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Why is the State of New Jersey and the New Jersey Attorney General’s office protecting corrupt Judges Donald Venezia, Marquerite Simon and Assistant Prosecutor Mark Thonus who are involved in racketeering and rig trials in order to extort money and property from people that they have falsely accused. Why isn’t the State of New Jersey doing anything to protect the people from these criminals and racketeers.

December 19, 2010
Judicial Corruption has been institutionalized in New Jersey and it is being covered up by the Superior Court Appellate Division, The New Jersey Supreme Court the New Jersey Attorney General’s Office. The Judges in the New Jersey “Judicial System’ don’t even to pretend to follow the law or ther United States Constitution. The Judges in the New Jersey “Judicial System’ are at war with the United States Constitution and the people of New Jersey and the United States.
      This disturbing story shows how the “Judicial System” is being used to steal property under “Color of Law.”
            The dirty secret of our Judicial “System” is that we no longer have any constitutionally protected “Rights.” Our “Constitutional Rights” have been destroyed by the corrupt “New Jersey Judicial System.” The “Supreme Law of the land,” the “United States Constitution” has been replaced by the doctrine of “Judicial Discretion’ and “Absolute Immunity.” The Attorney General’s office, the Administrative Committee on Judicial Conduct, the Appellate Division and The Supreme Court, are using these doctrines to protect, cover up and legalize criminal acts committed under color of law. No where in the United States or New Jersey Constitution can are the words “Absolute Immunity” and “Judicial Discretion.” “Absolute Immunity” and “Judicial Discretion” are judge made “laws” designed to cover up their criminal activity.  
“The purpose of judicial immunity is twofold: it encourages judges to act in a fair and just manner, without regard to the possible extrinsic harms their acts may cause outside of the scope of their work and it protects government workers from harassment from those whose interests they might negatively affect.”

Judicial Immunity” is now being used to legalize criminal activity and racketeering. A person can now be indicted and convicted of a crime which never occurred. The New Jersey Appellate Division and the Supreme Court will do nothing to protect your Civil Rights unless you are wealthy like Jayson Williams or a notorious murderer like Melanie Maguire, then you might stand a chance of getting a fair trial. Our most fundamental civil rights, including the “Presumption of Innocence,” the right to a “Fair Trial “and the right to “Due Process of Law.” have been eviscerated in order to protect judicial corruption. I found this out the hard way when I was indicted on an allegation that did not even amount to a crime.
      The Constitution of the United States has become a “solemn mockery” under the present “judicial system.” This shift has resulted in show trials where the outcome is a preordained guilty verdict, and the right to a “fair trial” has lost all meaning.
      On June 22nd 2001 I was arrested on a charge that the Assistant Chief Prosecutor of Passaic County called “bullshit.”

      I was falsely accused and indicted for making a terroristic threat against my sister, who herein after shall be referred to as the “alleged victim.”
     The “State of New Jersey” may have successfully convicted me of a crime I did not commit, but it was at the cost of the integrity of the New Jersey Judicial system. The “State” conspired to convict an innocent person of a crime in order to cover up the criminal activity of the corrupt Judges and prosecutor who stole my father’s estate. The Judges and Prosecutor reinterpreted the “terroristic threat“statute in a way that contradicted the “legislative intent” of the law.
      The New jersey Attorney General’s office is a co-conspirator in allowing a wrongful conviction to occur and are protecting judges involved in extortion, conspiracy, fraud and racketeering. The judicial “system” and Attorney General’s office have allowed this criminal activity to continue unabated.
       I am demanding a Grand Jury investigation into this matter, and impeachment hearings on the judges involved, judge Donald Venezia, former judge Marguerite Simon and Bruce Gaeta, assistant prosecutor Mark Thonus, Bergen County Bar Association President Joseph Rem and his cohort Robert Zeller.
        In the appeal of my unlawful eviction and removal as executor my lawyer and former Bergen County Assistant Prosecutor, Ron Schwartz said the following in my brief to the Appellate Division:

In this case, the defendant Terence Culpepper was evicted from his home and removed as Co-executor of his father’s estate, without even a passing nod to the principles of elementary due process.

       Former Essex County Assistant Prosecutor and Chairman of the New Jersey Defense Lawyer’s Amicus Committee, Leslie Stolbof Simemus handled the appeal of my criminal conviction and said the following in her brief:
              Before his trial on manslaughter charges, Jayson Williams was convicted of a previous weapons charge and was a sentenced to do public service announcements. When I was accused, and not even indicted I was summarily evicted from my home in violation of the “Anti-eviction Act and the Constitution of the United States and the Constitution of the State of New Jersey.

“The state successfully but impermissibly painted Terry Culpepper as armed and dangerous, through hearsay concerning the dispatcher’s comments to the police, irrelevant testimony about conducting a “felony stop” because of  the weapons involved,” and irrelevant testimony concerning weapons which were never even seen by the victim. The jury’s ability to evaluate Maryjean Culpepper’s credibility – the only state witness with actual knowledge of what happened – was eviscerated before she even took the stand, to the extreme detriment of Terry Culpepper.”

      When Jayson Williams filed a “Petition for a Writ of Certiorari” with the New Jersey Supreme Court to hear the matter of “irrelevant evidence “that was used against him in his trial his Petition was granted. When I filed a Petition with the New Jersey Supreme Court to hear the matter of “irrelevant evidence” that was used against me at my Trial, my Petition was denied.
     The theft of my father’s estate was committed by judges who acted under “color of law” and without jurisdiction. The New Jersey Superior Court Appellate Division, The New Jersey Supreme Court and the New Jersey Attorney General’s office have been instrumental in covering up the criminal activity of lower court judges Donald Venezia, Marguerite Simon and Bruce Gaeta. This cover up has come at great personal expense to me, my family and the taxpayers of the state of New Jersey. I have spent tens of thousands of dollars to defend myself against false criminal allegations and faced several years in prison in what was an ultimately futile attempt stop the theft of my father’s estate. I was convicted and was thrown out in the street while my father’s house sat vacant for months. The estate was stolen by judges Marguerite Simon, Bruce Gaeta, Donald Venezia, assistant prosecutor Mark Thonus, Bergen County Bar association president Joseph Rem and his cohort Robert Zeller.
    When the New Jersey Superior Court Appellate Division instructed the Attorney General’s office to file a reply brief in response to the appeal of my criminal conviction they declined to file a response. Boris Moczula, the Assistant Attorney General Chief referred it to the Bergen County Prosecutor’s office for “handling.”
    The Bergen County Prosecutor’s office filed a response which was inaccurate, unresponsive and riddled with irrelevant case law. The Prosecutor’s office wrote off their prosecutorial and judicial misconduct as “harmless error.” The actions of Boris Moczula, raises an interesting question. Why didn’t his office “handle” the matter since the brief raised significant constitutional issues? Isn’t the New Jersey General’s office supposed to be protecting the civil rights of the people of the State of New Jersey and protecting them from criminal activity?
    One of the most important issues raised in my appeal was the “failure” of the Trial Court to allow me to present a defense. The Appellate Division refused to address that issue and the other Constitutional issues we raised. They affirmed the conviction by claiming:

      “….defendant’s arguments lack sufficient merit to warrant discussion in a written opinion.”

    The New Jersey Judicial “System” has become racketeering enterprise which the mafia would envy. It is designed to protect its members from accountability and prosecution for their criminal activity. After I was indicted I was given a choice, which was really no choice at all. Accept “Pretrial Intervention” “PTI,” which required me to give up my rights as co-executor of my father’s estate or face a trial and several years in prison. I knew that I had not committed a crime and believed that I would be exonerated by a jury. However, I underestimated the lengths the prosecutor Mark Thonus and the judge Donald Venezia would go to in order to obtain a conviction.
    Thonus and Venezia rigged the trial and manipulated the jury into returning a “guilty” verdict. I knew from the beginning of the trial that I was doomed when Venezia refused to allow any exculpatory evidence to be admitted. My suspicions were affirmed when the Thonus at one point in the Trial asked Venezia if he was “ready to rock and roll” to which Venezia responded affirmatively. The refusal by Judge Venezia to allow me to present a defense was the final nail in my coffin.
     In New Jersey it is unconstitutional but apparently now “legal” to refuse to allow a defendant to present a defense.
    The Attorney General’s office, the Administrative Committee on Judicial Conduct, the Appellate Division and The Supreme Court, and Judge William Martini at the Federal District Court in Newark are using the doctrines of “absolute immunity” and “judicial discretion” to protect criminal activity committed under color of law. Innocent victims like me who lack influence or connections, but who have assets which can be “seized” by the “State” are selectively prosecuted in order to steal their property. I was prosecuted because I was the only one who stood in the way of the “Court’s” conspiracy to confiscate my father’s estate. The court appointed “administrator” Joseph Rem sold the property on June 3, 2002 for $256,000.
     Instead of investigating the criminal acts committed against me and my family, the judicial “system” and law enforcement establishment have defended them. The Superior Court Appellate Division are protecting criminal activity by claiming that judges have “jurisdiction” even when they failed to obtain it according to the law and allowing the judicial “system” to get away with extortion, conspiracy and numerous Civil  Rights violations. The Attorney General’s Office is protecting Criminal activity by failing to investigate my Civil Rights complaint and protecting the judges involved. The New Jersey Supreme Court is protecting criminal activity by refusing to “act” even when they have a “duty to act” in order to protect my Civil Rights and the Constitutional Rights of my brothers and sisters, the residuary beneficiaries of my father’s estate.
     After Judge Simon illegally evicted me, removed me as co-executor and effectively confiscated my father’s estate I filed a Notice of Appeal which divested Judge Marguerite Simon of jurisdiction. I also filed a Notice of Lis Pendens on the property in order to prevent the property from being sold prior to the appeal being heard. When my Lawyer Ronald Schwartz asked her how she obtained jurisdiction to remove the Notice of Lis Pendens Simon refused to answer.
    When this matter was raised on Appeal the Appellate Division claimed the matter was “moot because the property had been sold.”
    This case shows how the Judicial “system” successfully but illegally removed me as co-executor of my father’s estate by filing false criminal charges against me and violated the rights of the remaining the residuary beneficiaries by refusing to allow them to qualify as executor of my father’s estate in violation of the laws of the State of New Jersey.
    When I filed a Civil Rights complaint Federal District Court Judge William Martini dismissed my complaint with prejudice claiming there was no evidence of “perjury,” “misconduct” or “corruption,” involved in my conviction. In fact my conviction was riddled with “perjury,” “misconduct” and corruption””conspiracy,” “racketeering” and “fraud.” Martini even made up facts by claiming that I threatened the “alleged victim,”at “gunpoint.”
     On August 10, 2001 the return date for the “alleged victim’s” Order to Show Cause to have me removed as co-executor, practically the first thing out of Judge Simon’s mouth and without a word of testimony being taken. Simon said:

                                                   “I’m thinking about putting in a third party administrator.” 

