Divorce Can Divide Assets to Make a Spouse Eligible for Medicaid and Nursing Home |
Divorce can divide assets to make a spouse eligible for Medicaid and nursing home. 03-01-07 W.T. v. Division of Medical Assistance and Health Entire opinion: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0089-05T50089-05T5 Petitioner-Appellant, DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, Respondent-Respondent, and Decided March 1, 2007
On appeal from a Final Agency Decision of the Division of Medical Assistance and Health Services, HMA-877104. The opinion of the court was delivered by COLLESTER, J.A.D. This case involves the effect of an unequal distribution of marital assets between spouses under a property settlement agreement (PSA) incorporated into a judgment of divorce on an institutionalized applicant's qualification for Medicaid benefits. The appeal is taken from the final administrative decision of the New Jersey Department of Human Services Division of Medical Assistance and Health Services (DMAHS) upholding the assessment by the Ocean County Board of Social Services (OCBSS) of a penalty delaying the effective date of W.T.'s participation in the Medicaid program. The twenty-two month delay was applied because of his acceptance of an unequal division of marital assets in the PSA within three years of his Medicaid application. The facts are undisputed. W.T. and M.T. were married on June 9, 1962, and raised two children. W.T. was an accountant and the primary source of income for the family. In 1998 he was earning a salary of $85,000 as a manager for AT&T. He elected to retire at age fifty-eight by accepting an early retirement buyout package amounting to more than $450,000, much of which he invested in an IRA. In retirement he worked part-time for H&R Block during tax season while M.T., then age fifty-six, worked as a manager in the food service industry with an annual salary of approximately $35,000. At the time of divorce, both children were emancipated. M.T. and W.T. sold their home realizing a net profit of about $130,000 and planned to use the proceeds to purchase another home. On December 21, 1999, W.T. received the first of a planned series of epidural injections recommended to alleviate his chronic neck and shoulder pain. Within hours, terrible things began to happen. The following morning he was unable to walk. He was rushed to the hospital and placed in intensive care, but the paralysis spread upward. By the following day W.T. was a permanent quadriplegic, breathing only with the aid of a respirator. His prognosis was grave. After eleven weeks in the hospital, W.T. was taken to a nursing home for rehabilitation. After he was discharged in June 2000, M.T. quit her job to devote herself to his full-time care. However, within a short time he became very ill and was returned to the hospital where he remained in a coma for two weeks. After he regained consciousness, W.T. discussed with M.T. his need for constant nursing care, and they agreed to search for a suitable nursing home. Shortly thereafter, he became a resident of the Barnegat Nursing Home in Ocean County where it was clear he would reside for the rest of his life. Since W.T. accepted an early retirement buyout, he received no pension from AT&T. M.T. was sixty, unemployed, and not yet eligible for social security benefits. Aside from modest return from bank deposits, their only income was W.T.'s monthly social security payment of $1,600. M.T. and W.T. retained an attorney and filed a medical malpractice action against the surgeon, the hospital, and the anesthesiologist. They were told that it would likely be years before they received any settlement or recovery; the suit had not been resolved as of the time of this appeal. In May 2002, fifteen months after W.T. entered Barnegat Nursing Home, M.T. met with Susan Goldring, Esq., an attorney specializing in family law, estate planning, and elder law, to discuss concerns about her financial future. One of the options discussed was a divorce from bed and board, which decrees a judicial separation without severing the marital bond and affords each party the same property rights as an absolute divorce. See L.M. v. Div. of Med. Assistance and Health Servs., 140 N.J. 480 (1995); Weinkrantz v. Weinkrantz, 129 N.J. Super. 28, 32-33 (App. Div. 1974); Loechner v. Loechner, 119 N.J. Super. 444 (Ch. Div. 1972); 1 Gary N. Skoloff & Lawrence J. Cutler, New Jersey Family Law Practice, §2.6 (12th ed. 2006). M.T. selected this option which accommodated her beliefs as a Catholic. Ms. Goldring told M.T. that W.T. should have independent counsel, and she followed up with a letter to W.T. making that suggestion. After W.T. retained his own attorney, the parties and their attorneys met three or four times at the Barnegat Nursing Home to draft terms for a PSA. Ms. Goldring's position on behalf of M.T. was that in a marriage of this length where W.T. was the primary income earner, M.T. would be entitled to alimony and at least an equal division of marital property. In lieu of alimony, she sought an additional amount of joint assets sufficient to carry M.T. through the time before she received social security benefits and to provide a source of support to meet some of her needs over her twenty to twenty-five year life expectancy. In contrast, W.T.'s needs were tied to his nursing home care, and his life expectancy was severely limited and incalculable due to his respiratory dependence and grave condition. Moreover, Ms. Goldring noted there were different tax consequences on distributions from the marital estate. W.T.'s medical and nursing home expenses would far exceed any drawdown from assets so that any distribution he received would be tax-free. On the other hand, any share received by M.T. would suffer a tax reduction of seventeen percent. The PSA was prepared by W.T.'s attorney and signed by M.T. and W.T. on November 4, 2002, the same day as their divorce hearing. The PSA stated that each party waived alimony and set forth a plan of equitable distribution with the following stated purpose: The said plan is to provide the Wife with sufficient income, which together with Social Security benefits she will receive when she attains the age necessary to qualify for same, will permit her to support herself and compensate for the loss of the Husband's income and not jeopardize the Husband's eligibility for Medicaid benefits. The marital assets from investment accounts, IRA accounts, and bank accounts totaled about $686,000, much of which was in W.T.'s IRA account. The PSA equitable distribution plan provided for M.T. to receive assets valued at approximately $436,000, amounting to sixty-three percent of the marital estate, with W.T. to receive the remainder of about $250,000. Any recovery from the malpractice case was to be equally divided. At the hearing, M.T. testified as to the cause of action, which was eighteen months separation or "no fault," and to her acceptance of the agreement. While W.T. was not present in court, the judge accepted the representations made by W.T.'s attorney that W.T. understood the terms of the PSA and accepted them as fair and reasonable. The trial judge granted the relief sought by M.T. and directed that the PSA be incorporated into the judgment. The signed judgment specified that the court made no independent findings as to the terms of the PSA. Sixteen months later, on March 23, 2004, the petition for Medicaid benefits was filed. The $250,000 W.T. received in equitable distribution under the PSA had been reduced by payments for nursing home care, creation of a special needs trust, and gifts to W.T.'s daughter. The OCBSS reviewed his application and found that W.T. was then eligible for Medicaid benefits. However, the OCBSS imposed a transfer penalty under N.J.A.C. 10:71-4.10(b), finding that distribution of marital assets to M.T. under the PSA constituted an impermissible transfer for less than full value within the three-year "look back period." See N.J.A.C. 10:71-4.10(a); N.J.A.C. 10:71-4.10(b)(9). The penalty postponed W.T.'s eligibility from March 2004, when the application was filed, until September 2004. See N.J.A.C. 10:71-4.10(b). The administrative appeal was filed as to the penalty imposed respecting assets transferred to W.T. through equitable distribution. A hearing was granted. W.T. died on January 4, 2005, but the hearing proceeded before an administrative law judge (ALJ) in May 2005. M.T. and her attorney, Susan Goldring, both testified that the PSA distribution to M.T. of more than fifty percent of the marital estate was not intended to rid W.T. of assets to assist for Medicaid qualification, but to preserve assets that were necessary for her support. Under questioning by the ALJ, Ms. Goldring explained: We factored [the tax consequences to M.T. and W.T.] in and came up with the uneven split that we did that we felt would provide her with sufficient money to at least carry her for two years and at that point again we thought she would be able to get Social Security, and we hoped that the malpractice action would be resolved, and there would be money coming in from that. * * * I feel very confident that had we spent the money going to a trial that I could easily have gotten a disproportionate distribution. Whether it would have been exactly the same as we did it, or whether it would have been something different, that I cannot say. ALJ: Is that considering his circumstances of being in a nursing home, or is this considering his - is that assuming he was not in a nursing home? THE WITNESS: No, it would be considering that he is in a nursing home, and that his situation is fixed and not going to change at all, whereas hers is not fixed, and under normal circumstances, I didn't look it up, but I think at sixty she probably had a twenty-five-year life expectancy easily, and was going to have to have the funds one way or another to live out that life expectancy without any help from him, because it was clear that his money was going to be used up in the nursing home. * * * ALJ: . . . [M]y question really is though, in the negotiations, in other words, all his assets weren't taken away and everything sheltered from Medicaid, it was just Medicaid and medical needs were given consideration, and he was allocated $250,000 at least for purposes in this property settlement agreement. THE WITNESS: Correct. And given - under the totality of the circumstances, nobody has a crystal ball, but clearly under his circumstances we were - at the point that we were doing this he was trach dependent, respirator dependent, and having all sorts of other problems. We had no idea how long he was going to live, but I don't think anyone anticipated anything like a normal life expectancy. ALJ: . . . [A]s an added amount available to him would be the med malpractice case. THE WITNESS: Correct. Nancy Faulkner, a Human Services Specialist with OCBSS, testified at the hearing that the transfer penalty was imposed on the PSA division because of the policy of DMAHS that any distribution of marital assets to a petitioner's spouse of more than fifty percent constituted a transfer for less than fair value. If made during the look back period, the transfer would trigger the penalty, regardless of whether a judgment of divorce incorporated an agreement to that effect. Ms. Faulkner acknowledged that the policy was not codified or contained in any regulation or written policy statement but was an oral policy reflected in minutes of a DMAHS staff meeting. The ALJ issued his written decision on May 17, 2005. He accepted as credible the testimony of M.T. and Ms. Goldring that the rationale of the PSA division of assets through equitable distribution was independent of Medicaid eligibility requirements. Rather, the division was intended to reflect the fact that more assets would be needed by M.T. to derive net cash flow to form a sufficient amount to meet her future needs over her greater life expectancy and compensate for the federal tax of fifteen percent and the state tax of two percent which would be imposed on her when assets were drawn from W.T.'s IRA. Commenting on the explanation given by Ms. Faulkner for OCBSS's decision imposing a transfer penalty on the amount of equitable distribution to M.T. in excess of fifty percent, the ALJ wrote: According to [Ms. Faulkner], Medicaid recognizes matrimonial property settlements arrived at during a divorce. However, the [DMAHS] policy is that any distribution which exceeds a 50-50 distribution, is as a matter of fact a transfer for less than fair value. In essence, the [DMAHS] presumed all property settlements that exceed a 50-50 split are made for less than fair value. And, if the property distribution is considered to be for less than fair value, it is subject to the penalty period if the transfer occurred within the 36 month look back period. Notably, this is not codified in any regulation or written policy. Rather it emanates from office discussions, meetings and work sessions. It is only a document in interoffice work session minutes, according to the witness. * * * Here the matrimonial statute clearly speaks to the issue presented. N.J.S.A. 2A:34-23.1. Moreover, petitioner relied upon and followed the matrimonial statute. If the statute speaks clearly "to the precise question at issue," the courts "must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, 104 S. Ct. 2778, 81 L. Ed 2d (1984). On the contrary, the Medicaid regulations are silent in terms of ownership and how to calculate the fair value of assets distributed in a matrimonial settlement. The methodology employed by petitioner to arrive at the allocation of assets is embodied in N.J.S.A. 2A:34-23.1. There is no comparable Medicaid-equitable distribution regulation that holds an asset allocation exceeding a 50-50 is a transfer without fair value. The [DMAHS] policy directly conflicts with N.J.S.A. 2A:34-23.1. Furthermore, there were no reliable or quantitative proofs offered by the [DMAHS] refuting the methodology used by petitioner, notwithstanding the absence of a regulation or statute. There was no analysis of tax consequences, valuation of the marital services or relationship, personal needs or longevity conducted by the [DMAHS] in the absence of a regulation