NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROESHA BRYANT, TERRANCE
EDWARDS and LAWRENCE CODY,
Defendants-Appellants,
and
ROBERT CARTER,
Defendant.
____________________________________________
June 9, 2016
Submitted May 16, 2016 Decided
Before Judges Messano and Gooden Brown.
On appeal for the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 15-09-1120.
Joseph E. Krakora, Public Defender, attorney for appellant Roesha Bryant (Jeffrey Farmer, Assistant Deputy Public Defender, of counsel and on the brief).
Mazraani & Liguori, L.L.P., attorneys for appellant Terrance Edwards, join in the brief of appellant Roesha Bryant.
Joseph E. Krakora, Public Defender, attorney for appellant Lawrence Cody, join in the brief of appellant Roesha Bryant.
AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
By our leave granted, co-defendants Roesha Bryant and Terrance Edwards appeal from the November 4, 2015 Law Division orders that, over their objection, transferred venue of Middlesex County Indictment No. 15-09-1120 to Union County. Co-defendant Lawrence Cody has joined in their appeal. The State does not oppose the appeal but rather has "defer[red] to the Court's discretion . . . ."
The appeal implicates Rule 3:14-2 (the Rule), which states
A motion for change of venue may be made only by a defendant. . . . Such motions shall be made to the judge assigned to try the case or to the Assignment Judge of the county in which the indictment was found . . . on notice to the other party or parties on such proofs as the court directs and shall be granted if the court finds that a fair and impartial trial cannot otherwise be had.
[Ibid. (emphasis added).]
We must also consider Administrative Office of the Courts, Judiciary Employee Policy #5-5, eff. Sept. 12, 2003, (the Policy), which provides,
The Judiciary and those within the scope of this policy have an obligation to maintain a high degree of integrity and to avoid any actual, potential or appearance of partiality or conflict of interest in the adjudication or handling of all cases. Even the appearance of a potential conflict of interest undermines the core values of the New Jersey Judiciary and hampers its mission. Accordingly, those covered by this policy must report any involvement concerning themselves, and any immediate family member's involvement known to the individual, in any criminal or quasi-criminal matter within the applicable location or jurisdiction so that, if deemed necessary, the appropriate action may be taken to avoid or minimize any such appearance.
. . . .
The Senior Manager, in consultation, as appropriate, with the Assignment Judge . . . may take appropriate action to avoid any . . . appearance of impropriety. Appropriate action includes, but is not limited to, changing the venue of the matter, if permitted,[] or otherwise insulating the individual from the matter.
[Id. at 1-2.1]
The omitted footnote in the Policy states: "There may be restrictions on involuntary change of venue which make such action inappropriate (e.g., R. 3:14-2)."
We set forth the facts and procedural history that are largely undisputed. Defendants and Robert Carter are charged with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1(a); first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and third-degree theft, N.J.S.A. 2C:20-3(a). Bryant is charged alone in count five with third-degree possession of a synthetic cannabinoid, N.J.S.A. 2C:35-5.3(c) and 2C:35-5.3(b)(11), and Carter is charged alone in count six with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1).2
At arraignment, the trial judge apparently indicated that Edwards' mother was employed in the Family Part of the vicinage, and the judge believed that venue should be transferred.3 Counsel for Bryant and Carter filed written objections, and the trial judge considered oral arguments shortly thereafter. The transcript from those proceedings fills in some, but unfortunately not all, of the background.
At oral argument, counsel for Carter explained that Edwards' mother "works in the Family Building" and would not have "any contact with this case." He objected to any transfer "without having an analysis done with regard to [her] relationship to the [c]ourt and to staff." Citing the Rule, counsel argued that since defendants did not move for the transfer of venue, and the State did not object to venue remaining in Middlesex County, the judge should not "sua sponte . . . say . . . let's move it to another county because someone is working in the Family Division." He further argued that under the Policy, an "involuntary transfer" did not "comport with the law."
Counsel for Bryant added that it was unclear whether Edwards' mother, who worked "in a whole different building across the street," had access to criminal records or court files "otherwise [un]available to the public." He suggested the judge "take other measures to ensure that [Edwards' mother is] not involved in the criminal proceedings at all."
Edwards' counsel also objected, noting there was no motion to transfer venue before the court. He further explained, "[w]e have no facts in this case," distinguishing the situation from that described in our unpublished decision, State v. DeFazio, No. A-2700-13 (App. Div. July 22, 2014), where there were certifications submitted to the trial judge before the decision to transfer was made.4 Speaking about his client's mother, counsel rhetorically asked: "what does she do? What does she have access to? . . . [C]an she influence the [] criminal proceedings? Will either party be disadvantaged?" Counsel stated that Edwards could not "even tell me what [his mother] does for the Family Court."