     After Judge Simon illegally removed me as co-executor and evicted me, the attorney for the “alleged victim,” former Bergen County Assistant Prosecutor Peter Jeffer started laughing  and had to be admonished by Simon to stop.
   Judge Simon not only refused to allow the remaining residuary beneficiaries to be informed that they were entitled to the opportunity to qualify as executor according to law. Judge Simon then appointed Joseph Rem, the president of the Bergen County Bar Association as the Administrator of the estate without even allowing the remaining residuary legatees to be informed that such an event would occur.

The following is an excerpt from the appellate brief that was filed by my lawyer Ronald Schwartz:

     “The hearing is a model of a failure to provide due process and a failure to provide any factual findings as a basis for the Trial Court’s determinations. It is clear from the transcript of the hearing that the court had already made up its mind to remove the defendant as both co-executor and as tenant without hearing a word of testimony on the contested issues between the parties. Immediately, at the beginning of the hearing, counsel for the Plaintiff hands up to the court a criminal complaint that had recently been filed against the defendant and to which he had plead not guilty. Without anything further and without even giving the defendant a chance to speak, the court immediately concludes: 
THE COURT: I have enough for my purposes, I don’t think we need to go any further.
    Immediately thereafter, again without seeking any comment from the defendant, or any testimony from anybody, the Trial Court informed the defendant that the house was going to have to be sold and that he was going to have to leave the premises.
    Defendant then explains that the septic tank system has failed and that the house cannot be sold until a new septic system is installed, the court responded by asking the defendant how quickly he could vacate the premises and telling him he had better find a new place to live quickly. By this time, the defendant’s head must be spinning because no one has suggested any grounds for his removal at a tenant under N.J.S.A. 2A:16-61-1.
     Further grounds for head spinning on the part of the Defendant occurs when the Trial Court then immediately rules:

   The Court: I want an order that he is to vacate the residence no later than September 7. 
    This is immediately followed by the Trial Court’s second determination that:
In the meantime, I am satisfied that quite obviously that under 3B:14-21. It is absolutely mandated that Mr. Culpepper be removed as co-executor. We point out that both of the determinations are made by the Trial Court at this hearing without testimony being taken on any of the contested issues, without any grounds for removal of the Defendant as a tenant having even been pleaded, and without the Pro Se Defendant even being asked to comment on whether these determinations should be made. Apparently, the only thing that the Trial Court wanted to hear from the Defendant was how soon he could vacate the premises. Neither did the court require any testimony from the Plaintiff regarding the contested issues set forth in the Verified Complaint, Answer and Counter-Complaint.
     Things then get even worse on the issue of due process. The Trial Court, having just ordered the removal of the Defendant from his home and as executor or of his father’s estate both without a Trial and an opportunity to be heard, then advises in the Defendant that he should get an attorney to represent him in the matter. When the Defendant then asked for adjournment of the hearing to take the court up on its suggestion, the Court denies the request. When the Defendant then asks the court for an explanation of what the grounds are for his removal as Co-Executor, the court merely says:” thank you, that’s it.” And ends the hearing. We came only imagine that the Defendant must have left the court that day wondering what happened to him.
    We also note that the transcript of the August 10th hearing does not contain a single word from the Trial Court as to what the facts she relied upon in determining that the Defendant should be removed as tenant and as executor.
    Lastly, while the Trial Court recited N.J.SA 3B:14-21, the removal for cause Statute for fiduciaries, the Trial Court wholly failed to indicate which, if any, of the several grounds listed in that Statute for removal applied to the Defendant in this case. Nor did the Trial Court make any findings indicating that there was no genuine issue as to any material fact in the Cross-Complaints for Removal before it, a finding required by Rule 4.67-5 to be made by the Trial Court before the court can render judgment without the hearing of evidence.
    The Trial Court signed in order on August 20, 2001, ordering the Defendant to remove himself permanently from his residence no later than September 7, 2001 and to remove all of his personal belongings at that time, threatening sanctions if he did not remove himself by that date. The order also” immediately removed the Defendant as Co-Executor or of his father’s estate.”
    Judge Simon claimed she had “enough for her purposes.” Her purposes have become abundantly clear, my removal and the confiscation of my father’s estate under color of law.

The following section is an abbreviated, but mostly verbatim transcript with case citations omitted which was filed with the New Jersey Appellate Division:

     “The Defendant then hired two (2) attorneys to be co-counsel for him in this case. Bernard O’Connor, Esq., was engaged to handle the issue of the Defendant’s removal as executor while Ronald’s Schwartz Esq. the attorney on this appeal was engaged to handle the issue of his removal as a residential tenant without cause under and N.J.S.A. 2A:18-61-1. Mr. O’Connor then filed a Notice of Motion for reconsideration of the court August 20, 2001 order on or about September 11, 2001. Mr. Schwartz then filed a motion by way of Order to Show Cause asking the court to vacate the order of removal of the Defendant from the subject premises dated August 20, 2001, pursuant to R. 4:50-1 (d) or (f) on September 17, 2001. In a certification in support of the O’Connor Esq. Motion for reconsideration, the Defendant asserted that the Trial Court had no jurisdiction to order his removal as a tenant from his home under N.J.S.A. 2A:18-61-1 without the establishment of cause pursuant to that statute. Additionally, the Defendant again responded to the Plaintiff’s allegations regarding the failure to set up an estate account and cooperate in the sale of the home, indicating that the allegations of the sister were false.
       In the Schwartz motion to vacate the order of August 20, 2001, the Defendant’s position was that the court lacked jurisdiction to hear the request seeking the Defendant’s removal from his residence and no cause for eviction had been either pleaded or proved under N.J.S.A. 2A:18-61-1. Additionally, the Defendant asserted that the Court also lacked jurisdiction because the complaint for removal failed to allege the service of a Notice terminating the Defendant’s tenancy at the subject premises, a jurisdictional prerequisite to the Court entertaining the request for a judgment for possession under N.J.S.A. 2A:18-61-1. Lastly, the Motion took the position that the Trial Court had failed to provide the Defendant with a Plenary Hearing either of the contested allegations underlying the Plaintiff’s request for the Defendant’s removal as Co-Executor or the request for removal of the Defendant from his residential tenancy.
      The Court determined to hear both Motions on September 21, 2001. The Plaintiff did not file any responding papers to either of these motions. However, the Plaintiff did eventually file an answer to the Defendant’s counterclaim for her removal as Co-Executor or as well as a certification in opposition to that request which basically denied all the Defendant’s allegations for her removal. We note, again, however that none of the pleadings submitted by the Plaintiff ever denied that the Defendant was a residential tenant at the subject premises.
     The Defendant’s due process rights fared no better at the hearing held before the Trial Court on September 21, 2001. At this hearing, the Defendant was represented by both Counsel mentioned above, during this hearing, the Trial Court made the startling admission that it had not reviewed any of the Defendant opposition papers prior to the Court removing him as tenant and as executor or an August 10, 2001. The reason given for this glaring omission was that the Defendant’s papers had come in late and they were “unclear”. The Court indicated that it had removed the Defendant as Executor at the first hearing because it was satisfied that the removal was “more than appropriate under the circumstances” and because she did not have any papers filed that she could read in opposition. This was contradicted by the Trial Court own statement at the prior hearing that it had received the Defendant’s Cross-Complaint and Answer and that the matter was contested. From these statements, one can only conclude that the Court had evicted the Defendant from his home and removed him as Executor or of his Father’s Estate without reviewing any of the Defendant’s opposition papers or giving him an opportunity to respond to the August 10, 2001 hearing.
     If the Court had received the Defendant papers late and had not had the opportunity to review them a circumstance not indicated by the Court to be (a circumstance not indicated to be problem that the first hearing on August 10th) it should have adjourned the return date in order to accommodate that review. The Defendant was not even informed on August 10, 2001 that his papers were late and had not been reviewed. It is simply astonishing that the Trial Court would order the Defendant’s removal from his home and his removal as Executor of his father’s estate without a trial and, worse, on an essentially ex-parte basis.
      Again, as a hearing on September 21, 2001, the Court refused to hear any testimony on the many disputed factual issues in the case. When one of the beneficiaries, Gregory Culpepper, asked to give testimony relating to the Defendant’s cross-complaint for removal of his sister as Co-Executor, the Court refused to hear it.”

End of this section of the brief. The rest of the brief is included at the end of the story:

      My father was a school teacher who worked two jobs for most of his life in order to support his family which included nine children. His estate consisted of a house that he built with the help of my grandfather over 50 years ago, a $12,000 insurance policy and some personal property. The judicial “system” and prosecutor were determined to steal the his estate even if it meant convicting an innocent person in the process.
     I was the only person standing between the Court and the theft of my father’s Estate. In order to cover up the theft of my father’s estate members of the judicial “system” and law enforcement establishment conspired to make sure that I would be convicted on false criminal charges in a “show Trial.”
       I was charged with making a “terroristic threat” and “possession” of “illegal high capacity ammunition magazine” and faced several years in prison.
      I refused to accept a “plea bargain.” In fact the “plea bargain” was  was a thinly veiled extortion attempt. It would have required me to give up my rights as co-executor of my father’s estate. My refusal caused the judge and prosecutor to rig the trial in order to obtain a conviction and cover up the theft of my father’s estate.
      I was facing several years in prison based on the criminal charges I was facing, but I was determined to have my day in Court. At one point the prosecutor Mark Thonus called my lawyer Frank Pisano and offered to drop all criminal charges if I dropped a civil rights complaint I filed against Judges Simon and Gaeta. Dropping my civil rights complaint would have meant forfeiting my right to be reinstated as Co-Executor of my father’s estate. 
     When my sister Karen told the alleged victim she didn’t believe the alleged threat occurred, the alleged victim sent her the following message on her birthday:
mjc1218@optonline.net wrote:

HEY KILLER, THAT’S YOUR NEW NICKNAME….HAPPY BIRTHDAY! I WAS OUT IN SAN LUIS OBISPO FOR A CONFERENCE ABOUT A MONTH AGO AND I THOUGHT ABOUT VISITING YOU AND THEN I THOUGHT ABOUT KILLING YOU. I AM GOING TO KILL YOU! I AM ON MY WAY OUT THERE! YOU AND LEONIE ARE THE WORST SISTERS ANY GIRL COULD EVER HAVE!

-HAVE A NICE DAY!

      I may not have any psychiatric training, but I find it incredible that the “State” would rely on the testimony of a person who appears to be mentally unstable in order to convict a person where the potential punishment is several years in prison. It is especially disturbing that the alleged victim would start her message by accusing my sister Karen of being a “killer” which is an example of the hysterical state  of mind of the alleged victim. Yet  those hysterical ramblings were enough to to have me imprisoned for several years. It is extremely ironic that the alleged victim then goes on to threaten to kill Karen in a “terroristic threat,” the same type of criminal allegation that the “state” used to indict and convict me.