or statute. The unwritten 50-50 rule is a bare, unsupported theory at best. * * * [DMAHS] is clearly adopting a new, unwritten rule or policy and imposing it upon petitioner. This rule has broad implications, conflicts with matrimonial statutes, conflicts with a published State Supreme Court decision [L.M. v. Div. of Med. Assistance and Health Servs., 140 N.J. 480 (1995)]. Consequently the unwritten policy is deserving of rule making process . . . . [P]etitioner is entitled to a fair and reasonable benefit of the published law for which notice has been given. In re Keri, 181 N.J. 50, 69 (2004) (holding that Medicaid planning completed within the law is permissible). Petitioner must not be held to the standards of in-house agency policies. [Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313 (1984).] Thus, the agency action decision was not grounded upon settled legal principles. * * * Based upon the facts, testimony and evidence presented at the hearing, I conclude and order that petitioner's Medicaid eligibility shall be calculated based upon the asset ownership set forth in the property settlement, less monies spent subsequent to that date. I further conclude that the asset allocation arrived at by the petitioner and approved by the Superior Court was reasonable and consistent with the provisions contained in N.J.S.A. 2A:34-3. Therefore, the asset allocation contained in the property settlement agreement represents a distribution of assets for fair value. The action and decision by respondents is reversed. The OCBSS filed exceptions and appealed. The DMAHS Director reversed, upholding the transfer penalty calculated by OCBSS. The Director found that the petitioner did not rebut the presumption of N.J.A.C. 10:71-4.7(i) that the transfer of more than fifty percent of the marital estate was a transfer "for less than fair value in order to qualify for Medicaid." This appeal followed. We begin our analysis of the Director's decision mindful of our limited scope of review from the final determination of a State administrative agency. As summarized by the Supreme Court, Though sometimes subsumed in the search for arbitrary or unreasonable agency action, the judicial role is restricted to three inquiries: (1) whether the agency action violates the enabling act's express or implied legislative policies; (2) whether there is substantial evidence in the record to support the findings upon which the agency based application of legislative policies; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors. [Pub. Serv. Elec. & Gas Co. v. NJ Dep't of Envtl. Prot., 101 N.J. 95, 103 (N.J. 1985) (citations omitted).] An agency's interpretation of the operative law and its own rules and regulations is entitled to prevail as long as it is not "plainly unreasonable." Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 327 (1984). However, when an agency's decision is plainly mistaken, in the interest of justice we will decline deference to its decision. P.F. v. N.J. Div. of Developmental Disabilities, 139 N.J. 522, 530 (1995); see also Micheletti v. State Health Benefits Comm'n, 389 N.J. Super. 510 (App. Div. 2007). Medicaid was enacted in 1965 as Title XIX of the Social Security Act, and is a joint federal and state program to provide a safety net for payment of medical bills for low-income individuals who are elderly, blind or disabled. See Atkins v. Rivera, 477 U.S. 154, 156, 106 S. Ct. 2456, 2458, 91 L. Ed.2d 131, 137 (1986). Medicaid is the only government program for payment of long-term nursing home care. To participate, a state must operate in compliance with federal statutes and regulations. United Hosps. Med. Ctr. v. State, 349 N.J. Super. 1, 4 (App. Div. 2002)(citing Harris v. McRae, 448 U.S. 297, 301, 100 S. Ct. 2671, 2680, 65 L. Ed.2d 784, 794 (1980)). It must also adopt "'reasonable standards . . . for determining eligibility for . . . medical assistance [that is] consistent with the objectives' of [the Medicaid program]" [and] "provide for taking into account only such income and resources as are . . . available to the applicant . . . ." Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 166 (1998) (quoting L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 484 (1995)); 42 U.S.C.A. § 1396a(a)(17)(A)-(B). DMAHS is the agency charged with responsibility for the administration of the Medicaid program within this State. Such administration includes the promulgation and adoption of regulations governing qualification for Medicaid benefits, as well as serving as gatekeeper to prevent individuals from using Medicaid to avoid payment of their fair share for long-term care. N.J.S.A. 30:4D-1 to -19.1. See Estate of F.K. v. Div. of Med. Assistance & Health Servs., 374 N.J. Super. 126, 134 (App. Div.), certif. denied, 184 N.J. 209 (2005). In this case, W.T. sought Medicaid benefits as a "medically needy" person whose income and resources were insufficient to finance the cost of necessary medical care. See Mistrick, supra, 154 N.J. at 166-67. In this State, eligibility for Medicaid requires that an applicant not have resources of more than $2,000. N.J.A.C. 10:71-4.5(c). Such resources include "any real or personal property which is owned by the applicant . . . and which can be converted to cash to be used for his/her support and maintenance." N.J.A.C. 10:71-4.1(b). At the time of W.T.'s application, Medicaid requirements mandated a transfer penalty for transfer of resources for less than fair market value during a thirty-six month look back period. U.S.C.A. § 1396p(c)(1); N.J.S.A. 30:4D-3i(15)(b); N.J.A.C. 10:71-4.10. The transfer penalty is calculated by dividing the uncompensated portion of the transferred resource by the monthly average cost of nursing home care in this State. N.J.A.C. 10:71-4.7(b)(4), 10:71-4.10(c). Transfers of resources within the stated time frame are presumed to be improperly motivated to obtain Medicaid eligibility, a presumption which can be rebutted by proofs "that the assets were transferred exclusively (that is, solely) for some other purpose" than Medicaid qualifications. N.J.A.C. 10:71-4.10(j). Nonetheless, middle-class citizens facing financial ruin because of astronomically costly and necessary medical treatment are permitted to shed assets to the point of poverty to meet the "truly needy" prerequisite for Medicaid assistance. While our State has adopted the medically needy nursing home program to shield some of the institutionalized spouse's income as an allowance to the "community spouse," that amount is often insufficient, giving rise to further Medicaid planning. See H.K. v. Dep't of Human Servs., 184 N.J. 367, 379 (2005) ("Timely transfer of property, even if done to achieve eligibility status, is permissible"); In re Keri, 181 N.J. 50, 62 (2004); In the Matter of Manuel L. Labis, 314 N.J. Super. 140 (App. Div. 1998). Various planning methods have been employed to qualify for Medicaid assistance. See, e.g., Jo-Anne Herina Jeffreys, Medicaid Planning for Married Couples, 17 Nat'l Acad. of Elder L. Att'ys, 3 (2004). A choice often made by elderly married couples is divorce, accompanied by a transfer of marital assets to the non-institutionalized spouse. The sad consequences of ending a long-term marriage for reasons of Medicaid have been noted by our Supreme Court, which has expressed concern about Medicaid policies "that are so restrictive that they encourage married couples, like L.M. and his wife . . . to sever the bonds of a fifty-three-year-old marriage that they would otherwise preserve at all costs." L.M., supra, 140 N.J. at 500. See also, Michael Farley, When "I Do" Becomes "I Don't": Eliminating the Divorce Loophole to Medicaid Eligibility, 9 Elder L.J. 27 (2001). As stated in In the Matter of Shah, 694 N.Y.S.2d 82 (App. Div. 1999), [N]o agency of the government has any right to complain about the fact that middle class people confronted with desperate circumstances choose voluntarily to inflict poverty upon themselves when it is the government itself which has established the rule that poverty is a prerequisite to the receipt of government assistance in the defraying of the costs of ruinously expensive, but absolutely essential, medical treatment. [Id. at 87.] In reviewing determinations of Medicaid eligibility based on an applicant's resources in the context of divorce, our courts have drawn a distinction between assignment of income and transfer of assets pursuant to equitable distribution. In Estate of G.E. v. Div. of Med. Assistance & Health Servs., 271 N.J. Super. 229 (App. Div. 1994), we affirmed the decision of the DMAHS that assignment of a portion of the petitioner's monthly income benefits through a Qualified Domestic Relations Order did not exclude the amount from calculation of an applicant's available income. Similarly, in H.K. v. Div. of Med. Assistance & Health Servs., 379 N.J. Super. 321 (App. Div.), certif. denied, 185 N.J. 393 (2005), we held that a consent order in a bed and board divorce for payment of support from an institutionalized spouse's pension could not increase the permissible spousal allowance under N.J.S.A. 10:71-5.7(c). We further held that the "court order" exception of N.J.A.C. 10:71-5.7(f) is not applicable to an uncontested divorce proceeding when the judge incorporates a PSA in the judgment but without specific findings as to its terms. Id. at 329-30. However, in L.M., supra, 140 N.J. 480, the Supreme Court made a clear distinction between assignment of income and a change in ownership of assets resulting from equitable distribution. In that case the PSA provided that the wife received upon divorce her husband's pension interest as an asset transferred through equitable distribution. The Court rejected the position of the DMAHS that there was no valid distinction between assignment of income and change in asset ownership of a pension. The Court grounded its decision on the primacy of New Jersey matrimonial law, inclusive of assignment or transfer of asset ownership by equitable distribution. The Court stated: Despite the deference we generally accord to an agency's interpretation of the operative law, the decision of the Director of DHS-DMAHS to attribute the pension income to L.M. after the pension was equitably distributed to his wife cannot stand. The decision is inconsistent with New Jersey's law of equitable distribution. * * * New Jersey's rule that treats pension benefits as an asset appropriate for equitable distribution during divorce proceedings cannot plausibly be regarded as inconsistent with federal Medicaid-eligibility standards: the principal application of our rule focuses on the fair division of pension assets between divorcing parties, and only incidentally affects Medicaid eligibility. Although the rule's collateral impact on Medicaid may justify regulatory action . . . its predominate relationship to equitable distribution of marital assets demonstrates that the rule cannot fairly be regarded as one that frustrates the objectives of the Medicaid program. [L.M., supra, 140 N.J. at 498-99.] In L.M., the Supreme Court recognized that its decision carried the risk of abuse through the dissolution of long-term marriages by collusive actions for divorce in order to evade Medicaid restrictions, thereby adding to the costs of relief for the truly needy. [W]e note the Attorney General's concern that a disposition of this appeal in a manner favorable to L.M. might encourage persons to divorce to protect assets for the spouse of the nursing-home resident. That incentive, the Attorney General points out, might persist even if the Governor's proposal to cover nursing-home services through the medically needy program becomes law because persons could seek to transfer assets such as pensions through equitable distribution instead of spending down their income on their care. That would unfairly place a further burden on the limited financial resources of the State. [Id. at 500.] Accordingly, the Court recommended that the Department of Health [I]mplement policies to prevent persons from evading the rules of the Medicaid system to avoid paying their appropriate share for long-term care. Either the Secretary or DHS-DMAHS might further that objective by considering adoption of a regulation that addresses the effect on available income of the transfer of pension benefits by equitable distribution primarily for the purpose of achieving Medicaid eligibility. [Ibid.] Ten years after L.M., we added our own suggestion that because of the importance of clear guidelines to assist families in Medicaid planning, regulations should be adopted "to address an appropriate balance between legitimate provisions for divisions of property and income in cases of divorce, and protection of the intended purpose of the medically needy nursing home program." H.K. v. Div. of Med. Assistance & Health Servs., supra, 379 N.J. Super. at 331. Unfortunately, no such regulations have been adopted. However, it appears from this record that there is an uncodified, unpromulgated, and unannounced in-house rule or policy that matrimonial settlements or divorce judgments providing equitable distribution of less than fifty percent of marital assets to an incapacitated spouse require a penalty for an impermissible transfer when made within the look back period. We agree with the ALJ that any such in-house rule or policy violates the Administrative Procedure Act as administrative rule-making pursuant to N.J.S.A. 52:14B-23. See Metromedia, Inc., supra, 97 N.J. at 331-32. Moreover, this policy conflicts with New Jersey matrimonial law, which rejects the mechanical procedure of a fifty/fifty division of marital assets adopted in community property states, in favor of the division of marital property based on application of equitable principles to the concept of marriage as a partnership, and giving recognition to the economic and non-economic contributions of each party. Painter v. Painter, 65 N.J. 196, 211-13 (1974); Chalmers v. Chalmers, 65 N.J. 186, 194 (1974). Indeed, an automatic fifty/fifty distribution of assets was disapproved by our Supreme Court. Rothman v. Rothman, 65 N.J. 219, 232, n.6 (1974); see also Stout v. Stout, 155 N.J. Super. 