Edwards' counsel also claimed his client and other co-defendants would suffer prejudice from the transfer. He and one co-counsel were assigned by the regional public defender, and the other codefendants were represented by the public defender's office. He argued that a transfer of venue would "sever[]" these relationships, because the cases would be re-assigned in Union County. He further noted that defendants remained in jail because they were unable to make the bails set in the matter, and that the transfer would only cause additional delay.5 The prosecutor deferred to the judge, but requested that the judge "go through a colloquy with each defendant waiving this conflict," and that the attorneys and defendants not contact Edwards' mother.
In rendering her decision, the trial judge stated that Edwards' mother was "employed as an investigator in the Family Division" in the vicinage, but did not otherwise identify or explain her duties, nor did the judge state whether she had ever had direct contact with Edwards' mother. She considered the Rule, the Policy and our unpublished opinion in DeFazio. The judge found there was no evidence that Edwards' mother "meddle[d] in this case or exert[ed] any influence." Nevertheless, the judge reasoned
[M]any attorneys that do work in the Criminal Courts also do work in the Family Courts. I was previously assigned to the Family Court.
Certainly, participants in this trial, including attorneys, may know the defendant's mother, may have had interaction with the defendant's mother, may have had cases in which she was involved in the past. . . . I was in the Family Court for three years and had interaction with many people that work there.
. . . [H]er position, while not in the Criminal Court, gives her access to some information, if nothing else Promis/Gavel, but it's more the Court is more concerned with the potential appearance of partiality or conflict of interest in the handling of this case.
The judge provided specific examples of how public confidence in the judiciary might be affected by having venue remain in Middlesex County. In sum, the judge concluded that "in order to ensure a fair and just resolution of this case and to avoid any appearance of impropriety or . . . partiality, . . . the matter shall be transferred to another county." The trial judge transferred the matters to the Assignment Judge, who entered the orders under review for the reasons stated by the trial judge.
Although recognizing a dearth of precedent on the issue, defendants nonetheless contend that the Policy recognizes restrictions upon a judge's discretion to transfer venue, and that "defendants' failure to move for and flat out object to any change of venue[,] qualifies as such a restriction." We disagree, but nonetheless reverse and remand the matter for further proceedings consistent with this opinion.
In DeFazio, we affirmed the transfer of venue of a criminal indictment over the State's objection. DeFazio, supra, slip op. at 1. There, the judiciary employee in the vicinage was defendant's cousin, whose "duties were 'data entry into the [judiciary's] Promis Gavel computer system, witnessing criminal complaints daily, preparing certified copies, the creation and maintenance of court files on all cases, as well as[,] her primary function as [a] receptionist.'" Id. at 3. In reaching the decision, the assignment judge further determined that "'nearly everyone in whoever uses the criminal court in a professional way has some dealing with her.'" Id. at 5.
In this case, unlike DeFazio, defendants, not the State, object to the transfer of venue, and indeed, the Rule permits only a defendant to affirmatively seek a change of venue. More importantly, the record in this case fails to reveal exactly what Edwards' mother's position actually is, what her duties entail, whether she routinely has access to criminal records in the vicinage, whether she ever worked closely with the trial judge and how frequently, if at all, her duties permit or require interaction with the Criminal Division. In other words, unlike DeFazio, where our review was tethered to a complete factual record, no such record exists in this case.
We have no doubt that, pursuant to the Policy, the court is vested with the ultimate decision-making authority regarding any change in venue, and that the court's authority may be asserted even in the face of a defendant's objection. But, that authority must be exercised in service to the Policy's overriding goal, which is the avoidance of any "appearance of impropriety." Policy # 5-5, supra, at 2. Moreover, any action promoting that goal must be "necessary" and "appropriate" under the circ*mstances, and may include something less drastic than a transfer of venue, specifically, "insulating the [court employee] from the matter." Ibid.
We reverse the orders under review and remand the matter to the Law Division to conduct a more fulsome review of the circ*mstances of Edwards' mother's employment in the vicinage, and whether the particularized facts of that employment justify the transfer of venue under the Policy and the Rule. We express no particular opinion regarding the ultimate outcome following remand.
Reversed and remanded. We do not retain jurisdiction.
1 Such policies adopted by the Administrative Office of the Courts have the force of law. Schochet v. Schochet, 435 N.J. Super. 542, 545 n.3 (App. Div. 2014).
2 Although he objected to the transfer in the Law Division, Carter has not specifically joined in this appeal.
3 There is a reference in the very brief transcript to "what happened earlier," presumably with one of the co-defendants, and Bryant's counsel's "objection to the transfer."
4 Although citing an unpublished opinion is generally forbidden, see Rule 1:36-3, we do so here to provide a full understanding of the issues presented, and because the parties cited DeFazio to the trial court as persuasive authority. See, e.g., National Union Fire Ins. Co. of Pittsburgh v. Jeffers, 381 N.J. Super. 13, 18 (App. Div. 2005) ("the rule permits an unpublished opinion to be called to a trial court's attention as secondary research").
5 We take judicial notice of the court's records which indicate no action on the case has taken place since the November 2015 orders transferring venue.