Criminal law
Prosecutor is obligated, legally and ethically, not to pursue the innocent; he is an officer of the Court, obligated to present the truth, not the opposite.

     The Prosecutor presented false evidence and manipulated the Grand Jury in order to obtain an indictment. The alleged victim, the only person with actual knowledge of the alleged threat never even appeared before the Grand Jury.
     Thonus not only filed false criminal charges against me. Thonus also lied to the Grand Jury and Trial Juries and suborned perjury. There was no investigation of the alleged crime. The facts of the case and the “legislative intent” of the law were violated. The allegations as testified to did not constitute a “terroristic threat,” according to the law. The alleged threat was “conditional” and “transitory,” however that did not stop me from being indicted, prosecuted and convicted.
      No reasonable person would have believed the alleged victim due to the fact she gave at least three completely different versions of the alleged threat. She claimed under oath or under penalty of perjury on different occasions that the alleged threat happened in different rooms of the house, including the bedroom, the kitchen and the living room. These conflicting statements were given to the Thonus in discovery prior to trial; however Thonus ignored them. These actions and the failure of Judge Venezia to allow me to present a defense insured my conviction.
 
Why did the police, prosecutor and Attorney General’s office fail to investigate the alleged crime?

Why didn’t the prosecutor and Grand Jury compel the testimony of the alleged victim?

Why didn’t the Grand Jury investigate the alleged crime, instead of acting like a rubber stamp for the prosecutor? 

Why did the judge violate my right to present exculpatory evidence? 

Why did the prosecutor and judge rig the trial and suborn perjury in order to convict me?  

Why did Judge Venezia refuse to allow me to present a defense?
 
Why did Boris Moczula the Assistant Chief Attorney, Chief of the Appellate Division decline to file a response to the Superior Court Appellate Division request to file a responding brief with regard to my conviction by telling the Bergen County Prosecutor’s office to “handle” it?.

Why did the Appellate Division affirm my conviction without discussing the constitutional issues raised in the appeal of my criminal conviction?
 
Why did the Attorney General’s office fail to investigate my Civil Rights Complaint against Judges Gaeta and Simon?
 
Why didn’t the Attorney General’s office investigate the other parties involved in the theft of father’s estate and my wrongful conviction?
 
Why was I evicted and removed as Co-Executor of my father’s estate without “Due Process”? 

Why was I allowed to be evicted in violation of the anti-eviction act and the Fifth Amendment of the Constitution? 

Why did the appellate division fail to protect my right to “due process” and refuse to discuss the issue of Judge Simon’s lack of jurisdiction to evict me?

Why did the Appellate Division fail to protect the rights of the residuary legatees?

Why did the appellate division refuse to intervene and prevent Judge Simon from selling the property while my appeal my appeal was pending before the appellate division, even when specifically asked to do so?
 
Did the Superior Court Appellate Division and New Jersey Supreme Court close ranks in order to protect the criminal activity of a lower Court judge?
 
Why did the a Superior Court Appellate Division and the New Jersey Supreme fail to protect the most fundamental civil rights guaranteed by the constitution?

Why was Superior Court Appellate Division Judge John Wallace who co-wrote the opinion which violated my rights and the rights of the remaining residuary legatees appointed to the New Jersey Supreme Court?  

Why did the state law enforcement establishment and judicial system refuse to intervene even after it was clear that a great injustice was occurring?  

Why did the New Jersey Supreme Court and Attorney General’s Office refuse to intervene even when they were aware that a wrongful conviction had occurred? 

Among the larger issues here are why this was allowed happened at all?

       My father passed away on May 12, 2001 from complications from dementia. I had been caring for my father in the house he owned and I shared with him in Oakland, New Jersey. When his condition had deteriorated to the point where I was no longer able to care for him by myself, we moved him to my sister Leonie’s house in Virginia. Leonie was a registered nurse and the best qualified member of the family to care for him at that time.
     My younger sister Maryjean the alleged victim and I were named Co-Executors of father’s estate. I was living in my father’s house at the time which I had been renting from the estate.
      The alleged victim was determined to have me evicted and sell the house immediately upon the death of my father. I told her I did not think that it was possible to sell the house immediately or a good idea due to the condition of the property. The house was approximately 45 years old at the time and needed to be repaired. My brother’s and I wanted to repair the septic system which had failed and update the kitchen and bathroom which were badly in need of renovations in order to make more salable and get a higher price. On the other hand the alleged victim, because of her financial problems wanted to the sell the house immediately without making any repairs.
        Even though I had been named Co-Executor of the estate the alleged victim took it upon herself to hire former assistant Bergen County prosecutor Peter Jeffer to probate the estate without consulting me.
       I had given the alleged victim a key to the house. Shortly thereafter, and without notice she entered the house which I was still living in and started removing estate property and stealing my personal property.
       On or about June 19, 2001 I left a message on the alleged victim’s answering machine telling her that I had changed the locks and she would no longer be allowed into the house unless I was present. I asked for 24 hours’ Notice before she came over. I lived there. I was paying rent and I was entitled to all the common law and statutory protections of any legal tenant. My lawyer Ron Schwartz was a former assistant Bergen County Prosecutor, who specialized in landlord tenant law agreed with me. I also sent the alleged victim a certified letter with these demands. Then the alleged victim then left a string of profane messages on my answering machine demanding that I vacate the premises immediately and threatened to take action against me.
       A few days later the alleged victim called the police and showed them a Surrogate’s Certificate. Based on the surrogate’s certificate the police erroneously concluded that she could enter the house at any time without regard to my rights as a tenant. A Surrogates Certificate has no effect existing residential tenancies. It only makes the person named in it responsible for 
the administration of the estate. The administration of the estate was a civil matter, yet my sister called the police and used them to force her way into the house.
      On June 22, 2001, I was watching sitting at home watching television when three Oakland police officers, Captain Hammerle, and officers Piercy and Fiore trespassed on to the property and showed up at my door without Notice. The police demanded that I let the alleged victim into the house and threatened to arrest me if I did not comply.
      The police had no authority or permission to be on the property. Never the less, I explained to the police the problem I was having with the alleged victim’s unauthorized removal of property and theft of my personal property. I told them that she was not entitled to unannounced visits. This argument went on for approximately 10 to 15 minutes. During this time the alleged victim was waiting at the top of the driveway. The police apparently told her to wait there while they questioned me. While I was talking to the police the alleged victim started screaming from the top of the driveway. The police had to tell her to be quiet.

2A:39.1 Unlawful entry prohibited

No person shall enter upon or enter any real property or estate therein and detain and hold the same except where entry is given by law, and then only in a peaceable manner, with regard to any real property occupied solely as a residence by the party in possession such entering shall not be made in any manner without the consent of the party in possession unless the entry and the detention is made pursuant to legal process as set out in 2A: 18-53 et seq. Or 2A 35-1 et seq.

      Not withstanding the fact that the police should not have been on the property in the first place. The police should have stopped questioning me and left the property and   forced the alleged victim leave the property also because no one is entitled to enter another person’s dwelling unless they do so “peaceably,” according to the law. However, the police did not do that. Officer Fiore demanded that I let the alleged victim into the house while his cohort Captain Hammerle threatened arrest you me if I did not comply with his order.
      At this point an unconstitutional seizure of the property occurred without a warrant.


A “seizure” of property, we have explained, occurs when “there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984). In addition, we have emphasized that “at the very core” of the Fourth Amendment “stands the right of a man to retreat into his own home.” Silverman v. United States


“nowhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is involved . . . . Therefore, we have been adamant in our demand that absent exigent circumstances a warrant will be required before a person’s home is invaded by the authorities.”


“An unlawful entry or search of a home does not end when the government officials walk across the threshold. It continues as they impose their will on the residents of the home in which they have no right to be.”


“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
-United States Constitution, Amendment IV.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.”
-New Jersey Constitution, Article 1, Paragraph 7


      Once the alleged victim entered the house she let loose an profanity laden tirade. The alleged victim said in her complaint:


“I started yelling at Terry”


Prior to her arrival at the house she left the following message on my answering machine:


“Hello, Terry dear brother. Guess what? I can come in the house anytime I want and you can’t stop me. How about that? I’ll see you soon, baby. Bye-bye.”

In her complaint she also said:


“I said Terry, you better get use(d) to the fact that I will be coming over here whenever I want day, any time I want day or night to do what I have to do.”

She also said in her complaint:


” Terence had left a message on my answering machine stating that I was not allowed to go into my father’s house unless he was there and said that I had to give him 24 hours’ Notice or I could not come in.”
    The police had effectively given the alleged victim permission to enter my home “any time of day or night, “despite the fact that she did not live there.
     I was renting the house from the estate at the time and paying the real estate taxes and insurance on the property. Most people would not find 24 hours notice to be an unreasonable request, and it is one that the alleged victim previously agreed to. According to my lawyer Ron Schwartz it is a reasonable and lawful demand under the common law. Because of the alleged victim’s unauthorized removal of estate and theft of my personal property I thought it would prudent to remove the firearms before they were also stolen.


Shortly thereafter the alleged victim called the police and alleged that I threatened to kill or shoot her depending on which of the several different versions of the alleged threat since she never told the same story twice. I was subsequently arrested by the police. I was arrested despite the fact that the police never conducted any investigation into the alleged crime.
      Judges Simon and Gaeta used the judicial system as a pretext to remove me as co-executor and evict me from my home which was part of my father’s estate.
      The alleged victim hired former Bergen County assistant prosecutor Peter Jeffer who filed an Order to Show Cause to have me evicted and removed as Co-Executor of my father’s estate The hearing on the Order to Show Cause was scheduled to be heard on August 11, 2001 at 9:00 am. After waiting close to an hour my brother Greg who also attended the hearing decided to go the bathroom. After he went the bathroom Judge Simon finally made an appearance. By the time Greg got back from the bathroom in what was an “essentially ex-parte,” proceeding I had already been evicted and removed as Co-Executor of my father’s estate.
     After Judge Simon signed the order evicting me and removing me as Co-Executor, I filed a “Motion for Reconsideration,” On the return date Judge Simon removed My sister as Co-Executor, and appointed Joseph Rem Esq. to administer the estate. This action was taken without notifying the remaining six residuary legatees according to state law. Judge Simon denied the remaining residuary legatees the opportunity to qualify as Executor of the Estate according to state law.
      Judge Simon’s actions in refusing to allow any of the remaining six residuary legatees to qualify as executor were a violation of state law, no one in judicial system has ever held her accountable. Simon, never cited the legal basis for the actions she took, as required by Court Rules in removing me or my sister as Co-Executors. Nor, did she ever explain her reason for refusing to allow any the remaining six residuary legatees to qualify as Administrator of the Estate without notice to the remaining residuary legatees. The Appellate Division covered up this requirement by attributing reasons after the fact which were not in evidence or ever cited by Simon.
        After Simon removed me as Co-Executor of my father’ estate and evicted me I appealed her decision. My lawyer Ron Schwartz put a Notice of “Lis Pendens” on the property in order to notify any potential buyers that “litigation is pending” on the property.
         When a potential buyer of the property was notified by his lawyer that they could not complete the sale of the property unless the Notice of Lis Pendens was removed. Simon’s “Court appointed” administrator Joseph Rem, complained to Simon. Simon quickly and without jurisdiction ordered the Notice of Lis Pendens to be removed even  though the sale of a property does not void the existing residential tenancy. 