196, 205 (App. Div. 1977); Skoloff and Cutler, supra, § 6.1B. Therefore, any policy or in-house rule of DMAHS imposing a penalty for a transfer of assets as equitable distribution of more than fifty percent to the non-institutionalized spouse is contrary both to New Jersey public policy and statutory law which have primacy. L.M., supra, 140 N.J. at 498; N.J.S.A. 2A:34-3. See Mansell v. Mansell, 490 U.S. 581, 587, 109 S. Ct. 2023, 2028, 104 L. Ed.2d 675, 684 (1989); Washington Dep't of Soc. and Health Servs. v. Bowen, 815 F.2d 549, 556 (9th Cir. 1987)("The Medicaid statute does not expressly provide for the preemption of State family property law."); Purser v. Rahm, 104 Wash.2d 159, 169 (1985), cert. dismissed, 478 U.S. 1029, 107 S. Ct. 8, 92 L. Ed.2d 763 (1986)("Nothing in the Medicaid statute or regulations establishes federal criteria for determining ownership of income."). While not disavowing any policy of imposing a transfer penalty for unequal equitable distribution to the non-institutionalized spouse, the DMAHS Director disclaimed reliance upon any in-house rule or policy in reversing the decision of the ALJ. She wrote: [T]he property settlement makes it clear that W.T. and his wife intend to have Medicaid pay for his care. This is not an "in house" agency policy. A transfer penalty based on Petitioner's acquiescing to the property agreement which was explicit in its plan to qualify him for Medicaid is supported by regulation. N.J.A.C. 10:71-4.10(b). While Medicaid planning is permissible, applicants must still face the penalties associated with such planning. The Director relied upon our decision in H.K., supra, 379 N.J. Super. 321. However, as we have noted, H.K. held that a consent order assigning pension benefits as alimony could not reduce an applicant's income to qualify for Medicaid; it did not address the voluntary transfer of ownership of marital property which was considered a proper means of Medicaid planning in L.M., supra. The Director also stated: Furthermore, the New Jersey courts have opined that a property "agreement which would leave a spouse a public charge or close to it, or which would provide a standard of living far below that which was enjoyed both before and during the marriage would probably not be enforced by any court. See e.g., Newman v. Newman, 653 P.2d 728 (Colo. Sup. Ct. 1982)." Marschall v. Marschall, 195 N.J. Super. 16, 30-31 (Ch. Div. 1984). See also DeLorean v. DeLorean, 511 A.2d 1257, 1260 (1986)("So long as a spouse is not left destitute or as a public charge the parties can agree to divide marital assets in any manner they wish"). Courts in other states have directly addressed the issue of using a divorce proceeding to accelerate Medicaid and have held that relieving one spouse from responsibility for spousal maintenance in order to force the other spouse into poverty and shift the responsibility to Medicaid violates public policy in general and the underlying policy of the Medicaid Act. See Lowes v. Lowes, 650 N.E.2d 1171 (1995)("A former spouse should not be relieved entirely of his maintenance obligation only to qualify the disabled spouse for Medicaid, any more than a noncustodial parent should be relieved of his child support obligations to qualify the custodial parent for Aid to Families with Dependent Children") and Eichenholz v. Eichenholz, 407 N.W.2d 699 (1987). However, in this case the PSA did not force W.T. into poverty or leave him a public charge. He received $250,000 or near forty percent of the marital estate. Accordingly, the cases relied upon by the Director are not pertinent or are actually contrary to the Director's position. In Lowes v. Lowes, 650 N.E.2d 1171, 1176 (Ind. Ct. App. 1995) a former wife suffering from multiple sclerosis successfully resisted her ex-husband's application to terminate support and impoverish her so that she could become Medicaid eligible. Similarly, in Eichenholz v. Eichenholz, 407 N.W.2d 699, 702 (Minn. App. 1987), a former husband's application for a support decrease to qualify him for public assistance was denied. In Delorean v. Delorean, 211 N.J. Super. 432 (Ch. Div. 1986) the holding was that since the wife was not left destitute, the antenuptial agreement was not unconscionable and was enforceable. Id. at 437. Accord, Marschall v. Marschall, 195 N.J. Super. 16, 30-31 (Ch. Div. 1984)(dicta). As the result of a tragedy, it was accepted by all that whatever remained of W.T.'s life would be spent at the Barnegat Nursing Home, with his standard of living remaining consistent. With a much longer life expectancy before her and an inability to produce additional income (due to her age), M.T. faced a much greater diminution of her living standard without significant asset distribution of the marital assets as an income source. In light of the circumstances, the different tax consequences from the IRA distribution, and an application of the factors set forth in N.J.S.A. 2A:34-23.1, the PSA executed by the parties cannot be held unconscionable. Indeed, a judgment of divorce setting forth this plan of equitable distribution would be upheld as a proper exercise of discretion. See State v. Smith, 72 N.J. 350, 360 (1977)(". . . trial judges should have the utmost leeway and flexibility in determining what is just and equitable in making allocations of marital assets. . . ."); Rolnick v. Rolnick, 262 N.J. Super. 343, 355 (App. Div. 1993). We disagree with the Director's conclusion that "the property settlement makes it clear that W.T. and his wife intend to have Medicaid pay for his care." The PSA clearly states that it is intended to provide M.T. with sufficient income, supplemented by social security benefits when available to her, to enable her "to support herself and compensate for the loss of the Husband's income and not jeopardize the Husband's eligibility for Medicaid benefits" (emphasis added). The provision does not manifest an intent to strip W.T. of assets to attain Medicaid eligibility, but rather an intent to provide sufficiently for M.T. while leaving W.T. with assets of $250,000 to pay his necessary expenses over some or much of his limited lifespan and thereby avoid Medicaid disqualification. That is, the PSA transfer of assets by equitable distribution has as its purpose something other than Medicaid benefits for W.T., and therefore meets the requirement of N.J.A.C. 10:71-4.10(f). Furthermore, the Director's conclusion that the intent of W.T. and M.T. was to circumvent Medicaid regulations is contrary to the determination of the ALJ based on his evaluation of the credibility of both M.T. and attorney Goldring. Generally, it is not for a reviewing court or an agency head to reject a determination based on credibility when it was the ALJ who heard the testimony and was in the proper position to judge credibility. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). What was found credible by the ALJ was the testimony of the petitioner's witnesses that the intent of the PSA was not to circumvent Medicaid law and regulations, but to serve the independent purpose of a fair and equal distribution of marital assets in accordance with the matrimonial laws of this State. We therefore conclude that the decision and resultant order of the DMAHS Director was arbitrary and without basis in law and therefore requires reversal. We add only what we previously suggested in H.K., supra, 379 N.J. Super. at 330-31, that regulations be adopted in accordance with the APA, to give clear guidelines to families who may engage in Medicaid planning both as to what is a proper division of assets in the event of divorce (consistent with the protection of the Medicaid program and New Jersey matrimonial law) and as to what constitutes a collusive transfer, subjecting the applicant to penalty. Reversed. The twenty-two month penalty was based on calculation of the difference in the asset division of $71,709.24 as well as an additional $79,807 for incremental gifts subsequently made by W.T. to his daughter. No appeal is taken from the amount gifted by W.T. and our decision is restricted to the issue of the effect of the PSA on W.T.'s Medicaid application. On February 8, 2006, President Bush signed the federal Deficit Reduction Act of 2005, Pub. L. No. 109-171, 109 Stat. 1932 (2006), which extended the look back period to sixty months for transfers after the date of enactment. |
Wednesday, June 8, 2011
Divorce Can Divide Assets to Make a Spouse Eligible for Medicaid and Nursing Home-New articles, ABA newsletters and Community events
Distribution of Plan Assets to the Participant -New articles, ABA newsletters and Community events
Distribution of Plan Assets to the Participant |
As noted above, P usually should not withdraw Plan assets before reaching 59 1/2 to avoid the 10% penalty tax, and must take required minimum distributions after reaching the RBD to avoid the 50% tax (these required distributions provide a floor, not a ceiling; P is always free to withdraw more than the minimum amount). The required minimum distribution is determined actuarially; basically, P divides the amount of assets held in the Plan in any given year by his or her remaining life expectancy. P must elect either to use a fixed life expectancy or to recalculate it each year. By recalculating, P obtains greater deferral during his or her life, but may adversely affect beneficiaries deferral after Ps death (discussed below). If P does not make an affirmative election, P will be deemed to have irrevocably elected to recalculate. P also may have the option of using the joint lives of P and the beneficiary named in the Plan beneficiary designation, which reduces the required minimum distribution each year because the life expectancy is longer. However, P can only use joint life expectancy if P has a "designated beneficiary" (DB). Designated beneficiary is a tax term of art; it means the beneficiary named on the beneficiary designation form on the earlier of Ps death or RBD, but only if that beneficiary is an individual. In other words, P can have an actual beneficiary, but not a DB, if P names a charity or Ps estate. A trust must qualify as a DB, but only if it is drafted to meet certain tax requirements. If P has named several beneficiaries, each must be an individual (or qualifying trust) for P to have a DB. If several beneficiaries are named, the oldest beneficiarys life expectancy is used. Finally, if P names an individual other than Ps spouse, that individual will be deemed to be no more than 10 years younger than P for purposes of determining Ps minimum required distributions. Once P has reached the RBD and a DB has been determined, P cannot later change to a younger DB in order to increase the amount of deferral. However, if P later changes to an older beneficiary, or to a non-individual, that new beneficiarys life expectancy will be used and the amount of deferral decreases. In other words, P cannot help, but can only hurt, himself or herself by changing beneficiaries after the RBD. |
Friday, May 27, 2011
Distribution of Plan Assets After the Participants Death-New articles, ABA newsletters and Community Events
Distribution of Plan Assets After the Participants Death |
On Ps death, Plan assets are distributed to Ps beneficiaries in accordance with rules that change, depending upon the beneficiaries identities and the date of Ps death. First if the beneficiary is Ps spouse, the spouse can always roll over the Plan assets into a new IRA, giving the spouse the ability to use his or her own life expectancy and name a new DB, achieving even greater deferral. This ability to roll over Plan assets is limited to Ps spouse, and only if the beneficiary is the spouse individually, not a trust for his or her benefit. Although the spouse has other options, rolling over Plan assets will almost always be the best choice. Second, if the beneficiary is not Ps spouse and if P dies before the RBD, there are two options. If the beneficiary is a DB, then the beneficiary can withdraw Plan assets over his or her life expectancy. If the beneficiary is not a DB, then the beneficiary must withdraw all Plan assets (and pay income taxes on the withdrawal) within 5 years of Ps death. Note that the 5-year rule also applies if the DB fails to make his or her first required distribution by December 31 of the year after the year in which P dies. Third, if the beneficiary is not Ps spouse and if P dies after the RBD, the beneficiary must withdraw Plan assets "at least as rapidly" as P did. As you might expect given these horribly complicated rules, "at least as rapidly" does not actually mean at least as rapidly, but rather using the same method, as P did. This can have adverse consequences for Ps beneficiaries. For example, assume that P never filled out a beneficiary designation, or named her estate as her beneficiary, on the RBD. Assume further that she never elected otherwise, so the IRS deemed her to be making minimum distributions using the recalculation method. Finally, assume that her will directs that Ps two daughters are entitled to all the property of her estate. Under this example, P has no DB, so only Ps life expectancy can be used. On Ps death, her withdrawal method must be used by her estate and subsequently by her daughters. Because Ps recalculated life expectancy after her death is zero, all of the Plan assets must be withdrawn by December 31 of the year after the year in which P died, and income tax at ordinary rates must be paid on the entire amount. All future deferral is lost. By contrast, had P named her daughters individually (or qualifying trusts for their benefit), the daughters could have withdrawn Plan assets over the oldest daughters life expectancy. |
Monday, May 16, 2011
Discovery and Obtaining Police Reports in Criminal Cases - New articles, ABA newsletters and Community Events
Discovery and Obtaining Police Reports in Criminal Cases |
