In re Subpoena Duces Tecum on Custodian of Records

• Decision Date: 14 May 2013
• Court: New Jersey Supreme Court
• Parties: In the Matter of SUBPOENA DUCES TECUM ON CUSTODIAN OF RECORDS, CRIMINAL DIVISION MANAGER, MORRIS COUNTY.

214 N.J. 147

68 A.3d 308

In the Matter of SUBPOENA DUCES TECUM ON CUSTODIAN OF RECORDS, CRIMINAL DIVISION MANAGER, MORRIS COUNTY.

Supreme Court of New Jersey.

Argued Oct. 11, 2012.

Decided May 14, 2013.

Mark G. Eliades, Supervising Deputy Attorney General, argued the cause for appellant State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Eliades and Paul Salvatoriello, Deputy Attorney General, on the briefs).

John J. McMahon, Chief Trial Attorney, argued the cause for respondent Alphonso Cataldo (Joseph E. Krakora, Public Defender, attorney).

PER CURIAM.

Through the Office of the Public Defender, the taxpayers of this State provide legal representation to criminal defendants who cannot afford a lawyer. The Legislature affords this publicly funded service only to individuals who lack the resources to hire private counsel. See N.J.S.A. 2A:158A–14. To determine whether a defendant qualifies for a public defender, a court staff member collects information about a defendant's financial status. That information is then collected on the third page of an intake form, known as the Uniform Defendant Intake Report (UDIR). The defendant must certify the accuracy of the financial data set forth on the form.

This case requires the Court to consider the confidentiality of a criminal defendant's UDIR form in light of an allegation that financial information set forth on the form was false. Defendant Alfonso Cataldo, indicted for financial crimes, obtained the services of a public defender after executing a UDIR form. The State presented evidence about defendant's finances that challenged the accuracy of defendant's representations about his assets on the disclosure form. It issued a trial subpoena seeking, among other information, defendant's UDIR form and other financial data provided to court staff for purposes of determining defendant's indigency. Although it used a trial subpoena, the State represented that it would not use the information it obtained in defendant's pending trial. Rather, the State sought this information to determine whether to initiate a second prosecution against defendant to charge him with false swearing and/or fraud. The trial court quashed the State's subpoena on attorney-client privilege grounds, and the Appellate Division affirmed.

We modify and affirm the Appellate Division's determination. We recognize that the financial information sought is integral to the State's responsibility to investigate an alleged misappropriation of publicly funded legal services. Nonetheless, defendant supplied his financial information after being advised in writing that his UDIR form would be used for the sole purpose of determining indigency, with the understanding that his disclosures would remain confidential. Administrative Directive 1–06, promulgated by the Administrative Office of the Courts (AOC) at our instruction, specifically represented to defendant that the UDIR form would not be used at trial or in a grand jury investigation. Accordingly, we hold that although the UDIR form is relevant to the State's investigation of defendant for false swearing and fraud, the trial court properly quashed the State's trial subpoena seeking defendant's UDIR form to prosecute him. Given the language of the Directive, we do not determinewhether defendant's UDIR form was subject to the attorney-client privilege.

We are also mindful that, in addition to the specific issue raised in this appeal, this Court has other concerns when an allegation is made that a criminal defendant has willfully misrepresented his or her financial status in order to obtain legal representation at public expense. The judiciary has an independent responsibility to insure that funds set aside for qualifying criminal defendants are not misappropriated by those who do not qualify but provide false information to obtain a public defender. See N.J.S.A. 2A:158A–15.1. For that reason, we refer the question of defendant's qualification for indigency status to the Assignment Judge for review. The Assignment Judge can rely on any relevant, competent evidence provided by any person or entity to determine whether defendant qualifies for a public defender.

We further hold that while the current Directive serves the valuable purpose of protecting disclosure of sensitive, confidential information, it improperly prevents the State from prosecuting defendants who submit false financial information to secure the legal services of the Public Defender. We thus modify the Directive to permit, in appropriate circumstances, the disclosure of defendant's financial information set forth on the third page of the UDIR form. The State can obtain that information through a valid grand jury subpoena—not through a trial subpoena, as was done here. Our decision today facilitates the State's ability to prosecute false swearing and fraud in the submission of financial disclosures to obtain public defender representation. It also ensures that a defendant's non-financial personal information, such as the medical, mental health, and substance abuse history that is also submitted to the Superior Court on the UDIR form, will remain confidential.