I raised that issue and Simon’s removal of the Notice of Lis Pendens along with several other’s by way of appeal to the New Jersey Superior Court Appellate Division and by way of a Petition for a Writ of Certiorari to the New Jersey Supreme Court. 
     A lower Court judge is normally divested of jurisdiction by the appellate division when a Notice of Appeal has been filed with the Appellate Division. The “Notice of Lis Pendens” is meant to protect the property that is the subject of litigation so as not to “destroy” the property that is the subject of the appeal. However, this did not stop Judge Simon.
     When Judge Simon was asked how she obtained jurisdiction to remove the “Notice of Lis Pendens” she refused to answer the question.
     In order for a judge to obtain jurisdiction to evict a residential tenant a “Notice to Quit,” must first be served according to New Jersey law. Judge Simon never obtained jurisdiction to evict me because no “Notice to Quit,” was ever served. The service of a “Notice to Quit,” is a “jurisdictional prerequisite” in order to obtain jurisdiction according to the law. No “cause of action” in the Anti-Eviction Act was ever pleaded as to why I should be forced to vacate the premises. A criminal allegation is not a recognized “cause of action” to evict a residential tenant under the Anti-Eviction Act. The Order to Show Cause filed by the alleged victim set forth no grounds for my removal as a tenant from the premises under N.J..S..A. 2A: 18-61.1(the Anti-Eviction Act) or any other statute.
     The New Jersey Supreme Court refused to grant my Petition for a Writ of Certiorari, and failed to report to law enforcement authorities Judge Simon’s lack of jurisdiction to evict me. My eviction by Judge Simon was criminal act due to the fact that she never obtained jurisdiction to hear the issue. No “Notice to Quit” was ever served according to state law and she lacked jurisdiction to remove the “Notice of Lis Pendens.”
       Judge Simon ordered my eviction without jurisdiction and on an “essentially ex-parte basis” in violation of the New Jersey Anti-Eviction Act, the Fifth Amendment and my right to due process. The Appellate Court Judges John Wallace and Axelrad refused to discuss the issue of Judge Simon’s lack of jurisdiction. In their opinion affirming judge Simon’s order Judges Wallace and Axelrod dismissed the issue as being “Moot,” due to the fact that the house had been sold.
      I think it is now clear why the Appellate Division refused to address this issue. Simon lacked jurisdiction for the actions she took, and because she acted without jurisdiction, the actions she took were criminal acts. Instead of reporting these criminal acts as required by law, Wallace and Francine Axelrad covered up Simon’s crimes by claiming the issue was “moot.” When I then filed a Petition with New Jersey Supreme Court with regard to the issue. The New Jersey Supreme Court refused to hear the issue.
      The refusal of the Appellate Division to discuss the issue opens the door to similar abuses against the people of New Jersey. No tenant is safe now thanks to Judges Simon, Gaeta, Wallace and Axelrad.
      My eviction was a criminal act by a “private citizen” which is being covered up by the Attorney General’s office, the Administrative Committee on Judicial Conduct, the Appellate Division and the Supreme Court of New Jersey.


“The lower Court may take no action which would destroy or impair the subject of the appeal.”

“* * * the entire purpose and object of the appeal is to preserve such rights and property from the ill effects of the decision that is challenged. * * * the very essence of the remedy by appeal is to prevent, for the time being, the appellant from this execution of the existing decree * * * A decree cannot be used detrimentally to the appellant pending appeal, for the plain reason that such a use will, for every practical purpose, defeat the appellate procedure.”

       Once an appeal is filed with the appellate Division, the Trial Court is divested of jurisdiction. Judge Simon’s act of granting the Motion to remove the Notice of Lis Pendens removed from the estate the very asset that I was seeking to recover possession and control of in my appeal.
      Judge Bruce Gaeta, was a criminal Court Judge and signed a warrant for my arrest the next day based on Judge Simon’s illegal eviction order. Gaeta was subsequently removed from that position after making inane and insensitive comments about a victim of child molestation.
       Gaeta lacked jurisdiction to enforce Simon’s order removing me as a tenant, which was a “Civil” proceeding. Because Simon never obtained jurisdiction according to the law, Gaeta’s  lack of  jurisdiction to enforce Simon’s order is due to the fact that he was a criminal Court judge and had no jurisdiction to enforce an order from the “civil Part” of the law divison.

“… an act done in complete absence of jurisdiction cannot be a judicial act. It is no more than the act of a private citizen pretending to have judicial power which does not exist at all.”

       On appeal Judges Wallace and Axelrod refused to discuss the issue of jurisdiction in their opinion affirming judge Simon’s order, even though none of the procedures in the “Anti-Eviction Act” were met.
       My eviction was a criminal act by a “private citizen” which is being covered up by the Attorney General’s office, the Administrative Committee on Judicial Conduct, the Appellate Division and the Supreme Court of New Jersey. The Appellate Court covered up the criminal acts of Simon, a lower Court judge by calling the issue “moot.”
      Calling Simon’s lack of jurisdiction “moot” allows Judges to commit similar criminal acts against the people of New Jersey. The failure of the Appellate Division to protect my rights and the rights of other litigants under similar circumstances invites further abuses. Apparently all constitutional violations now become “moot” once the judicial racketeers have stolen a victim’s property.
      On 9/11/01 I was still living in the estate property. My lawyer Ron Schwartz told me I still had the right to live there because Judge Simon never signed a “Warrant for Removal,” or a “Writ of Possession,” and none was ever entered in this matter.
     The only way the landlord can evict the tenant is if a special court officer with a legal court order called a warrant for removal comes out himself and does the eviction. And even before the special court officer can do the eviction, he must give a copy of the warrant for removal to the tenant (or leave a copy on the tenant’s door) at least three days before coming out to do the actual eviction. The law says that the warrant for removal must tell the tenant many things, including that self-help evictions by landlords are now disorderly person’s offenses. The warrant must also let the tenants know the earliest day on which the special court officer can come back to do the eviction. This procedure never occurred, yet Judges John Wallace and ChrisFrancine Axelrod affirmed my eviction.
       On 9/11/01 the World Trade Center had just been attacked and as the tragedy at Ground Zero was unfolding the Courthouse was closing early. My lawyer Ron Schwartz told me that because no one had signed a “Writ of Removal” I was not required to vacate my residence. Notwithstanding the fact that Judge Simon lacked jurisdiction to evict me and I had not even been indicted at that point Judge Gaeta was determined to evict me in order to steal the estate property.
       Because Judge Gaeta was a criminal Court judge he lacked jurisdiction to enforce Simon’s order because it was issued by the “Civil Division.” However, that did not stop Gaeta from making it his last order of business for the day to evict me. When I told Gaeta that I had not vacated my residence based on the advice of my lawyer he got angry, increased my bail and ordered me to vacant my home “immediately.” Gaeta claimed it was a condition of bail, if so it is probably the first time on record that anyone was evicted in a non-domestic dispute or without violating any of the reasons enumerated in the Anti-Eviction Act.

New jersey Court rules require that the right to counsel attaches on the initiation of formal proceedings:



(Defendant is entitled to counsel at initial bail fixing and all reviews of bail.) Once the right to counsel has attached, it is clear that the right to counsel requires the presence of counsel at every critical stage of the proceeding, including motions; summations, charge and sentencing, and denial of that right will ordinarily nullify a consequent conviction without Defendant’s need to specific resultant prejudice.

     
     New Jersey Court rules require that the Counsel for the Defendant “must” be present at all stages of the proceedings. Judge Gaeta was restricted from taking action against me because I was represented by counsel who was not present at the time of the hearing. Noted public defender and author David Feige said in his book “Indefensible”:

      “Judges wouldn’t dream of calling a private lawyer’s case without the lawyer present.”

Apparently, Mr. Feige never practiced law in New Jersey. After Gaeta, jacked my bail up from $10,000 to $25,000 he said that if I didn’t vacant my the property immediately he was going to have me arrested and incarcerated in the Bergen County jail pending trial. A proceeeding that happened almost two years later. Interestingly the Administrative Committee on Judicial Condact had no problem with Gaeta’s threats against me. The Administrative Committee on Judicial Conduct never took any action against Gaeta or Simon despite their lack of Jurisdiction and complete disregard of the New Jersey Anti-Eviction Act and Constitutional law regarding “Due Process.”

Ron Schwartz was representing me at the time with regard my eviction and removal as Executor. The next day Gaeta In an ex-parte (without parties present) conversation with Mr. Schwartz,  threatened to use the Bergen County SWAT team to forcibly remove me from the estate property. Schwartz was shocked by gaeta’s threat which he dutifully passed on to me.The next day Gaeta signed a warrant for my arrest. By that time I had already vacated the property because I didn’t want to be on the wrong end end of some trigger happy SWAT team member’s assault weapon. Gaeta’s made that threat despite the the fact that l hadn’t even been indicted. If that’s how the New Jersey Judicial System treats people they presume to be innocent they have a pretty warped definition of the  “presumption of innocence.”
      Needless to say the use of SWAT teams to enforce eviction orders, is unprecedented even in New Jersey.
        Even though Gaeta as a criminal Court judge lacked the jurisdiction to enforce Judge Simon’s order. I learned that judges in New Jersey due not follow Court Rules or care about their lack of jurisdiction. They can always depend on the higher Court Judges to protect them even when they lack jurisdiction or are involved in criminal activity.
       My lawyer Vincent Basile failed to appear at my hearing on the 9/11/01 araignment before Gaeta, however that did not stop from raising my bail and evicting from my home without my lawyer’s presence. The prosecutor never even appeared at the hearing. That’s “due process,” in New Jersey.
       Gaeta took an Oath of “impartiality” and an Oath to the United States and New Jersey Constitution, then promptly wiped his ass with it.
    Despite these facts, the first thing Gaeta said to me is:

“You’re going to have to let Mr. Basile know, let your attorney know.”

Gaeta: “Before you leave are you out of that house?”

I responded: “No, I’m not.”

Then Gaeta responds by saying: “Well, you’re going to be out of there because on this matter – how much bail did you post?”

Gaeta: “Well, as a condition of recognizance, you are to vacate those premises at 95 Minnehaha Boulevard in Oakland immediately. Because Judge Simon ordered you out of there no later than September 7th. I have her order here. Do you understand that? If you’re found there, we’ll be calling the police tonight. If you’re found there, you’re to be arrested and put in the Bergen County Jail.”