Under the New Jersey Court Rules, a New Jersey Attorney can obtain discovery and police reports from the Prosecutor. We can appear in court for you on most Central New Jersey criminal and traffic violations. The law entitles criminal and drunk driving defendants to pre trial discovery. R.3:13 3; R.7:4 2(h); State v. Young, 242 N.J. Super. 467, 470 (App. Div. 1990); State v. Ford, 240 N.J. Super. 44, 48 (App. Div. 1990); State v. Utsch, 184 N.J. Super. 575, 579 (App. Div. 1982). Due process requires the State disclose evidence that is material to either guilt or punishment; indeed, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise reasonable doubt about a defendant's guilt. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United States v. Agurs, 427 U.S. 97, 98 S.Ct. 2392, 49 L.Ed. 2d 342 (1976). A wide variety of materials in the State's possession could constitute exculpatory information to which a defendant is entitled. Ford, supra at 52 A demand for discovery has been served upon the prosecutor who has the responsibility to answer. State v. Tull, 234 N.J. Super. 486, 494 (Law Div. 1989). A defendant's right to discovery is not dependent upon an appraisal of the beneficial value of the material sought to be discovered. State v. Polito, 116 N.J. Super. 552 (App. Div. 1977), Ford, supra at 51). Thus, a prosecutor is expected to act reasonably when responding to a discovery demand. Tull, supra at 496. The prosecutor may not refuse a discovery demand simply because the information or materials sought are not in the municipal offices or within easy reach. Id. at 495. The municipal prosecutor cannot refuse production on the ground that the requested information is not known by the prosecutor personally to be in existence when its existence is either common knowledge of the police department or when the knowledge could be obtained by reasonable inquiry. Id. at 500. The municipal prosecutor must either object to what the prosecutor perceives to be irrelevant discovery requests, or respond within 10 days of the receipt of the defendant's request for discovery. Ford supra at 51; see Tull, supra at 500. The municipal prosecutor may be sanctioned for failing to provide discovery. R.3:13 ; see State v. Audette, 201 N.J. Super. 410 (App. Div. 1985) State v. Polasky, 216 N.J. Super. 549 (Law Div. 1986). A defendant who believes the State has not supplied relevant materials reasonably required for the defense may give notice to the State and the court prior to the date set for commencement of trial where possible. Ford, supra at 52. Information relating to prerequisite conditions establishing reliability is highly relevant, Ford, supra at 52 and extremely material. Id. at 51. Thus , information concerning conditions under which tests were held, the machine operator's competence, the particular machine's state of repair and identification, and documentation of the ampoule used for defendant's breath tests are all relevant inquiries. Id. Discovery in the Municipal Court Court Rule 7:7-7. Discovery and Inspection (a) Scope. If the government is represented by the municipal or a private prosecutor, discovery shall be available to the parties only as provided by this rule, unless the court otherwise orders. In the absence of a municipal or private prosecutor, discovery shall be available to the parties in the manner directed by the court. All discovery requests by defendant shall be served on the municipal prosecutor, who shall be responsible for making government discovery available to the defendant. If the matter is, however, not being prosecuted by the municipal prosecutor, the municipal prosecutor shall transmit defendant's discovery requests to the prosecutor, or, if there is no prosecutor, the municipal prosecutor shall transmit defendant's court ordered discovery requests to the complaining witness. (b) Discovery by Defendant. In all cases involving a consequence of magnitude or when ordered by the court, the defendant, on written notice to the municipal prosecutor or private prosecutor, shall be allowed to inspect, copy, and photograph or to be provided with copies of any relevant: (1) books, tangible objects, papers or documents obtained from or belonging to the defendant; (2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded; (3) grand jury proceedings recorded pursuant to R. 3:6-6; (4) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies of these results or reports, that are within the possession, custody or control of the prosecuting attorney; (5) reports or records of defendant's prior convictions; (6) books, originals or copies of papers and documents, or tangible objects, buildings or places that are within the possession, custody or control of the government; (7) names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information, including a designation by the prosecuting attorney as to which of those persons the prosecuting attorney may call as witnesses; (8) record of statements, signed or unsigned, by the persons described by subsection (7) of this rule or by co-defendants within the possession, custody or control of the prosecuting attorney, and any relevant record of prior conviction of those persons; (9) police reports that are within the possession, custody or control of the prosecuting attorney; (10) warrants, that have been completely executed, and any papers accompanying them, as described by R. 7:5-1(a); (11) the names and addresses of each person whom the prosecuting attorney expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of the expert witness, or if no report was prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. If this information is requested and not furnished, the expert witness may, upon application by the defendant, be barred from testifying at trial. (c) Discovery by the State. In all cases involving a consequence of magnitude or when ordered by the court, the municipal prosecutor or private prosecutor, on written notice to the defendant, shall be allowed to inspect, copy, and photograph or to be provided with copies of any relevant: (1) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies of these results or reports within the possession, custody or control of the defendant or defense counsel; (2) any relevant books, originals or copies of papers and other documents or tangible objects, buildings or places within the possession, custody or control of the defendant or defense counsel; (3) the names and addresses of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements; (4) written statements, if any, including any memoranda reporting or summarizing the oral statements, made by any witnesses whom the government may call as a witness at trial; and (5) the names and addresses of each person whom the defense expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, and a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. If this information is requested and not furnished, the expert may, upon application by the prosecuting attorney, be barred from testifying at trial. (d) Documents Not Subject to Discovery. This rule does not require discovery of a party's work product, consisting of internal reports, memoranda or documents made by that party or by that party's attorney or agents, in connection with the investigation, prosecution or defense of the matter. Nor does it require discovery by the government of records or statements, signed or unsigned, by defendant made to defendant's attorney or agents. (e) Protective Orders. (1) Grounds. Upon motion and for good cause shown, the court may at any time order that the discovery or inspection, copying or photographing sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; protection of confidential relationships and privileges recognized by law; and any other relevant considerations. (2) Procedures. The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone. If the court enters a protective order, the entire text of the statement shall be sealed and preserved in the court's records, to be made available only to the appellate court in the event of an appeal. (f) Time and Procedure. A defense request for discovery shall be made contemporaneously with the entry of appearance by the defendant's attorney, who shall submit a copy of the appearance directly to the municipal prosecutor. If the defendant is pro se, any requests for discovery shall be made in writing and submitted by the defendant directly to the municipal prosecutor. The municipal prosecutor shall respond to the discovery request in accordance with paragraph (b) of this rule within 10 days after receiving the request. Unless otherwise ordered by the judge, the defendant shall provide the government with discovery, as provided by paragraph (c) of this rule within 20 days of the prosecuting attorney's compliance with the defendant's discovery request. (g) Continuing Duty to Disclose; Failure to Comply. If a party who has complied with this rule discovers, either before or during trial, additional material or names of witnesses previously requested or ordered subject to discovery or inspection, that party shall promptly notify the other party or that party's attorney of the existence of these additional materials and witnesses. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order that party to permit the discovery, inspection, copying or photographing of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems appropriate. 7:7-8. Form of Subpoena In cases involving non-indictable offenses, the law enforcement officer may issue and serve subpoenas to testify in the form prescribed by the Administrative Director of the Courts. Courts having jurisdiction over such offenses, the Division of State Police, the Division of Motor Vehicles and any other agency so authorized by the Administrative Director of the Courts may supply subpoena forms to their law enforcement officers. After service of a subpoena, DISCOVERY IN INDICTABLE CRIMINAL CASES [FELONY LEVEL IN NEW YORK] Court Rule 3:13-3. Discovery and Inspection (a) Pre-indictment Discovery. Where the prosecutor has made a pre-indictment plea offer, the prosecutor shall upon request permit defense counsel to inspect and copy or photograph any relevant material which would be discoverable following an indictment pursuant to section (b) or (c). (b) Post Indictment Discovery. A copy of the prosecutor's discovery shall be delivered to the criminal division manager's office, or shall be available at the prosecutor's office, within 14 days of the return or unsealing of the indictment. Defense counsel shall obtain a copy of the discovery from the criminal division manager's office, or the prosecutor's office, no later than 28 days after the return or unsealing of the indictment. A defendant who does not seek discovery from the State shall so notify the criminal division manager's office and the prosecutor, and the defendant need not provide discovery to the State pursuant to sections (d) or (g), except as required by Rule 3:12-1 or otherwise required by law. Defense counsel will forward a copy of discovery materials to the prosecuting attorney no later than 7 days before the arraignment/status conference. (c) Discovery by the Defendant. The prosecutor shall permit defendant to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b): (1) books, tangible objects, papers or documents obtained from or belonging to the defendant; (2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded; (3) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of the prosecutor; (4) reports or records of prior convictions of the defendant; (5) books, papers, documents, or copies thereof, or tangible objects, buildings or places which are within the possession, custody or control of the prosecutor; (6) names and addresses of any persons whom the prosecutor knows to have relevant evidence or information including a designation by the prosecutor as to which of those persons may be called as witnesses; (7) record of statements, signed or unsigned, by such persons or by co-defendants which are within the possession, custody or control of the prosecutor and any relevant record of prior conviction of such persons; (8) police reports which are within the possession, custody, or control of the prosecutor; (9) names and addresses of each person whom the prosecutor expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial. (d) Discovery by the State. A defendant shall permit the State to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b): (1) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of defense counsel; (2) any relevant books, papers, documents or tangible objects, buildings or places or copies thereof, which are within the possession, custody or control of defense counsel; (3) the names and addresses of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements; (4) written statements, if any, including any memoranda reporting or summarizing the oral statements, made by any witnesses whom the State may call as a witness at trial; (5) names and address of each person whom the defense expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, and a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial the expert may, upon application by the prosecutor, be barred from testifying at trial. (e) Documents Not Subject to Discovery. This rule does not require discovery of a party's work product consisting of internal reports, memoranda or documents made by that party or the party's attorney or agents, in connection with the investigation, prosecution or defense of the matter nor does it require discovery by the State of records or statements, signed or unsigned, of defendant made to defendant's attorney or agents. (f) Protective Orders. (1) Grounds. Upon motion and for good cause shown the court may at any time order that the discovery or inspection sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; protection of confidential relationships and privileges recognized by law; any other relevant considerations. (2) Procedure. The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone, and if the court thereafter enters a protective order, the entire text of the statement shall be sealed and preserved in the records of the court, to be made available only to the appellate court in the event of an appeal. (g) Continuing Duty to Disclose; Failure to Comply. If subsequent to the compliance with a request by the prosecuting attorney or defense counsel or with an order issued pursuant to the within rule and prior to or during trial a party discovers additional material or witnesses previously requested or ordered subject to discovery or inspection, that party shall promptly notify the other party or that party's attorney of the existence thereof. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate. The Court Should Dismiss Complaints Against Defendant When the State is Not Ready to Proceed or Discovery Not Provided. Preparation of the State's case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987). In State v. Polasky, 216 N.J. Super. 549 (Law Div 1986) Judge Haines discussed the municipal prosecutor's role in connection with discovery, and added: There is further reason for requiring the prosecutor to be responsible. In our court system, the prosecutor, contrary to an ordinary advocate, has a duty to see that justice is done. State v. D'Ippolito, 19 N.J. 450, 549-550 [117 A.2d 592] (1955). He is not to prosecute, for example, when the evidence does not support the State's charges. Consequently, the prosecutor has an obligation to defendants as well as the State and the public. Our discovery rules implicate that obligation, an obligation which can be discharged by no one else. [216 N.J. Super. at 555, 524 A.2d 474] As set forth in State v Prickett; 240 NJ Super 139, 146 (App. Div 1990), it is the municipal prosecutor who selects the State's witnesses, requests postponements for the State, complies with discovery rules, requests dismissal if the State cannot make out a case, and does all else necessary to prepare and present the State's cases in the municipal court. See also Position 3.11, "The Role of the Prosecutor, Report of the Supreme Court Task Force on the Improvement of Municipal Courts (1985)". R. 1:2-4(a) provides for payment of costs to an adverse party as a condition of adjournment even where the State is the offending party in a criminal action. State v. Audette, 201 N.J. Super. 410, 493 A. 2d 540 (App. Div. 1985). In Prickett, supra the Appellate Division agreed with the Law Division judge that the case should be remanded to the municipal court for determination and imposition of appropriate costs and for trial within 45 days of the date of this opinion. A party has failed to comply with this Rule [a discovery request] or with an order issued pursuant to this Rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate. State v Prickett 240 NJ Super 139, 145 App. Div (1990) We have the problem of a part-time municipal prosecutor responsible for preparing cases for trial who abandons a prosecutorial function to the municipal court clerk who assumes it. R. 1:9-1 indicates that the court clerk may issue a subpoena, but makes no provision for service by the court clerk nor does it give the clerk the authority to excuse any witness absent instructions from the municipal court judge. The municipal court clerk should not become involved in the preparation of the State's case. See N.J. Municipal Court Clerks' Manual, §2.3, pp. 69-70 (A.O.C. 1985) which states: "The municipal prosecutor has the responsibility for determining what witnesses he wants and of preparing his own subpoenas. However, if the municipal prosecutor lacks secretarial help, court personnel may assist in typing the subpoenas." State v Prickett 240 NJ Super at 145. However, the court should not ever act as the prosecutor's assistant. The court must be neutral. If the state is not prepared, the charges should be dismissed or state sanctioned. Because the State is the municipal prosecutor's client, a failure to discharge the obligations of his office is a violation of a prosecutor's professional responsibility to represent the client diligently. When a prosecutor has available relevant evidence bearing on a prosecution, and the prosecutor's failure to present that evidence in the course of trial results in acquittal, that prosecutor has not diligently discharged his or her duty to prepare and present the State's case. Furthermore, when the failure to prepare for trial and present relevant evidence prejudices the State's case, the prosecutor's deviation from that duty may be so severe as to constitute gross negligence. Matter of Segal 130 NJ 468 (1992) Furthermore, "delay occasioned by the courts must be charged against the State, not the defendant." State v Perkins, 219 NJ Super. 121, 127 (Law Div 1987). "The court is one part of our tripartite system of government. Its failures cannot be permitted to injure a defendant who had nothing to do with them and no control over them." Id. at 127. When a Prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable. United States v Agurs 427 US 97, 106, 98 S. Ct. 2392, 2399, 49 L Ed 2d 342 (1976) CHARGES SHOULD BE DISMISSED IF SPEEDY TRIAL VIOLATED In a DWI case, State v. Farrell NJ Super (App. Div 1999) a DWI conviction was reversed and case dismissed based on speedy trial violation. The court held: "Excessive delay in completing a prosecution can potentially violate a defendant's constitutional right to a speedy trial as a matter of fundamental fairness, apart from whether double jeopardy standards have been contravened. Id. at 354-55. In cases arising from municipal court DWI prosecutions, just as with criminal prosecutions, consideration whether the right to a speedy trial has been violated is guided by the four factors announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed.2d 101, 117-18 (1972). Gallegan, supra, [117 NJ 345, 1989] 117 N.J. at 355; State v. Prickett, 240 N.J. Super. 139, 143 (App. Div. 1990)." Farrell, supra. Specifically, the court must engage in a multi-element balancing process of the four factors: the length of the delay, the reasons for the delay, whether the defendant asserted his right to speedy trial, and any prejudice to the defendant occasioned by the delay. Gallegan, supra, 117 N.J. at 355; State v. Marcus, 294 N.J. Super. 267, 293 (App. Div. 1996), certif. denied, 157 N.J. 543 (1997). State v Farrell NJ supra. Delay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation. Gallegan, supra , 117 N.J. at 355; Marcus, supra, 294 N.J. Super. at 293. Further, because the evaluative process involves a balancing of considerations, if the other factors weigh heavily enough, a speedy trial violation can be established without an affirmative showing of prejudice to the defendant. See State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976). In a related vein, the defendant's demonstration of prejudice is not strictly limited to a "lessened ability to defend on the merits." Ibid. Rather, prejudice can be found from a variety of factors including "employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like." Ibid. (citing Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed.2d 183 (1973)), cited by State v Farrell, supra. The New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases. In 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days. See State v. Fox, 249 N.J. Super. 521, 523 & n.1 (Law Div. 1991); State v. Perkins, 219 N.J. Super. 121, 124 (Law Div. 1987). In Perkins, supra, defendant was charged with DWI on October 10, 1986, following a car accident in which only he was injured. 219 N.J. Super. at 122. Defendant first appeared in municipal court on December 4, 1986, but the State was not prepared to proceed and sought a continuance. Id. at 123. The trial was reset for January 8, 1987, and the municipal court judge stated that defendant would be entitled to a dismissal if the State was not ready to prosecute. Ibid. Nevertheless, even though the State was not prepared on January 8 due to a change of prosecutor and subpoena problems, the municipal court denied defendant's motion to dismiss. Perkins at 123-24. On appeal, in Perkins the Law Division dismissed the complaint against defendant. Id. at 124. After first noting the Supreme Court's sixty-day directive, the judge stressed that the municipal court had promised that the case would be tried or dismissed on that date. Id. at 124-25. He stated that "[a] court's promise is sacrosanct" and must be honored. Id. at 125. Accordingly, the municipal court's denial of defendant's motion to dismiss was evaluated as "an arbitrary, and therefore improper" exercise of discretion. Ibid. The municipal court's promises aside, the Law Division judge added, a substitution of prosecutor and failure to subpoena witnesses and otherwise prepare the State's case could not justify the second adjournment. Ibid. As a general rule in applying the evaluative features of the four part test of Barker in fundamental fairness terms, delays of scheduling and other failures of the process for which the trial court itself was responsible are attributable to the State and not to the defendant. 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 Moreover, prejudice to a defendant resulting from delay is no longer confined to inability or lessened ability to defend on the merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like. Moore v. Arizona, supra. [Smith, supra, 131 N.J. Super. at 368 n. 2.] "A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover ...society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest." State v Perkins, supra at 127, quoting Barker v Wingo, supra, 497 U.S. at 527. Finally, The state's charges for discovery cannot violate State v Green 327 NJ Super 334 (App. Div 2000) What the State Must Automatically Provide in DWI In drunk driving cases, the State typically provides copies of a "drunk driving folio" which usually includes: > summonses, front and back, > drinking driving report ["DDR"], including a check off list of observations and a narrative of investigation, > alcohol influence report ["AIR"]. including chemical test information and breathalyzer operational checklist ["checklist " ] > assay report for ampoule chemicals ["assay"], > breathalyzer operator certification card ["BOCC"], > certificate of analysis from the N.J. Division of State Police for breath alcohol simulator solution. The State should also provide the following information, even with a general discovery demand in a DWI case Ford, supra at 52: > full identification of the instrument used, > the date it was first placed in service by the State, > the type of instrument used, > the manufacturer of the instrument, > the model number of the instrument, > results of coordinator's testing of the instrument for approximately one year before and including the next testing after defendant's tests, > the time of administration of the tests, > the result. > reports and relevant documents signed by defendant, > reports concerning defendant's sobriety, including blood and urine tests. Other discovery sometimes requested for DWI. The defense request, as other discovery, items such as: > ampoules, > BTIICs for the 12 months preceding the arrest > breath testing instrument inspection procedures, > ampoule random sample testing procedures, > radio frequency interference testing procedures, > FCC licenses for radio frequencies assigned to police radio base. Reference ampoules may be discoverable. See State v. Maure, 240 N.J. Super. 269 (App. Div. 1990), N.J. 457 (1991); Ford, supra; State v. Dohme, 223 485 (App. Div. 1988) ("Dohme I"); and State v. Dohme, 229 NJ Super. 49 (App. Div. 1988) ("Dohme II"). See also People v Hitch 12 Cal. 3d 641, 527 P.2d 361, 117 Cal.RPtr. 9 (1974). As to test ampoule discoverability in New Jersey, see State v Teare, 129 N.J. Super. 562 (Law Div. 1974), rev'd in part 133 NJ Super. 338 (App Div. 1975), appeal after remand 135 N.J. Super. 19 (Law Div. 1975) and State v. Bryan, 133 N.J. Super. 369 (Law Div. 1974). In seeking reference ampoules, the court may exercise its "discretion to order the turnover of a relevant ampoule in an appropriate case...." State v Young 242 NJ Super. 467 (App. Div 1990) Case law also suggest that defendants may discover breathalyzer operation and inspection procedures. As to operation of the breathalyzer, "[a] defendant .... need not know flawed procedures were used in giving a breathalyzer test in order for the State to disclose information about those procedures." Ford, supra at 49 (emphasis in original); see Tull, BTIIC's for the 12 months before a defendant's breath tests may show recurring or intermittent problems affecting the breathalyzer that would not necessarily show up on BTIIC's before and after the tests. And with BTIIC's since September 1983, the defense can demonstrate how the State has altered breath testing instrument inspection procedures, probably without proper authority, and perhaps changed the reliability procedures refereed to in Romano v. Kimmelman. 96 N.J. 66 (1984); see State v. Klemmer, 237 N.J. Super. Div. 1989), for an example of such a challenge in the context of Intoxicated Driver Resource procedures. The State typically seeks to prove BAC with breath test results obtained by a Breathalyzer Model 900 or 900A. The State must clearly prove certain conditions, among others: 1. The equipment was in proper working order was periodically inspected in accordance with procedures. Romano v. Kimmelman, 96 N.J. 66, 81 and 82 (1984) 2. The operator was qualified i.e., properly certified to administer the instrument. Id.; State v. Ernst, 230 N.J. Super. 