I.

On May 14, 2010, a State grand jury indicted defendant Alfonso Cataldo and thirty-three others. The indictment alleged that the defendants conspired together as the “Lucchese” family and as the “Nine–Trey Gangster Bloods” to commit various criminal offenses. The grand jury accused defendant of “engaging in and or conspiring to commit repeated acts of promoting gambling, possession of gambling records, theft by extortion, aggravated assault, possession of a weapon for an unlawful purpose, theft by deception, falsifying records, failure to pay gross income tax, and money laundering.” Defendant was indicted on six counts: first-degree racketeering, N.J.S.A. 2C:41–2; first-degree and second-degree conspiracy, N.J.S.A. 2C:5–2; third-degree promoting gambling, N.J.S.A. 2C:37–2; third-degree possession of gambling records, N.J.S.A. 2C:37–3(a); and first-degree money laundering, N.J.S.A. 2C:21–25.

Prior to arraignment, defendant sought and obtained representation by counsel from the Office of the Public Defender. Defendant'sapplication for public defender representation included a UDIR form. Although the record does not include defendant's executed UDIR form or indicate the precise manner by which the form was prepared, the UDIR form required defendant to certify, under penalty of law, that the information he provided was truthful. Court personnel reviewed defendant's UDIR form. Evidently determining that defendant qualified as indigent, the Criminal Division granted his application for public defender representation.

Defendant's claim of indigency generated a skeptical response from the State. Prosecutors had obtained documents during their investigation that suggested defendant owned substantial assets. The State issued a trial subpoena to the Morris County Superior Court's custodian of records, demanding the production of a broad range of documents:

[a]ll applications [including but not limited to 5A forms], writings, financial investigation reports and/or notes, mortgage records, financial documents reflecting assets or indebtedness, promissory notes or written obligations/guarantees for the provision of services of the Public Defender, as well as any other document, writing or item compiled pursuant to the inquiry made under the authority of N.J.S.A. 2A:158A–15.1, as well as the consideration of the requirements in N.J.S.A. 2A:158A–14, attributable to defendant [Alfonso] Cataldo, in connection with State Grand Jury Indictment 10–05–00057–S.

The subpoena specifically provided that the documents were to be produced “in connection with” defendant's indictment. The State has consistently represented, however, that it did not intend to use defendant's UDIR form at his pending trial, but instead to determine whether it should seek to separately indict defendant for making intentional false statements to fraudulently obtain counsel at public expense. At oral argument, the State suggested that it also sought defendant's UDIR form to determine whether to ask the judge to remove defendant's public defender attorney.

Although defendant did not object to the production of the documents, the trial court quashed the subpoena on its own motion. The court relied on State v. Blacknall, 335 N.J.Super. 52, 760 A.2d 1151 (Law Div.2000), to find that the attorney-client privilege prevents disclosure of statements made to court support staff as part of the intake form interview. It acknowledged that the attorney-client privilege would not shield information given in furtherance of a crime or fraud. It thus left open the possibility that the State could craft a narrower subpoena seeking documents only for the purpose of investigating a potential crime or fraud.

The State moved for reconsideration. It asserted that the attorney-client privilege did not prevent disclosure of defendant's UDIR form, and suggested that the trial court “may wish” to conduct an in camera review of the documents. In the alternative, the State proffered that it sought the documents to investigate whether defendant fraudulently represented his assets to obtain public defender representation.

The State presented an affidavit from Detective Noelle Hall, which outlined the State's proofs regarding defendant's income and included as attachments several documents relating to defendant's assets. One attachment identified a Florham Park property, jointly owned by defendant and his wife, Lorraine Cataldo, that was assessed in 2010 at $659,600. That property was mortgaged by defendant and his wife in 2003 at $160,000, and they secured a $100,000 home equity line of credit on the property the following year. Another attachment indicated that in 2004, defendant individually obtained a $750,000 mortgage on a property in Readington and that he paid substantial...