Gaeta: “I don’t care what you’re attorney said. This is a condition of my bail.”

Gaeta: “How much was it? $10,000 ROR, $5,000 or what?

I said: “I don’t know?”

Gaeta: “It will be $25,000 ROR. Condition of the bail, immediately vacate 95 Minnehaha, Oakland Immediately. Do you understand that?”

Gaeta: If they find you there, you’ll be sent to the county jail until the matter’s resolved here.”

 Gaeta:  “Judge Simon ordered you out of there no later than September 7th. I have her order here. Do you understand that? If you’re found there, we’ll be calling the police tonight. If you’re found there, you’re to be arrested and put in the Bergen County Jail.”

       The prosecutor Mark Thonus completely violated the Grand Jury process. He manipulated the Grand Jury by presenting it with false evidence. He told the Grand Jury that one of the firearms that the police seized had an illegal high capacity ammunition magazine.  I bought the gun from a licensed New Jersey firearms dealer at the Paterson Rod & Gun Club. That charge was false and he dropped it before trial, but that did not stop him from telling the Grand Jury that I violated the law. He did not tell the Grand Jury the truth which was that he was making a criminal allegation which he knew to be untrue in order to indict me and steal my father’s estate and cover up the theft by his criminal cohorts. 
       I was indicted for having an illegal high capacity ammunition magazine. No investigation apparently was ever made into the Paterson Rod & Gun Club which sold me the magazine. Now why would Thonus make the allegation that I was in possesion of an illegal high capacity ammunition magazine and then fail to investigate the Paterson Rod & Gun Club which sold me the magazine. He was given copies of the receipts from the sale yet he never launched an investigation of the Paterson Rod & Gun Club. Obviously Thonus knew there was no “illegal” high capacity ammunition magazine and knowingly presented false evidence to the Grand Jury. 
    In order to defend myself against the false weapons charge I hired Frank Pisano of Needleman & Pisano. Needleman & Pisano was a law firm which specialized in firearms law. Although Frank Pisano was not my first choice I decided to retain them because I did not want to be convicted on false firearms charges.
       The Prosecutor Mark Thonus manipulated the Grand Jury by refusing to present it with exculpatory evidence that would negate my guilt. The Prosecutor who is duty bound to “investigate” the alleged crime in order protect innocent people from being indicted refused to present the exculpatory evidence.


      “Prosecutor is obligated, legally and ethically, not to pursue the innocent; he is an officer of the Court, obligated to present true, not the opposite.”

        Under oath the “the alleged victim” gave three (3) completely different versions of the “alleged threat” In one version she said that the “alleged threat” occurred in the bedroom. In another version she said the “alleged threat” happened in the kitchen and yet another version she said the threat occurred in the living room. Thonus was given the three (3) three different statements made under oath by the alleged victim regarding the alleged threat in discovery.

Although, this information was given to Thonus in discovery prior to trial he could have just as easily found it himself as the statements were all a matter of public record. However, Judge Venezia the trial Court judge refused to allow this evidence to to be admitted at trial.
      On July 12, 2001 at my arraignment she said that the alleged threat happened in the bedroom:


A. “…I walked back into the living room to tell him that – explain to him that this was just as much house my house as it was his, that I Would be coming into the house to get –start getting it straightened out, he could take whatever he wanted, he could lock it in a room,…”


Q. Okay.


A. And I have the right to come back whenever I want. And that is when he said to me, if you come back in this house without my permission I’ll shoot you. And I said do you have a gun? And he said, yes. And I said, are you going to kill me? And, he said , yes,… I said are you going to kill me now? And he just smiled and laughed.


       In her response to my Motion for Reconsideration the alleged victim made the following statement under oath on July 3, 2001:


       The Defendant followed her into the kitchen extending his finger upwards towards her constantly and at the same time yelling and screaming at her. The Plaintiff told the Defendant that this was just as much her house as it was his and she will be coming back into the house whenever it is convenient and necessary for her to start getting the house ready for sale. He then said to her “if you come back into this house without my approval, I’ll shoot you”
      At trial on April 9th 2003, the alleged victim made the following statement under oath:


A. Terry you better get used to the fact that I’m going to be coming over here anytime, whenever I feel like it, to get the house ready for sale. And, he said if you do, I’ll shoot you. And I said are you going to kill me and he said yes. And I said you have a gun and he said yes. And I immediately walked to the phone and called the police.


Q. Now, when Terence said these things where was he standing?


A. He was standing in my mother’s room.


On April 15th 2005 the New Jersey Supreme Court: IN THE MATTER OF THE
GRAND JURY APPEARANCE REQUEST BY LARRY S.LOIGMAN, ESQ. said the
following:


(Noting that grand jury’s responsibility “to protect the innocent from unfounded prosecution” has “roots in English history” (internal quotations omitted)). The grand jury’s duty is not only to bring to trial those who are probably guilty, but also to clear the innocent of baseless charges. Hogan, supra, 144 N.J. at 228. The grand jury has fulfilled its “historic purpose [by] standing between the defendant and the power of the State, protecting the defendant from unfounded prosecutions.” State v. Fortin, 178 N.J. 540, 638 (2004). It remains a bulwark against hasty and ill-conceived “prosecutions and continues to lend legitimacy to our system of justice by infusing it with a democratic ethos.” Ibid. The indictment requirement of Article 1, Paragraph 8, is a constitutional protection that enhances the integrity of the charging process. It does not confer an unbridled right of access, allowing any person to make an accusation or present evidence to the grand jury. There is no reason to believe that the hundreds of well-trained (some career) and experienced prosecutors throughout the state cannot be trusted to bring before the grand jury meritorious complaints of potential criminal conduct and to weed out frivolous allegations unworthy of prosecution. Moreover, the law enforcement and investigative agencies involved have overlapping jurisdiction, which increases the likelihood that one or more of them will have an interest in pursuing a legitimate claim of wrongdoing.)


The prosecutors’ offices in this state have hundreds of experienced and well-trained attorneys, many of whom have made law enforcement their career. We have no reason to believe that they cannot be trusted to bring before the grand jury meritorious complaints of potential criminal conduct and to weed out frivolous allegations unworthy of presentation. That is a function our court rules already entrust to them. Moreover, the law enforcement and investigative agencies mentioned have overlapping jurisdiction, which increases the likelihood that one or more of those agencies will have an interest in pursuing a legitimate claim of wrongdoing.


Unlike private citizens, prosecutors are guided and governed by the Rules of Professional Conduct and our case law to ensure fairness in the process. For example, prosecutors are forbidden from “prosecuting a charge that the prosecutor knows is not supported by probable cause.” RPC 3.8(a). They must present exculpatory evidence and may not mislead the grand jury by allowing the telling of a “‘half-truth'” or “a distorted version of the facts.” Hogan, supra, 144 N.J. at 236. The prosecutor’s “primary duty” is “to see that justice is done….” State v. Frost, 158 N.J. 76, 83 (1999) (quotations omitted). A prosecutor is enjoined from using “improper methods calculated to produce a wrongful conviction….” Ibid.Those principles of fairness are particularly important in a grand jury setting in which the prosecutor questions witnesses, introduces evidence, and explains the law to the jurors without a judge or defense attorney in attendance.


Those constraints do not apply to and could not easily be imposed on private citizens, who generally have little comprehension of the highly technical procedures that are in place to guarantee the accused his right to a fair grand jury presentation. In addition, giving private persons the right of direct access to the grand jury would be fraught with abuse. Permitting prosecutorial bypass might encourage some persons not to bring pertinent information promptly to the appropriate law enforcement authorities in the hope of gaining direct contact with the grand jury. In some cases, a private person might be bent on pursuing an ill-motive or vindictive agenda. See, e.g., People v. Parker, 30 N.E.2d 11, 14 (Ill. 1940) (explaining that defendant’s letters sent to grand jury “are replete with [malignant] accusations against private citizens and public officials and are, in all probability, the result of personal enmity”), Prosecutors routinely screen and investigate criminal complaints to determine whether there is probable cause to support the return of an indictment. Prosecutors are ethically bound not to seek an indictment in the absence of probable cause. RPC 3.8(a). The records of the Administrative Office of the Courts indicate that, each year, thousands of cases are dismissed or downgraded to municipal court without a grand jury presentation. The system envisioned by Loigman would allow dissatisfied parties to seek permission from the Assignment Judge to present their cases to the grand jury.


     At my trial on April 9th 32003 Prosecutor Thonus asked the alleged victim was scared for her life. She said “yeah” However, on September 12, 2001 the day after Judge Gaeta ordered me to vacant the premises. Officer Keith Sanzari filed the following report with the Oakland Police Department.


“Once at headquarters we informed Ms. Culpepper (the alleged victim) of our findings. Upon hearing our findings, she was unhappy with the results. She stated to Ptl. Senft that she will go up there and kick him out and if she gets shot, he will be liable for her death.”


Does this sound like someone who claimed they were scared for their life?


I was tried on the terroristic threat charge in an outrageous pro forma proceeding in which my conviction was a foregone conclusion. I did not take the stand in part because it was obvious to me that I could not get a fair trial due to the biased decisions of Judge Donald Venezia . A trial is supposed to be a “search for the truth.” However, Judge Venezia and the Prosecutor Mark Thonus were determined to suppress the truth and refused to even allow me to present a defense. Venezia and Thonus rigged the trial in order to suppress the truth. They refused to allow exculpatory evidence such as the messages left on my answering machine by the alleged victim to be admitted.


Judge Venezia also refused to allow the following messages that the alleged victim’s left on my answering machine to be admitted. The messages exposed the alleged victim’s motivation. However, Judge Venezia refused to allow this evidence to be admitted either.


“Terry, I’m not going through this bullshit every time I come over the house. You need to get your shit together and get the hell out of there so I can do what I need to do…You are just trying to stall again, okay. I don’t trust you as far as I can throw you. You need to get the hell out of there that way you can’t blame me every again (sic) for stealing your fucking pots.” Message Three


“…I don’t know what you’re trying to do, but you are messing – – you’re screwing everything up. Why won’t you just get out? Why? I don’t understand. Why won’t you just get out and cooperate? Why? I can’t even think of any reason why….” Message Four


“Terry, you also need to know that this is not about you. I don’t understand what the hell you’re doing. …I think you’re sick. I really do. You make no fucking sense to me. We need to get this done. You need to get out.” Message Five


“Terry, you need some help. You really do. I don’t know what the hell you’re trying. All I’m trying to do is get things done. Okay? You don’t know anything about the probate process. Now, you’re going to send me a certified letter. You’re such a fucking jerk, Terry. I can’t even begin to tell you how stupid and a fucking asshole you are.” Message Six


“Hello, Terry, dear brother. Guess what? I can come in the house anytime I want and you can’t stop me. How about that? I’ll see you soon, baby. Bye-bye.” Message Eight


The Prosecutor who is supposed to investigate the alleged crime and who is duty
bound to “protect the innocent” claimed that I followed the alleged victim into the kitchen with the gun cases.