238 (App. Div. 1989), cert den. 117 N.J. 40; 3. The test was given correctly-- ie in accordance with official instructions and accepted procedures. Romano, supra at 81 and 82 4.1. As to Breathalyzer Model 900: Hand held transmitters were banned from any area close to the instrument. Romano, supra at 85 4.2. As to Breathalyzer Model 900A: either two readings within 0.01 of each other were obtained, Romano, supra at 87 88 or a determination of radio frequency interference ["RFI"] sensitivity was made in accordance with state police inspection procedures followed in September 1983, and if RFI hand held transmitters and police cars with transmitters were banned from any area close to the instrument and extra care was used to shield it. Romano, supra at 88-89 > whether the lot number in the BTIIC's "simulator solution percentage" box is the same as breath alcohol simulator solution lot number as the certificate of analysis from the state police. Items Defenses Counsel may be entitled to Discovery Regarding the Breathalyzer machine Who manufactured the breathalyzer used in the defendant's case: Stephenson, Smith & Wesson, National Draeger? When was the instrument placed in service? Breathalyzer operators must set the blood alcohol pointer on a start line. Depending on the manufacturer and date placed in service the start line could he either 0.010 or 0.003. If the defendant was tested on a newer instrument with a 0.010 start line, particularly in the close case, that use of the newer instrument violates due process and the defendant's right to equal protection under the law, and the defendant should at least be given the benefit of the doubt. Manuals about the operation, service, and maintenance of the breathalyzer should be available to defense counsel. They are also needed by defense counsel to prepare an effective cross examination. Defense counsel must prepare cross-examination prior to court, not during a trial. Discovery Needed for Cross- Examination About Breathalyzer Inspection Are breathalyzer model at trial numbers on the BTIICs and AIR the same? If not, the breathalyzer tested by the coordinator is probably not the same one the operator used to test the defendant, and there is a serious question of instrument identification. Do consecutive BTIICs ''bracket" (i.e., are they dated before and after) the date of the defendant's breath tests and are they consecutively numbered? If not, the defense cannot know whether the instrument was "in satisfactory working condition" on the day the defendant was tested. And a missing BTIIC may contain important information helpful to the defense. Are the same ampoule control numbers on both bracketing BTIICs and AlR? If not, the State may have difficulty proving that ampoule chemicals were properly constituted from a consistent batch. See Dohme I, supra; Dohme II, supra; and Maure, supra. Is the breathalyzer's assigned location on the BTIIC the same as the police station where tests were given to the defendant? If not, then the instrument may have been moved and its inspection, particularly as to RFI, may be irrelevant or at least questionable. What do BTIIC remarks, if any, say? If they note some complaint about the instrument, demand the complainant's identity and all documents concerning the complaint. If the coordinator wrote an opinion that the particular complaint would have either not affected breath test readings or made testing impossible, argue that such comments are inadmissible and should be excised from the document because they lack foundation and violate the defendant's right to confront this paper witness. State v. Matulewicz , 101 N.J. 27 (1985). If the coordinator removed the instrument from service, readings obtained by the instrument should not be admissible at all. Do frequencies identified in FCC licenses match the frequencies, if any, listed on BTIICs? If not, defense questions whether the instrument was properly and completely inspected for the effects of RFI. What does the certificate of analysis for the simulator solution say anyway? Neither language in the BTIIC ties it to the certificate nor does language in the certificate usually tie it BTIIC. Beyond a reasonable doubt standards prevent the court from raising an inference that breath testing instruments certified as being "in satisfactory working condition" are actually accurate. |
Monday, May 2, 2011
Discovery and Obtaining Police Reports in Criminal Cases - New articles, ABA newsletters and Community Events
Discovery and Obtaining Police Reports in Criminal Cases |
Under the New Jersey Court Rules, a New Jersey Attorney can obtain discovery and police reports from the Prosecutor. We can appear in court for you on most Central New Jersey criminal and traffic violations. The law entitles criminal and drunk driving defendants to pre trial discovery. R.3:13 3; R.7:4 2(h); State v. Young, 242 N.J. Super. 467, 470 (App. Div. 1990); State v. Ford, 240 N.J. Super. 44, 48 (App. Div. 1990); State v. Utsch, 184 N.J. Super. 575, 579 (App. Div. 1982). Due process requires the State disclose evidence that is material to either guilt or punishment; indeed, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise reasonable doubt about a defendant's guilt. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United States v. Agurs, 427 U.S. 97, 98 S.Ct. 2392, 49 L.Ed. 2d 342 (1976). A wide variety of materials in the State's possession could constitute exculpatory information to which a defendant is entitled. Ford, supra at 52 A demand for discovery has been served upon the prosecutor who has the responsibility to answer. State v. Tull, 234 N.J. Super. 486, 494 (Law Div. 1989). A defendant's right to discovery is not dependent upon an appraisal of the beneficial value of the material sought to be discovered. State v. Polito, 116 N.J. Super. 552 (App. Div. 1977), Ford, supra at 51). Thus, a prosecutor is expected to act reasonably when responding to a discovery demand. Tull, supra at 496. The prosecutor may not refuse a discovery demand simply because the information or materials sought are not in the municipal offices or within easy reach. Id. at 495. The municipal prosecutor cannot refuse production on the ground that the requested information is not known by the prosecutor personally to be in existence when its existence is either common knowledge of the police department or when the knowledge could be obtained by reasonable inquiry. Id. at 500. The municipal prosecutor must either object to what the prosecutor perceives to be irrelevant discovery requests, or respond within 10 days of the receipt of the defendant's request for discovery. Ford supra at 51; see Tull, supra at 500. The municipal prosecutor may be sanctioned for failing to provide discovery. R.3:13 ; see State v. Audette, 201 N.J. Super. 410 (App. Div. 1985) State v. Polasky, 216 N.J. Super. 549 (Law Div. 1986). A defendant who believes the State has not supplied relevant materials reasonably required for the defense may give notice to the State and the court prior to the date set for commencement of trial where possible. Ford, supra at 52. Information relating to prerequisite conditions establishing reliability is highly relevant, Ford, supra at 52 and extremely material. Id. at 51. Thus , information concerning conditions under which tests were held, the machine operator's competence, the particular machine's state of repair and identification, and documentation of the ampoule used for defendant's breath tests are all relevant inquiries. Id. Discovery in the Municipal Court Court Rule 7:7-7. Discovery and Inspection (a) Scope. If the government is represented by the municipal or a private prosecutor, discovery shall be available to the parties only as provided by this rule, unless the court otherwise orders. In the absence of a municipal or private prosecutor, discovery shall be available to the parties in the manner directed by the court. All discovery requests by defendant shall be served on the municipal prosecutor, who shall be responsible for making government discovery available to the defendant. If the matter is, however, not being prosecuted by the municipal prosecutor, the municipal prosecutor shall transmit defendant's discovery requests to the prosecutor, or, if there is no prosecutor, the municipal prosecutor shall transmit defendant's court ordered discovery requests to the complaining witness. (b) Discovery by Defendant. In all cases involving a consequence of magnitude or when ordered by the court, the defendant, on written notice to the municipal prosecutor or private prosecutor, shall be allowed to inspect, copy, and photograph or to be provided with copies of any relevant: (1) books, tangible objects, papers or documents obtained from or belonging to the defendant; (2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded; (3) grand jury proceedings recorded pursuant to R. 3:6-6; (4) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies of these results or reports, that are within the possession, custody or control of the prosecuting attorney; (5) reports or records of defendant's prior convictions; (6) books, originals or copies of papers and documents, or tangible objects, buildings or places that are within the possession, custody or control of the government; (7) names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information, including a designation by the prosecuting attorney as to which of those persons the prosecuting attorney may call as witnesses; (8) record of statements, signed or unsigned, by the persons described by subsection (7) of this rule or by co-defendants within the possession, custody or control of the prosecuting attorney, and any relevant record of prior conviction of those persons; (9) police reports that are within the possession, custody or control of the prosecuting attorney; (10) warrants, that have been completely executed, and any papers accompanying them, as described by R. 7:5-1(a); (11) the names and addresses of each person whom the prosecuting attorney expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of the expert witness, or if no report was prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. If this information is requested and not furnished, the expert witness may, upon application by the defendant, be barred from testifying at trial. (c) Discovery by the State. In all cases involving a consequence of magnitude or when ordered by the court, the municipal prosecutor or private prosecutor, on written notice to the defendant, shall be allowed to inspect, copy, and photograph or to be provided with copies of any relevant: (1) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies of these results or reports within the possession, custody or control of the defendant or defense counsel; (2) any relevant books, originals or copies of papers and other documents or tangible objects, buildings or places within the possession, custody or control of the defendant or defense counsel; (3) the names and addresses of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements; (4) written statements, if any, including any memoranda reporting or summarizing the oral statements, made by any witnesses whom the government may call as a witness at trial; and (5) the names and addresses of each person whom the defense expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, and a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. If this information is requested and not furnished, the expert may, upon application by the prosecuting attorney, be barred from testifying at trial. (d) Documents Not Subject to Discovery. This rule does not require discovery of a party's work product, consisting of internal reports, memoranda or documents made by that party or by that party's attorney or agents, in connection with the investigation, prosecution or defense of the matter. Nor does it require discovery by the government of records or statements, signed or unsigned, by defendant made to defendant's attorney or agents. (e) Protective Orders. (1) Grounds. Upon motion and for good cause shown, the court may at any time order that the discovery or inspection, copying or photographing sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; protection of confidential relationships and privileges recognized by law; and any other relevant considerations. (2) Procedures. The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone. If the court enters a protective order, the entire text of the statement shall be sealed and preserved in the court's records, to be made available only to the appellate court in the event of an appeal. (f) Time and Procedure. A defense request for discovery shall be made contemporaneously with the entry of appearance by the defendant's attorney, who shall submit a copy of the appearance directly to the municipal prosecutor. If the defendant is pro se, any requests for discovery shall be made in writing and submitted by the defendant directly to the municipal prosecutor. The municipal prosecutor shall respond to the discovery request in accordance with paragraph (b) of this rule within 10 days after receiving the request. Unless otherwise ordered by the judge, the defendant shall provide the government with discovery, as provided by paragraph (c) of this rule within 20 days of the prosecuting attorney's compliance with the defendant's discovery request. (g) Continuing Duty to Disclose; Failure to Comply. If a party who has complied with this rule discovers, either before or during trial, additional material or names of witnesses previously requested or ordered subject to discovery or inspection, that party shall promptly notify the other party or that party's attorney of the existence of these additional materials and witnesses. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order that party to permit the discovery, inspection, copying or photographing of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems appropriate. 