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he
(1) Engages in fighting or threatening, or in violent or tumultuous behavior; or
(2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.
b. Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.
“Public” means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.
In State v. Paserchia, 356 N.J. Super. 461, 466 (App.Div.2003) the Appellate Division found that Chapter 33 of the New Jersey Criminal Code “reveals a policy to comprehensively address street behavior and other conduct in public places which may disturb citizens and disrupt peaceful society.” The Legislature, the court found, recognized the tension between controlling “street behavior” and safeguarding citizens’ free speech and assembly rights. Therefore, it decided to regulate “street behavior” so comprehensively at the state level that there was no room left for local regulation of the same conduct. For this reason, ordinances like Wildwood’s §4-2.7 cannot stand.
Moreover, it would not be proper for Wildwood to be allowed to prohibit certain types of conduct per se when the the Criminal Code requires the state to prove that the defendant acted either “recklessly” or “with purpose to cause public inconvenience.” “[T]he inconsistency between the culpability standards of N.J.S.A. 2C:33-2.1 and the . . . ordinance only underscores the point that the Code and the local ordinance deal with the same criminal conduct in a different manner, and consequently the ordinance is preempted.” State v. Felder, 329 N.J.Super. 471, 475 (App. Div. 2000).
In sum, Blanda was wrongly allowed to plead guilty to a municipal ordinance instead of having to contest the statutory charges. This plea agreement gave Blanda some significant benefits:
- Freedom from having a statutory conviction that can be detected if a future prospective employer, licensing agency or volunteer organization seeks criminal history record information (CHRI).
- Statutory disorderly and petty disorderly persons convictions cannot be expunged from a defendant’s record until at least 5 years after the conviction while municipal ordinance convictions can be expunged after 2 years. N.J.S.A. 2C:52-3 and 4.
- Avoidance of $50 Violent Crimes Compensation Board and $75 Safe Neighborhoods Services Fund assessments that those who are convicted of statutory offenses must pay.
These benefits motivate offenders such as Blanda to plead guilty and pay hundreds of dollars in fines and costs to the City. The City, of course, is happy to have this lucrative stream of revenue and the municipal prosecutors and judges are appreciative of the guilty pleas because they don’t have to conduct trials, which are sometimes time-consuming and difficult.
The loser in this cozy arrangement, however, is the integrity of the criminal justice system. This deal-making undoubtedly gives the public the perception that the Stone Harbor Municipal Court is more akin to the “Let’s Make a Deal” game show than a serious judicial entity.
The Stone Harbor Court’s acceptance of such plea bargains allow offenders to escape accountability for their actions. Had Blanda been convicted of assault or harassment offenses which which he was charged, the court would have afforded him a “presumption of non-incarceration” if he was a first offender but if it was his second, third or greater offense, he would no longer receive that presumption and would have more likely faced incarceration. N.J.S.A. 2C:44-1(e) and State v. LeSane, 227 N.J. Super. 276 (Law Div.1987). This is what the Legislature intended. First offenders should receive leniency while those who continue to commit criminal acts should receive progressively harsher punishments.
Stone Harbor’s allowance of this type of guilty plea disrupts the Legislature’s intent by preventing those who are actually guilty of statutory offenses from being identified in New Jersey’s criminal conviction database as previous statutory offenders. Given the plea bargain, if Blanda re-offends in another municipality the judge presiding over the second offense would not recognize him as repeat offenders and again assume that he shouldn’t be jailed because he is a first offender.
The Attorney General’s Directive limits municipal courts to three options when dealing with a defendant charged with a statutory disorderly persons or petty disorderly persons offense: a) try the defendant on the charge, b) dismiss the charge outright or c) downgrade the charge to lesser statutory offense or to a violation of a municipal code provision that is not superseded and for which a factual nexus exists . Pleading Blanda down to a preempted city code provision is not among the options.
Maintaining the integrity of the criminal justice system is a far more important goal than the municipal court’s administrative convenience. Accordingly, I call upon you to give effect to Attorney General Verniero’s Directive by instructing the Stone Harbor Court to cease the practice of allowing guilty pleas to superseded provisions of a municipal code.
Thank you for your attention to this matter. I look forward to hearing from you.
John Paff, Chairman
New Jersey Libertarian Party’s
Preempted Ordinance Repeal Project
P.O. Box 5424
Somerset, NJ 08875