The Prosecutor Mark Thonus lied to the jury in his opening statement:


“…Maryjean will testify that she see’s Terence enter the kitchen and he’s carrying two cases.”


At trial Thonus elicited the following answer by the alleged victim on direct examination:


“Well, he was standing in front of me in front of the front door.”
And I walked up to him and I said are those real guns and he said yes.”


At no time did the alleged victim ever say that I followed her into the kitchen with two gun cases.


That is not the only evidence of Thonus’s failure to investigate the alleged crime and determination to convict me in spite of the evidence. Thonus claimed that the alleged victim made a “9-1-1” to the police. In fact there was no “9-1-1” call. Prior to her forcing her way into the house the alleged victim called the police using her cell phone. After the alleged threat the allegedly terrified victim did not flee the house, the scene of the alleged crime. The alleged victim went to the kitchen to call the police. Not only did she not call “9-1-1”, she called “4-1-1, information” to get the phone number from the operator in order to call the police on their non-emergency line. Although, the “State” had the duty to “preserve the evidence” of that call it doesn’t really matter if the outcome of the Trial is a foregone conclusion.


In another instance of prosecutorial misconduct the prosecutor allowed the tape of the call to be destroyed. On appeal the Appellate Court refers to the nonexistent “9-1-1” call in their decision to uphold the conviction. A “9-1-1” call which never even occurred.


The prosecutor Thonus used hearsay evidence and didn’t even call the police dispatcher to testify. At trial the prosecutor referred to the non-existent “9-1-1” call in his closing argument in order to support his fictionalized version of the alleged crime.


Judge Venezia did however; allow “irrelevant” evidence against me to be admitted. On appeal my appellate lawyer Leslie Sinemus, said the following:


” The state successfully but impermissibly painted Terry Culpepper as armed and dangerous, through hearsay concerning the dispatcher’s comments to the police, irrelevant testimony about conducting a “felony stop” because of the “weapons involved,”and irrelevant testimony concerning weapons which were never even seen by the victim. The jury’s ability to evaluate Maryjean Culpepper’s credibility – the only state witness with actual knowledge of what happened – was eviscerated before she even took the stand, to the extreme detriment of Terry Culpepper.”


In the appeal of my criminal conviction we raised the following issue:
Terry Culpepper pleaded not guilty to the charge for which he was tried and through that guilty plea denied that he ever threatened his sister, however provoked. That being said, giving all favorable inferences to the State regarding the testimony of Mary Jean Culpepper concerning the alleged threat by her brother, and assuming her testimony were believed in its entirety, the statements made by Terry Culpepper were insufficient as a matter of law to constitute “Terroristic Threats” and a violation of N.J.S.A. 2C:12-3b, which states:


A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out. [emphases added]


The Comments explain the legislative intent behind the statute:


In drafting legislation penalizing threats, we would not wish to authorize grave sanctions against the kind of verbal threat which expresses transitory anger rather than settled purpose to carry out the threat or to terrorize the other person. … [W]e have not gone so far as to punish mere intent to alarm. This seems too loose, inasmuch as every threat intentionally communicated to the victim may be said to involve some purpose to alarm. MPC T.D. 11, pp. 8-9 (1961).


In my appellate brief my lawyer Leslie Sinemus, Chairman of the New Jersey Defense Lawyers Amicus said in Point three:


“THE DEFENSE WAS IMPERMISSIBLY DENIED THE ABILITY TO PRESENT A DEFENSE.”


Appellate Court Judges Wefing and Fuentes said in their opinion.


” …. Defendant’s arguments lack sufficient merit to warrant discussion in a written opinion.”


      The alleged victim claimed that she went to the kitchen to call the police. When the alleged victim called the police she was told to leave the house immediately instead she remained in the house after I left. At trial the alleged victim claimed that there was only other  way out of the house. In fact, there were at least four other ways out including a door that was directly behind her and two other ones to the side. One would think that prosecutor who is obligated to protect the innocent would have bothered to verify this allegation since a house with only one way out would be an obvious fire hazard. Needless to say he did not. However, that a not stop the prosecutor from presenting false evidence of his own, such as the fact that I followed her into kitchen, and that the alleged victim called 9-1-1.
    So here I am convicted of a crime I did not commit due to a corrupt judicial system and prosecutor.


The following is the rest of my brief which was filed with the Superior Court Appellate Division


After hearing oral arguments on both of Defendant’s counsel, the Court determined to reaffirm its original order. Regarding the Defendant’s removal as Executor, the Court indicated that it was reaffirming its reasons for the removal given as the August 10 hearing (None were given at that time.) The only reason given by the Trial Court for the removal as Executor at the September 21, 2000 hearing was that the Defendant had not cooperated in the sale of the house and that the property could diminish in value. Again, however, no testimony was taken on this contested issue or on the reasonableness of the Defendant’s position that the house should not be sold until such time as the septic system was replaced.


Regarding the issue of whether the Court had the jurisdiction under N.J.S.A. 2A:18-61-1. To evict the Defendant from his home without cause, the Court found that the Defendant had paid rent to his father so he was, in effect a, residential tenant before the father’s death. The Court, however, went on to hold, in a an admittedly novel ruling, unsupported by any case law, that the Defendant had lost his status as a residential tenant under N.J.S.A. 2A:18-61-1. When he became a co-executor of his father’s estate the Court felt, that as a fiduciary of the estate, the Defendant was similar to an owner and had “better rights” than any tenant protected by the Anti-Eviction act. Following this reasoning, the Court determined that someone who has control over the property that a fiduciary of the estate, does not need the protection of N.J.S.A. 2A:18-61-1, the Anti-Eviction act. The Court failed to explain how someone who would have greater rights than to be evicted only for cause is under N.J.S.A. 2A:18-61-1 could be evicted by the Court without cause. The Court further failed to explain how, if she had already removed the Defendant as a fiduciary of the estate, he was still not protected by N.J.S.A. 2A:18-61-1. Given such an admittedly novel ruling, the Trial Court invited the Defendant to take the matter to the New Jersey Supreme Court to create some case law on this subject. We have accepted that invitation.


Lastly, the Trial Court determined, without making any findings, to remove Mary Jean Culpepper as Co-Executor as well and to substitute a third-party administrator in order to “keep peace”. This was done without notifying any of the other heirs listed in the will and giving them the opportunity to qualify at administrator. Again, this was done without any evidence being taken on the contested issues related to Mary Jean Culpepper.


The Court signed an order on October 20, 2001, refusing to vacate the order of August 20, 2001, removing Mary Jean Culpepper as Co-Executor and appointing Joseph Rem Esq. As Administrator, CTA of the estate. The Notice of appeal was filed on or about October 19, 2001.

LEGAL ARGUMENT
POINT 1.
THE DEFENDANT’S RIGHTS TO ELEMENTARY DUE PROCESS WERE VIOLATED BY THE TRIAL COURT AT BOTH THE AUGUST 10TH AND SEPTEMBER 21ST, 2001 HEARINGS



A review of the record before the Trial Court in this case (such as it is), coupled with the Trial Court’s surprising admission that it had not reviewed the Defendant answering papers prior to the August 10 hearing and its refusal to grant the Defendant in adjournment for the purposes of obtaining counsel, make it clear that the Court had already made its determination in this case prior to hearing a single word from the Defendant. It is to be remembered that the first question asked of the Defendant at the August 10 hearing was whether he understood that he was going to had to vacate the premises?  The Defendant was never even asked to address the issues of whether he should be forced from his home by Court Order or whether he should be removed as Executor. When the Defendant asks the simple question of what the Court grounds were for removing him as Executor, the Court refused to answer. The Court’s consistent refusal to take testimony on any of the many contested issues in this case, even when asked to do so, it’s removal of the Co-Executor, Mary Jean Culpepper, without a Trial and its appointment of an independent Administrator without giving any of the other heirs an opportunity to qualify are further indications of the Trial Court’s unwillingness to provide elementary due process to any of the interested parties in this case.


That the due process clause contained in the Fifth Amendment of the Federal Constitution as applied to the state to the 14th Amendment, apply to the retention of housing cannot be disputed.. Tenants have a substantial interest in procedural safeguards ensuring that they will not be removed from their home without Notice and a substantial opportunity to be heard. In the context of the removal of a fiduciary from an estate, our Appellate Courts have held that due process requires a fiduciary to be given Notice and a full opportunity to be heard prior to the Court coming to a determination on the merits of an application for removal. In contested estate matters, notions of due process required (as do our rules of Court the Court) to have a plenary hearing with an opportunity to observe the credibility of the witnesses as well as a recitation of findings of fact and conclusions of law on the record that support the Trial Court orders.


The due process requirements had been inferentially incorporated into our Court
Rules regarding summary proceeding in the probate Court Chancery division. Under Rule.4:83-1 all contested matters in the probate Court of permitted to be brought in a summary manner pursuant to Rule.4:67. Under Rule.4:67.5, the Court is required to have a trial of the action on the return date of the Order to Show Cause which, in this case, was August 10th, 2001. The Rule further provides, however, that only if they affidavits show “palpably” that there is no genuine issue as to any material fact, the Court may then try the action on the pleadings and affidavits and render final judgment thereon. The rule then goes on to provide, however, that if anybody objects to such a trial and there may be a genuine issue as to a material fact, “…. the Court shall hear the evidence as to those matters which may be genuinely in issue, and render final judgment.” Rule.4:67.5, the obvious intent of this rule is to require the Court to have an evidentiary hearing, including the examination of witnesses, where there are genuine issues as to any material facts. This the Court failed to do in the case at bar.


Thankfully, one must go back some forty-two (42) years in legal research time to
find a probate matter where a Trial Court provide the parties with as little due process as the record as this matter reveals. In In re Meyer, the granddaughter of a deceased Testator made application to the Probate Part for appointment as Administrator of an estate after the death of Executors named in the will. The application was opposed by a daughter of the deceased. As here, at the very opening of the Court session the Judge announced his intention to appoint in an independent Administrator for the estate. When counsel for the applicant protested that he had not had the opportunity to present evidence, the Trial Court Judge responded; “I don’t think oral testimony is necessary because the issue is simple.” The Court then went on to appoint the independent administrator for the Estate without the taking of any testimony. In reversing the order appointing the independent Administrator, the Appellate Division, rejecting the procedure followed by the Trial Court said:


This was a contested proceeding, and, not at all a simple one.The conscientious desire of the Trial Judge for expeditious determination was laudable, but it cannot justify denial of a parties fundamental right to Notice in advance of the date set for a hearing of a contested matter on the merits, to the opportunity to be confronted by opposing proofs and argument before the judge comes to a conclusion on the merits of the application. This is elementary due process.