7:7-8. Form of Subpoena In cases involving non-indictable offenses, the law enforcement officer may issue and serve subpoenas to testify in the form prescribed by the Administrative Director of the Courts. Courts having jurisdiction over such offenses, the Division of State Police, the Division of Motor Vehicles and any other agency so authorized by the Administrative Director of the Courts may supply subpoena forms to their law enforcement officers. After service of a subpoena, DISCOVERY IN INDICTABLE CRIMINAL CASES [FELONY LEVEL IN NEW YORK] Court Rule 3:13-3. Discovery and Inspection (a) Pre-indictment Discovery. Where the prosecutor has made a pre-indictment plea offer, the prosecutor shall upon request permit defense counsel to inspect and copy or photograph any relevant material which would be discoverable following an indictment pursuant to section (b) or (c). (b) Post Indictment Discovery. A copy of the prosecutor's discovery shall be delivered to the criminal division manager's office, or shall be available at the prosecutor's office, within 14 days of the return or unsealing of the indictment. Defense counsel shall obtain a copy of the discovery from the criminal division manager's office, or the prosecutor's office, no later than 28 days after the return or unsealing of the indictment. A defendant who does not seek discovery from the State shall so notify the criminal division manager's office and the prosecutor, and the defendant need not provide discovery to the State pursuant to sections (d) or (g), except as required by Rule 3:12-1 or otherwise required by law. Defense counsel will forward a copy of discovery materials to the prosecuting attorney no later than 7 days before the arraignment/status conference. (c) Discovery by the Defendant. The prosecutor shall permit defendant to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b): (1) books, tangible objects, papers or documents obtained from or belonging to the defendant; (2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded; (3) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of the prosecutor; (4) reports or records of prior convictions of the defendant; (5) books, papers, documents, or copies thereof, or tangible objects, buildings or places which are within the possession, custody or control of the prosecutor; (6) names and addresses of any persons whom the prosecutor knows to have relevant evidence or information including a designation by the prosecutor as to which of those persons may be called as witnesses; (7) record of statements, signed or unsigned, by such persons or by co-defendants which are within the possession, custody or control of the prosecutor and any relevant record of prior conviction of such persons; (8) police reports which are within the possession, custody, or control of the prosecutor; (9) names and addresses of each person whom the prosecutor expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial. (d) Discovery by the State. A defendant shall permit the State to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b): (1) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of defense counsel; (2) any relevant books, papers, documents or tangible objects, buildings or places or copies thereof, which are within the possession, custody or control of defense counsel; (3) the names and addresses of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements; (4) written statements, if any, including any memoranda reporting or summarizing the oral statements, made by any witnesses whom the State may call as a witness at trial; (5) names and address of each person whom the defense expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, and a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial the expert may, upon application by the prosecutor, be barred from testifying at trial. (e) Documents Not Subject to Discovery. This rule does not require discovery of a party's work product consisting of internal reports, memoranda or documents made by that party or the party's attorney or agents, in connection with the investigation, prosecution or defense of the matter nor does it require discovery by the State of records or statements, signed or unsigned, of defendant made to defendant's attorney or agents. (f) Protective Orders. (1) Grounds. Upon motion and for good cause shown the court may at any time order that the discovery or inspection sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; protection of confidential relationships and privileges recognized by law; any other relevant considerations. (2) Procedure. The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone, and if the court thereafter enters a protective order, the entire text of the statement shall be sealed and preserved in the records of the court, to be made available only to the appellate court in the event of an appeal. (g) Continuing Duty to Disclose; Failure to Comply. If subsequent to the compliance with a request by the prosecuting attorney or defense counsel or with an order issued pursuant to the within rule and prior to or during trial a party discovers additional material or witnesses previously requested or ordered subject to discovery or inspection, that party shall promptly notify the other party or that party's attorney of the existence thereof. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate. The Court Should Dismiss Complaints Against Defendant When the State is Not Ready to Proceed or Discovery Not Provided. Preparation of the State's case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987). In State v. Polasky, 216 N.J. Super. 549 (Law Div 1986) Judge Haines discussed the municipal prosecutor's role in connection with discovery, and added: There is further reason for requiring the prosecutor to be responsible. In our court system, the prosecutor, contrary to an ordinary advocate, has a duty to see that justice is done. State v. D'Ippolito, 19 N.J. 450, 549-550 [117 A.2d 592] (1955). He is not to prosecute, for example, when the evidence does not support the State's charges. Consequently, the prosecutor has an obligation to defendants as well as the State and the public. Our discovery rules implicate that obligation, an obligation which can be discharged by no one else. [216 N.J. Super. at 555, 524 A.2d 474] As set forth in State v Prickett; 240 NJ Super 139, 146 (App. Div 1990), it is the municipal prosecutor who selects the State's witnesses, requests postponements for the State, complies with discovery rules, requests dismissal if the State cannot make out a case, and does all else necessary to prepare and present the State's cases in the municipal court. See also Position 3.11, "The Role of the Prosecutor, Report of the Supreme Court Task Force on the Improvement of Municipal Courts (1985)". R. 1:2-4(a) provides for payment of costs to an adverse party as a condition of adjournment even where the State is the offending party in a criminal action. State v. Audette, 201 N.J. Super. 410, 493 A. 2d 540 (App. Div. 1985). In Prickett, supra the Appellate Division agreed with the Law Division judge that the case should be remanded to the municipal court for determination and imposition of appropriate costs and for trial within 45 days of the date of this opinion. A party has failed to comply with this Rule [a discovery request] or with an order issued pursuant to this Rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate. State v Prickett 240 NJ Super 139, 145 App. Div (1990) We have the problem of a part-time municipal prosecutor responsible for preparing cases for trial who abandons a prosecutorial function to the municipal court clerk who assumes it. R. 1:9-1 indicates that the court clerk may issue a subpoena, but makes no provision for service by the court clerk nor does it give the clerk the authority to excuse any witness absent instructions from the municipal court judge. The municipal court clerk should not become involved in the preparation of the State's case. See N.J. Municipal Court Clerks' Manual, §2.3, pp. 69-70 (A.O.C. 1985) which states: "The municipal prosecutor has the responsibility for determining what witnesses he wants and of preparing his own subpoenas. However, if the municipal prosecutor lacks secretarial help, court personnel may assist in typing the subpoenas." State v Prickett 240 NJ Super at 145. However, the court should not ever act as the prosecutor's assistant. The court must be neutral. If the state is not prepared, the charges should be dismissed or state sanctioned. Because the State is the municipal prosecutor's client, a failure to discharge the obligations of his office is a violation of a prosecutor's professional responsibility to represent the client diligently. When a prosecutor has available relevant evidence bearing on a prosecution, and the prosecutor's failure to present that evidence in the course of trial results in acquittal, that prosecutor has not diligently discharged his or her duty to prepare and present the State's case. Furthermore, when the failure to prepare for trial and present relevant evidence prejudices the State's case, the prosecutor's deviation from that duty may be so severe as to constitute gross negligence. Matter of Segal 130 NJ 468 (1992) Furthermore, "delay occasioned by the courts must be charged against the State, not the defendant." State v Perkins, 219 NJ Super. 121, 127 (Law Div 1987). "The court is one part of our tripartite system of government. Its failures cannot be permitted to injure a defendant who had nothing to do with them and no control over them." Id. at 127. When a Prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable. United States v Agurs 427 US 97, 106, 98 S. Ct. 2392, 2399, 49 L Ed 2d 342 (1976) CHARGES SHOULD BE DISMISSED IF SPEEDY TRIAL VIOLATED In a DWI case, State v. Farrell NJ Super (App. Div 1999) a DWI conviction was reversed and case dismissed based on speedy trial violation. The court held: "Excessive delay in completing a prosecution can potentially violate a defendant's constitutional right to a speedy trial as a matter of fundamental fairness, apart from whether double jeopardy standards have been contravened. Id. at 354-55. In cases arising from municipal court DWI prosecutions, just as with criminal prosecutions, consideration whether the right to a speedy trial has been violated is guided by the four factors announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed.2d 101, 117-18 (1972). Gallegan, supra, [117 NJ 345, 1989] 117 N.J. at 355; State v. Prickett, 240 N.J. Super. 139, 143 (App. Div. 1990)." Farrell, supra. Specifically, the court must engage in a multi-element balancing process of the four factors: the length of the delay, the reasons for the delay, whether the defendant asserted his right to speedy trial, and any prejudice to the defendant occasioned by the delay. Gallegan, supra, 117 N.J. at 355; State v. Marcus, 294 N.J. Super. 267, 293 (App. Div. 1996), certif. denied, 157 N.J. 543 (1997). State v Farrell NJ supra. Delay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation. Gallegan, supra , 117 N.J. at 355; Marcus, supra, 294 N.J. Super. at 293. Further, because the evaluative process involves a balancing of considerations, if the other factors weigh heavily enough, a speedy trial violation can be established without an affirmative showing of prejudice to the defendant. See State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976). In a related vein, the defendant's demonstration of prejudice is not strictly limited to a "lessened ability to defend on the merits." Ibid. Rather, prejudice can be found from a variety of factors including "employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like." Ibid. (citing Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed.2d 183 (1973)), cited by State v Farrell, supra. The New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases. In 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days. See State v. Fox, 249 N.J. Super. 521, 523 & n.1 (Law Div. 1991); State v. Perkins, 219 N.J. Super. 121, 124 (Law Div. 1987). In Perkins, supra, defendant was charged with DWI on October 10, 1986, following a car accident in which only he was injured. 219 N.J. Super. at 122. Defendant first appeared in municipal court on December 4, 1986, but the State was not prepared to proceed and sought a continuance. Id. at 123. The trial was reset for January 8, 1987, and the municipal court judge stated that defendant would be entitled to a dismissal if the State was not ready to prosecute. Ibid. Nevertheless, even though the State was not prepared on January 8 due to a change of prosecutor and subpoena problems, the municipal court denied defendant's motion to dismiss. Perkins at 123-24. On appeal, in Perkins the Law Division dismissed the complaint against defendant. Id. at 124. After first noting the Supreme Court's sixty-day directive, the judge stressed that the municipal court had promised that the case would be tried or dismissed on that date. Id. at 124-25. He stated that "[a] court's promise is sacrosanct" and must be honored. Id. at 125. Accordingly, the municipal court's denial of defendant's motion to dismiss was evaluated as "an arbitrary, and therefore improper" exercise of discretion. Ibid. The municipal court's promises aside, the Law Division judge added, a substitution of prosecutor and failure to subpoena witnesses and otherwise prepare the State's case could not justify the second adjournment. Ibid. As a general rule in applying the evaluative features of the four part test of Barker in fundamental fairness terms, delays of scheduling and other failures of the process for which the trial court itself was responsible are attributable to the State and not to the defendant. 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 Moreover, prejudice to a defendant resulting from delay is no longer confined to inability or lessened ability to defend on the merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like. Moore v. Arizona, supra. [Smith, supra, 131 N.J. Super. at 368 n. 2.] "A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover ...society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest." State v Perkins, supra at 127, quoting Barker v Wingo, supra, 497 U.S. at 527. Finally, The state's charges for discovery cannot violate State v Green 327 NJ Super 334 (App. Div 2000) What the State Must Automatically Provide in DWI In drunk driving cases, the State typically provides copies of a "drunk driving folio" which usually includes: > summonses, front and back, > drinking driving report ["DDR"], including a check off list of observations and a narrative of investigation, > alcohol influence report ["AIR"]. including chemical test information and breathalyzer operational checklist ["checklist " ] > assay report for ampoule chemicals ["assay"], > breathalyzer operator certification card ["BOCC"], > certificate of analysis from the N.J. Division of State Police for breath alcohol simulator solution. The State should also provide the following information, even with a general discovery demand in a DWI case Ford, supra at 52: > full identification of the instrument used, > the date it was first placed in service by the State, > the type of instrument used, > the manufacturer of the instrument, > the model number of the instrument, > results of coordinator's testing of the instrument for approximately one year before and including the next testing after defendant's tests, > the time of administration of the tests, > the result. > reports and relevant documents signed by defendant, > reports concerning defendant's sobriety, including blood and urine tests. Other discovery sometimes requested for DWI. The defense request, as other discovery, items such as: > ampoules, > BTIICs for the 12 months preceding the arrest > breath testing instrument inspection procedures, > ampoule random sample testing procedures, > radio frequency interference testing procedures, > FCC licenses for radio frequencies assigned to police radio base. Reference ampoules may be discoverable. See State v. Maure, 240 N.J. Super. 