The Appellate Division then concluded that because there had been no “…clear or
agreed-upon factual posture” in the case, the matter would have to be remanded for “a proper hearing and determination.”


Likewise, here, Defendant was neither given the opportunity to be confronted by the opposing proofs and argument or to offer his own proofs and arguments before the Trial Court came to its precipitous determinations. This, we submit, was a denial of “elementary due process”.


In Simoni vs. D’ipplito, the Supreme Court of New Jersey criticized the type of procedure followed in the Meyer case and the case at bar. There the Probate Part had again engaged in an informal proceeding on cross applications for appointment of an administrator of an intestate Estate. Again, no testimony was taken on contested issues. In finding procedure followed by the Trial Court to be an inadequate, the Supreme Court said:


“Both the application of Mr. DeMarco and that of the Italian consul were presented to the Judge of the Cumberland County Court, sitting in the Probate Division. No testimony was taken, no facts were stipulated, arguments were made by respectively counsel and on July 12, 1951, an order adjudging that Letters of Administration be granted…. Such an informal proceeding is not consistent with the provisions of [the prior Court rule], the underlying principle of which is that there must be a showing on the record which forms the foundation for each order or judgment entered by the Court.”


We note again hear that the Court failed to take any testimony on any of the contested factual issues and that no facts were stipulated by any of the parties herein. The Trial Court failed to make any findings of fact and there is no showing on the record as to what facts the Court reached its conclusions upon, either factual or legal. We note that this critical need for the Trial Court to make adequate findings of fact and conclusions of law based on the evidence and adduced in the record has been codified in our current rule Rule.1. 7-4 and numerous Appellate decisions. Where the Trial Court has failed to make the required findings of fact either in its oral opinion or in writing subsequent to the filing of a Notice of Appeal, the appropriate remedy is for the Appellate Court to remand the matter to the Trial Court.


We note also that two other Appellate cases affirmed the removal of a Co-Executor but only after the record revealed that a full hearing had been afforded with the appearance is a witnesses, cross examination, and the consequent ability of the Trial Court to Judge the credibility of those witnesses. In the case at bar, the Trial Court gave neither party the right to call or cross examine witnesses and, consequently, had no opportunity to judge the credibility of any of the allegations that were being made.


As the above cases make abundantly clear, the procedure followed by the Trial Court in this case was an aberration in the types of hearings that are usually afforded parties in a contested probate action. In determining the matter without even hearing from the Defendant or reviewing his papers, and failing to require the production of testimony on contested issues, and failing to provide for cross-examination and confrontation of the witnesses, in failing to even respond to the Defendant when asked the reason for his removal as Executor or and in failing to set forth any findings of fact or conclusions of law on the record so that the parties might understand them and an Appellate Court might review them, the Trial Court in this case wholly failed to provide the Defendant with elementary due process. For this reason alone, the matter should be reversed and remanded to the Trial Court for proceedings consistent with due process of law.

POINT 2.
THE TRIAL COURT FAILED TO MAKE ANY FACTUAL FINDINGS J
JUSTIFYING THE REMOVAL OF THE DEFENDANT AS EXECUTOR OF HIS FATHER’S ESTATE UNDER N.J.S.A. 3B:14-21



Removal of an Executor of an estate from his or her office is governed by the provisions of N.J.S.A. 3B:14-21. That statute provides that Court may remove a fiduciary from office when:


a. After due Notice of an order or Judgment of the Court so directing, it neglects or refuses, within the time fixed by the Court, to file an inventory, render an account will give security or additional security;


b. After due Notice of any other order or Judgment of the Court made
under its proper authority, he need lacks or refuses to perform or obey he order or Judgment within the time six by the Court; or


c. He has embezzled, wasted or misapplied any part of the estate committed to his custody, or has abuse the trust or confidence in him; or


d. He has removed from the state or does not reside therein and neglects or refuses to proceed with the administration of the Estate and perform the duties and trust the involving upon him; or


e. He asked of unsound mind or mentally incapacitated for the transaction of business; or


f. One of two or more fiduciaries had neglected or refused to perform his duties were to join with the other fiduciary or fiduciaries in the administration of the Estate committed to their care whereby the proper administration and settlement of the Estate is or may be hindered or prevented.


We note again that the Trial Court here failed to make any findings of fact or conclusions of law as to which, if any of the above grounds listed justified removal of the Defendant as Executor in this case.


In our state, Courts have been extremely reluctant to remove an executor or a
trustee without clear and definite proof of fraud, gross carelessness, or in difference. This is particularly true were a Defendant has chosen and designated persons to act as Executors respecting his estate.


So long as an Executor acts in good faith, with ordinary discretion and within the scope of his powers, his acts cannot be assailed. The best expression of this well-reasoned reluctance to remove is contained in In re Hazeltine this is particularly true where a decedent has chosen and designated persons to act as Executors respecting his Estate. So long as the Executor acts in good faith, with ordinary discretion and within the scope of his powers, his acts cannot essentially be assailed. The best expression of this well – reasoned reluctance to remove is contained in In re Hazeltine. “No man is infallible; the wisest make mistakes; but the law holds no man responsible for the consequences of his mistakes which are the result of the imperfection of human judgment; and do not proceed from fraud, gross carelessness or indifference to duty. …. Indeed, he may do anything within the scope of his powers, without the least risk of personal liability for the consequences of his acts provided he exercises the care and judgment of the man of ordinary prudence and sagacity. That it did test which the Court are required to apply in all cases”.


Applying this strict standard to the case at bar, we find nothing in the record to suggest that the Court found “clear and definite proof of fraud, gross carelessness or indifference” as required by the cases. Nor do we know what sub-section of 3B:14-21 the Court was relying upon to justify the removal of the son as Executor of his Father’s Estate. The only suggestion in the record regarding the Trial Court’s reasons for this removal was that the Trial Court’s felt that the Defendant was not cooperating in the sale of the house that was the only asset of the Estate. However, a refusal to join in the immediate sale of the deceased’s house has been specifically held not to be grounds for removal of the Executor.


In In re Hanretty, the highest Court of the State of New Jersey was dealing with fact similar to the case at bar. In that Case Nora Hanretty had died on September 17, 1922, leaving her two sons, John and Owen as Co-Executors in her Last Will and Testament. The son, John, had occupied a floor of the mother’s residence for several years prior to her death, paying a monthly rental. The will had directed the Executors to sell the house into divide the proceeds equally among Nora’s four sons. After the issuance of Letters Testamentary to John and Owen as Co-Executors, there arose a dispute between John and Owen concerning the sale of the house in which John continued to reside. Apparently, Owen wanted to sell the house to a third-party while John expressed a desire to buy the property for himself. After negotiations for purchase of the house by John and fell through, Owen presented to John a contract for the sale of the house to a third-party which he refused to sign. Subsequently, Owen and another brother filed a petition for John’s removal as Co-Executor. The high Court, in reviewing the grounds for removal under the predecessor statute to N.J.S.A. 3B:14-21, found that the record did not reveal any evidence that John had wasted or misapplied any part of the estate. The Court then reasoned that the only issue before the Court was whether the refusal by John to execute the contract for the sale of the house was an abuse of the trust and confidence reposed in him, or was a failure to properly perform his duties, whereby he hindered or prevented the proper administration or settlement of his estate. In concluding that John’s refusal or failure to sign the contract for sale did not amount to grounds under this statute for removal as Executor or, the Court concluded:


“I do not feel that these facts justified the Orphans Court in placing the stigma of removal on John. The facts do not appear to me to show bad faith or a lack of fidelity, on John’s part in the performance of his duty as Executor. His duties under the will and included not only the sale of the property in question, but the disposition and distribution of the balance of the estate. His mother desired that the two Executor’s should administer her estate and she reposed confidence in John and by her will said that he should be one of her Executors. Her testamentary will should not be nullified by removing John , thus making Owen Sole Executor, unless it appears clearly that John was flagrantly derelict in his duties.”


In directly commenting on whether the refusal to sign the contract for sale could amount to grounds for removal, the Court said: “The law gives an Executor or a reasonable time within which to settle his Estate, and I do not think that John’s refusal to accept an offer for and to join with his Co-Executor in the execution of a Contract for the sale of the property within seven-month after his appointment as Executor, even if such refusal was based upon a desire to purchase the property for himself . . . can be said to have been an abuse of the trust and confidence reposed in him, or to have hindered or prevented the proper administration or settlement of his Estate.”


We note that in the present case, the Defendant’s father died in May of 2001 and a
Complaint for removal of the Defendant as Co-Executor Court was filed on July 10, 2001, less than two months later. We note that the Trial Court never made any findings of fact that the Defendant’s reluctance to join in the sale of the house while the house did not have a functioning septic tank system was a result of any fraud, gross negligence or indifference on his part. Neither did the Court make a finding that such a position was unreasonable one under the circumstances. The Court seemed to act merely on its general feelings that the property ought to be sold and that there was a need to “keep peace” between the parties.


Neither substitution of a discharged Executor with an Administrator is governed by the provisions of three statutes. N.J.S.A. 3B:10-15 provides that when the remaining Executor’s of an Estate have been discharged by the Court before the completion of their duties, the vacancy so created shall be filled by the appointment of a “fit person to exercise the vacated office”. N.J.S.A. 3B:14-21 provides that the substituted appointment shall be made by the issuance of letters of substitutionary administration and the manner and upon the conditions prescribed for granting letters of administration to the first Administrators and other cases. The initial granting of letters of administration is governed by N.J.S.A. 3B:10-2. That Statute provided that letters of administration shall be granted to the surviving spouse of the intestate or, if there is no surviving spouse, then to the “remaining heirs of the intestate or some of them, if they or any of them will accept the administration and, if none of them will accept the administration, then to any other person as will accept the administration.” The statute further provides that if the heirs of the intestate do not claim the administration within 40 days after the death of the intestate, the Superior Court may grant letters of administration to any fit person applying therefor.


As noted in In re Meyer the Statute set up a mandated procedure for the substitution of an Executor. That procedure requires that, upon such removal, the “next of kin” of the decedent must be at offered the administration and only if none of them will accept, then administration can be to any proper person appointed by the Court. In this context, only residuary legatees have preference over next of kin in the right to be at administrators of the estate after an Executor has been removed. In In re Meyer, the Appellate Division ruled that the complaint of the granddaughter seeking her appointment as administration was defective because it did not list, or give Notice to, the other heirs of the Estate who might have a greater preference, by statute, to be Administrator, thereby not giving the other heirs an opportunity to seek administration of the Estate.