269 (App. Div. 1990), N.J. 457 (1991); Ford, supra; State v. Dohme, 223 485 (App. Div. 1988) ("Dohme I"); and State v. Dohme, 229 NJ Super. 49 (App. Div. 1988) ("Dohme II"). See also People v Hitch 12 Cal. 3d 641, 527 P.2d 361, 117 Cal.RPtr. 9 (1974). As to test ampoule discoverability in New Jersey, see State v Teare, 129 N.J. Super. 562 (Law Div. 1974), rev'd in part 133 NJ Super. 338 (App Div. 1975), appeal after remand 135 N.J. Super. 19 (Law Div. 1975) and State v. Bryan, 133 N.J. Super. 369 (Law Div. 1974). In seeking reference ampoules, the court may exercise its "discretion to order the turnover of a relevant ampoule in an appropriate case...." State v Young 242 NJ Super. 467 (App. Div 1990) Case law also suggest that defendants may discover breathalyzer operation and inspection procedures. As to operation of the breathalyzer, "[a] defendant .... need not know flawed procedures were used in giving a breathalyzer test in order for the State to disclose information about those procedures." Ford, supra at 49 (emphasis in original); see Tull, BTIIC's for the 12 months before a defendant's breath tests may show recurring or intermittent problems affecting the breathalyzer that would not necessarily show up on BTIIC's before and after the tests. And with BTIIC's since September 1983, the defense can demonstrate how the State has altered breath testing instrument inspection procedures, probably without proper authority, and perhaps changed the reliability procedures refereed to in Romano v. Kimmelman. 96 N.J. 66 (1984); see State v. Klemmer, 237 N.J. Super. Div. 1989), for an example of such a challenge in the context of Intoxicated Driver Resource procedures. The State typically seeks to prove BAC with breath test results obtained by a Breathalyzer Model 900 or 900A. The State must clearly prove certain conditions, among others: 1. The equipment was in proper working order was periodically inspected in accordance with procedures. Romano v. Kimmelman, 96 N.J. 66, 81 and 82 (1984) 2. The operator was qualified i.e., properly certified to administer the instrument. Id.; State v. Ernst, 230 N.J. Super. 238 (App. Div. 1989), cert den. 117 N.J. 40; 3. The test was given correctly-- ie in accordance with official instructions and accepted procedures. Romano, supra at 81 and 82 4.1. As to Breathalyzer Model 900: Hand held transmitters were banned from any area close to the instrument. Romano, supra at 85 4.2. As to Breathalyzer Model 900A: either two readings within 0.01 of each other were obtained, Romano, supra at 87 88 or a determination of radio frequency interference ["RFI"] sensitivity was made in accordance with state police inspection procedures followed in September 1983, and if RFI hand held transmitters and police cars with transmitters were banned from any area close to the instrument and extra care was used to shield it. Romano, supra at 88-89 > whether the lot number in the BTIIC's "simulator solution percentage" box is the same as breath alcohol simulator solution lot number as the certificate of analysis from the state police. Items Defenses Counsel may be entitled to Discovery Regarding the Breathalyzer machine Who manufactured the breathalyzer used in the defendant's case: Stephenson, Smith & Wesson, National Draeger? When was the instrument placed in service? Breathalyzer operators must set the blood alcohol pointer on a start line. Depending on the manufacturer and date placed in service the start line could he either 0.010 or 0.003. If the defendant was tested on a newer instrument with a 0.010 start line, particularly in the close case, that use of the newer instrument violates due process and the defendant's right to equal protection under the law, and the defendant should at least be given the benefit of the doubt. Manuals about the operation, service, and maintenance of the breathalyzer should be available to defense counsel. They are also needed by defense counsel to prepare an effective cross examination. Defense counsel must prepare cross-examination prior to court, not during a trial. Discovery Needed for Cross- Examination About Breathalyzer Inspection Are breathalyzer model at trial numbers on the BTIICs and AIR the same? If not, the breathalyzer tested by the coordinator is probably not the same one the operator used to test the defendant, and there is a serious question of instrument identification. Do consecutive BTIICs ''bracket" (i.e., are they dated before and after) the date of the defendant's breath tests and are they consecutively numbered? If not, the defense cannot know whether the instrument was "in satisfactory working condition" on the day the defendant was tested. And a missing BTIIC may contain important information helpful to the defense. Are the same ampoule control numbers on both bracketing BTIICs and AlR? If not, the State may have difficulty proving that ampoule chemicals were properly constituted from a consistent batch. See Dohme I, supra; Dohme II, supra; and Maure, supra. Is the breathalyzer's assigned location on the BTIIC the same as the police station where tests were given to the defendant? If not, then the instrument may have been moved and its inspection, particularly as to RFI, may be irrelevant or at least questionable. What do BTIIC remarks, if any, say? If they note some complaint about the instrument, demand the complainant's identity and all documents concerning the complaint. If the coordinator wrote an opinion that the particular complaint would have either not affected breath test readings or made testing impossible, argue that such comments are inadmissible and should be excised from the document because they lack foundation and violate the defendant's right to confront this paper witness. State v. Matulewicz , 101 N.J. 27 (1985). If the coordinator removed the instrument from service, readings obtained by the instrument should not be admissible at all. Do frequencies identified in FCC licenses match the frequencies, if any, listed on BTIICs? If not, defense questions whether the instrument was properly and completely inspected for the effects of RFI. What does the certificate of analysis for the simulator solution say anyway? Neither language in the BTIIC ties it to the certificate nor does language in the certificate usually tie it BTIIC. Beyond a reasonable doubt standards prevent the court from raising an inference that breath testing instruments certified as being "in satisfactory working condition" are actually accurate. |
Disclaimer by a Beneficiary of an Interest in a Will or Trust - New articles, ABA newsletters and Community Events
Disclaimer by a Beneficiary of an Interest in a Will or Trust |
The Probate law in New Jersey was revised effective 2005. Sometimes a beneficiary may want to disclaim an inheritance for personal or tax reasons. The following is the revised law or disclaimer, sometimes called Renunciation. 3B:9-2 Disclaimer of an interested party. 3B:9-2. a. Any person who is an heir, or a devisee or beneficiary under a will or testamentary trust, or appointee under a power of appointment exercised by a will or testamentary trust, including a person succeeding to a disclaimed interest, may disclaim in whole or in part any property or interest therein, including a future interest, by delivering and filing a disclaimer under this chapter. b. Any person who is a grantee, donee, surviving joint tenant, surviving party to a P.O.D. account or a trust deposit account, person succeeding to a disclaimed interest, beneficiary under a nontestamentary instrument or contract, appointee under a power of appointment exercised by a nontestamentary instrument, or a beneficiary under an insurance policy, may disclaim in whole or in part any such property or interest therein by delivering, and if required by N.J.S. 3B:9-7, by filing, a written disclaimer under this chapter. c. A surviving joint tenant may disclaim as a separate interest any property or interest therein devolving to him by right of survivorship without regard to the extent, if any, the surviving joint tenant contributed to the creation of the joint property interest. d. A disclaimer may be of a pecuniary or a fractional share, expressed as either a percentage or dollar amount, specific property or any limited interest or estate. 3B:9-3 Requirements of a disclaimer. 3B:9-3. a. A disclaimer shall be in writing, signed and acknowledged by the person disclaiming, and shall: (1)Describe the property, interest, power or discretion disclaimed; (2)If the property interest disclaimed is real property, identify the municipality and county in which the real property is situated; and (3) Declare the disclaimer and the extent thereof. b. The disclaimer shall be made within the time prescribed by section 68 of P.L. 2004, c.132 (C. 3B:9-4.2). 3B:9-4.2 Time for disclaiming. 68. a. The disclaimer of an interest in property may be delivered, and if required by this chapter filed, at any time after the effective date of the governing instrument, or in the case of an intestacy, at any time after the death of the intestate decedent, and must be delivered, and if required by this chapter filed, before the right to disclaim is barred by N.J.S. 3B:9-10. With respect to joint property, the barring of the right to disclaim the present interest does not bar the right to disclaim the future interest. b. The disclaimer of a power or discretion by a fiduciary, including an agent acting on behalf of a principal within the implied or general authority of a power of attorney, in a fiduciary capacity may be made at any time, before or after exercise. 3B:9-6 Delivering and filing disclaimer. 3B:9-6. a. The disclaimer of an interest by an intestate heir, or a person who is a devisee or beneficiary under a will or a testamentary trust or who is an appointee under a power of appointment exercised by a will or testamentary trust, including a person succeeding to a disclaimed interest, shall be filed in the office of the surrogate or clerk of the Superior Court in which proceedings have been commenced or will be commenced for the administration of the estate of the decedent or deceased donee of the power of appointment. A copy of the disclaimer shall also be delivered to any personal representative, or other fiduciary of the decedent or to the donee of the power or to the holder of the legal title to which the interest relates. The fiduciary shall promptly notify the person or persons who take the disclaimed interest, although any such failure to provide the notice required herein shall not affect the validity of the disclaimer. b.The disclaimer of an interest in property, other than property passing under or pursuant to a will or testamentary trust shall be delivered to the fiduciary, payor or other person having legal title to or possession of the property or interest disclaimed or who is entitled thereto in the event of disclaimer. Any fiduciary, payor or other person having title to or possession of the property or interest who receives such disclaimer shall promptly notify the person or persons who take the disclaimed interest, although any such failure to provide the notice required herein shall not affect the validity of the disclaimer. c.In the case of a disclaimer by a fiduciary of a power or discretion: (1)If such disclaimer is made after court authorization, the fiduciary shall deliver a copy to such person or persons and in such manner as shall be directed by the court; or (2)If such disclaimer is made without court authorization pursuant to N.J.S.3B:9-4(a), the fiduciary shall deliver a copy to all co-fiduciaries, but if there are none, then to all persons whose property interests are affected by the disclaimer. d.In the case of a will or testamentary trust or power of appointment under a will or testamentary trust, if real property or any interest therein is disclaimed, the surrogate or clerk of the Superior Court, as the case may be, shall forthwith forward a copy of the disclaimer for filing in the office of the clerk or register of deeds and mortgages of the county in which the real property is situated. In the case of a nontestamentary instrument or contract, if real property or any interest therein is disclaimed, the original thereof shall be filed in the office of the clerk or register of deeds and mortgages of the county in which the real property is situated. e.For the purposes of this section, delivery may be effected: (1) in person; (2) by registered or certified mail; or (3) by another means which is reasonably likely to accomplish delivery. L.2004,c.132,s.69. 3B:9-7. Each county clerk or register of deeds and mortgages shall provide a book to be entitled "Disclaimers," so arranged that he may record therein: a.The name of the disclaimant; b.The name of the decedent or the name of the donee of the power of appointment, the name of the trustee or other person having legal title to, or possession of, the property or interest disclaimed or entitled thereto in the event of disclaimer or the name of the donee of the power of appointment; c.The location of the property; d.The file number of the county clerk's office or the office of register of deeds and mortgages indorsed upon each disclaimer filed; e.The date of filing the disclaimer. The county clerk or the register of deeds and mortgages shall maintain in the record an alphabetical index of the names of all disclaimants stated in any disclaimer file, and also keep in his office for public inspection, all disclaimers so filed therein. 3B:9-13. An interest in property existing on February 28, 1980, as to which, if a present interest, the time for filing a disclaimer under this chapter has not expired, or if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within 9 months after February 28, 1980. An interest in property existing on the effective date of this chapter as amended and supplemented by P.L. 2004, c.132 (C. 3B:3-33.1 et al.) as to which the right to disclaim has not been barred by prior law may be disclaimed at any time before the right to disclaim is barred by N.J.S. 3B:9-10. Amended 2004, c.132, s.76. |