In the case at bar, the Trial Court removed both Co-Executor’s an substituted them with an administrator who was neither a residuary legatee nor an heir of the estate of Hugh Culpepper. The appointment of an administrator was not sought by either of the parties to this case, no Notice was given to the six other residuary legatees in the last will and testament that such an event might occur. There were six other brothers and sisters who are also residuary legatees under the will and also could have qualified for appointment without, we add, expense to the estate. In fact, one of the legatees, Gregory Culpepper, appeared at the September 21, 2001 hearing before the Trial Court and requested the Trial Court name him as Co-Executor instead of Mary Jean Culpepper. The Trial Court ignored this request and failed to require that Notice be given to the other legatees of their opportunity to qualify to administer the estate. This is a clear violation of the above cited statute and on this basis alone, the order would have to be reversed and remanded for further proceedings consistent with the above cited statutes.

POINT 4.
THE TRIAL COURT LACKED JURISDICTION TO HEAR THE ISSUE OF REMOVAL OF THE DEFENDANT FROM THE SUBJECT PREMISES AS NO CAUSE UNDER FOR EVICTION WAS PLEADED OR PROVED AND NO NOTICE TERMINATING TENANCY WAS PLEADED OR PROVED BY THE PLAINTIFF.

Since 1974, the removal of residential tenants in New Jersey has been specifically restricted to the establishment of cause by the landlord and the service of proper Notice Terminating Tenancy, pursuant to N,J.S.A. 2A:18-61.1 and N,J.S.A. 2A:18-61.2.


N.J.S.A. 2A:18-61.1 provide in pertinent part: “No lessee or tenant may be removed by the Superior Court from any house, building leased for residential purposes, other than owner occupied premises with not more than two rental units . . . except upon establishment of one of the following grounds as good cause is:”


There then follows eighteen causes for removal of a residential tenant, none of which the Plaintiff in this case either pleaded in her Complaint or proved before the Court. Since the Defendant has alleged that he is a residential tenant, and since the deceased moved out of the property in February of 2000, the premises are not owner occupied and the statute applies. We note that there has been no denial of the Defendant’s status as a tenant at the subject property in any of the papers submitted to the Court or in any statement made to the Court by counsel for the Plaintiff on August 10, 2001. The Eviction for Cause Act gives a residential tenant the virtual option of a lifetime tenancy so long as one of the enumerated causes it not available to the landlord. Unless a landlord pleads and proves one of the good causes for eviction set forth in the Act, a Complaint for Dispossess must be dismissed. Additionally, Courts lack authority to fashion an “equitable remedy” in a Summary Dispossess action because the “Anti-Eviction Act does not provide for equitable principles to be recognized as a good cause for a residential tenant’s removal.


The undisputed failure of the plaintiff herein to plead and proves the service of a Notice to quit terminating the Defendant tenancy under N.J.S.A. 2A:18-61.2 also prohibits the Court from obtaining jurisdiction to act on the demand for possession. A month-to-month tenancy is a continuing relationship which may only be terminated upon the service of a one-month Notice to Quit. Absent such a Notice to Quit and Demand for Possession, the Defendant’s month-to-month tenancy, the establishment of which was not disputed in this case, continued unabated and the Plaintiff’s dispossess action was without basis in fact or in law. Service of the Notice to Quit and Demand for Possession is required by N.J.S.A. 2A:18-61.1 is a jurisdictional requisite and, without the service of the same, the Court lacks jurisdiction to enter a Judgment of removal.


lastly, since the Defendant appeared Pro Se in the preceding before the Court on August 10 2001, the Court was required to inform the Defendant of all the procedural and substantive rights at his disposal as a residential tenant as set forth in Community Realty Management Inc. Versus Harris, our review of the record of the August 10 hearing, which resulted in the Court’s removal order, revealed that the Defendant was not informed of any of the 10 items required by the Supreme Court by Harris. In this case, the tenant alleged that he had established a residential tenancy with the deceased at the rate of $900 per month ran more than a year prior to his father’s death in May of 2001. This allegation is not disputed by the plaintiff. The death of the lessor, the father in this case, did not terminate a month-to-month tenancy previously established by the Defendant. Since The plaintiff has not even attempted to terminate the Defendant’s residential tenancy, the Court lacked authority to enter an order for the Defendant’s removal.


We note that as the August 10, 2001 hearing, the Court failed to articulate any grounds for the removal of the Defendant as a residential tenant from the premises. Even after the Defendant specifically move to vacate the eviction order as being void for lack of jurisdiction under Rule 4:50(d) the plaintiff failed to aid the Trial Court by providing it with any statutory or case authority for the eviction. In fact, the Plaintiff filed no responding papers to either the Motion for Reconsideration or the Motion to vacate the Eviction Order.


At the hearing on these Motions on September 21, 2001, the Trial Court agreed with the proposition that, since the Defendant had paid rent to his father for the premises, he had become a residential tenant at the premises prior to his father’s death. The Trial Court, however without asking any of the counsel to brief the issue, then came up with an admittedly novel justification for evicting the Defendant without cause. The Court appeared to reason that at the moment of his father’s death, the Defendant had become a Co-Executor of his estate and thus a kind of owner who had “better rights than under any anti-eviction law.” The Court then continued to reason that since the Defendant had greater rights as a co-owner than as a tenant, he was not a tenant that needed to be protected under the Anti-Eviction Act. The assertion seems to be that at the moment of his father’s death, the Defendant lost his protections as a tenant under N.J.S.A. 2A:18-61.1. The Trial Court however failed to explain, even under this novel theory, why the Defendant did not regain his anti-eviction protection when the Court removed him as a “co-owner” of the estate. The Trial Court admitted that there was no case authority supporting this proposition and invited the Defendant to seek Appellate review. Further legal research on this issue has failed to reveal any authority supporting the Trial Court’s position. We didn’t know, however, as we have stated above, that the death of the lessor, the father in this case, did not terminate the month-to-month tenancy previously established by the Defendant. Leases affect property rights and survive the death of either the lessor or the lessee. We know also that the personal representative of the deceased ordinarily continued to be subject to the burdens and entitled to the benefit of the decedent’s lease and that any other rule would “needlessly undermine the stability of real estate leases and would generally be contrary to the reasonable expectations of the parties.”


Moreover, we note that the purpose of the Anti-Eviction Act it to address the critical shortage of residential housing and to prevent the dispossession of tenants who are paying their rent and generally complying with their obligations as tenants. In construing the broad nature of the protections provided by the Anti-Eviction Act, the Appellate Division has noted that:


“The effect of that act is to create a perpetual tenancy, virtually a life interest, in favor of a tenant of residential premises covered by the Act as to whom there is no statutory cause for eviction under N,J.S.A. 2A:18-61.1.” The anti-eviction act is “remedial legislation deserving of liberal construction.”


Given the broad reach of the protections afforded by the Anti-Eviction Act, we find no basis in the case law or in the act justifying withdrawal of the protections afforded to the Defendant as a tenant by the Act on the death of his father. The Defendant continued to pay rent to the estate after the father’s death and continued to maintain the premises and pay the real estate taxes, actions which benefitted the estate. There is no indication on the record that the defendant would refuse to vacate the premises after the house would be properly repaired and sold to a purchaser who wished to personally occupy. Even if the Defendant refused to do so, the estate could evict him for personal occupancy to a purchaser under N.J.S.A. 2A:18-61-1(1) (3)


Additionally, it is apparent that the Trial Court’s reasoning is circular and rationally inconsistent. The Trial Court’s could not explain how, as a “co-owner’ of the premises in his role as Co-Executor, he could have greater rights than that afforded a tenant under the Anti-Eviction Act, yet be removed by the Trial Court without cause. The Court also failed to explain how if his status as Co-Executor caused him to lose his protections Under the Ant-Eviction Act, Why his removal by the Court as Co-Executor did not serve to re-institute those protections. The Court also failed to explain how one “co-owner” of the property without the institution of a partition action. Moreover, the availability of a summary dispossess action for eviction is strictly limited to those parties standing in the relationship of landlord and tenant. If, as the Trial Court reasoned, the Defendant lost his status as a tenant upon the death of his father, the Plaintiff was required to seek his removal through a Superior Court ejectment action. An ejectment action is a regular, plenary action in which the Defendant is entitled to a trial by jury. Obviously no ejectment proceeding was instituted in the present case.


For all of the Foregoing reasons, it is clear that the Trial Court lacked jurisdiction to entertain the request seeking an Order for the defendant’s eviction and the subsequent order granting same is void and should have been vacated pursuant to R. 4:50(d).


End of my Civil Brief with regard to my eviction and removal as co-executor
Beginning of my Criminal Brief

LEGAL ARGUMENT
ISSUE I
THE DEFENDANT’S NOTION AT THE END OF THE STATE’S CASE SHOULD HAVE BEEN GRANTED; THE THREAT AS TESTIFIED TO WAS CONDITIONAL AND INSUFFICIENT TO CAUSE A REASONABLE PERSON TO BELIEVE THAT THEY WERE IN IMMINENT DANGER



Terry Culpepper pleaded not guilty to the charge for which he was tried and through that guilty plea denied that he ever threatened his sister, however provoked. That being said, giving all favorable inferences to the State regarding the testimony of Mary Jean Culpepper concerning the alleged threat by her brother, and assuming her testimony were believed in its entirety, the statements made by Terry Culpepper were insufficient as a matter of law to constitute “Terroristic Threats” and a violation of N.J.S.A. 2C:12-3b, which states:


A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out. [Emphases added]


The Comments explain the legislative intent behind the statute: In drafting legislation penalizing threats, we would not wish to authorize grave sanctions against the kind of verbal threat which expresses transitory anger rather than settled purpose to carry out the threat or to terrorize the other person. … [W]e have not gone so far as to punish mere intent to alarm. This seems too loose, inasmuch as every threat intentionally communicated to the victim may be said to involve some purpose to alarm. MPC T.D. 11, pp. 8-9 (1961).See, Cannel, Criminal Code Annotated, Comment N.J.S. 2C:12-3, (Gann) 2005 Ed. at p. 440.


Mr. Culpepper (Terry and Mary Jean’s father) had passed away on May 11, 2001. This incident occurred June 22, 2001. In between Mr. Culpepper’s death and the incident, Terry had advised Mary Jean that he wanted to purchase the property from the estate. Despite these discussions, without Notice to Terry, Mary Jean began going to the property where Terry had lived for several years, and began packing up the house to prepare it for sale. Terry had expressed his displeasure at these activities, and sent Mary Jean a certified letter in which he advised her to give him 24 hours Notice before she came to the property – property of the estate, but also Terry’s home.


Mary Jean’s response was to go to the police for an escort to the property, again with no Notice to Terry. After the police “spoke” with Terry for approximately ten minutes, he “allowed” Mary Jean access to the house. After forty minutes of escalated bickering, Mary Jean said, “Terry, you better get used to the fact that I’m going to be coming over here any time whenever I feel like it to get this house ready for sale. To that, Terry said, “If you do, I’ll shoot you.” 2T54:1-4 [emphasis added]. Mary Jean asked if he was going to kill her, and he said yes. She asked if he had a gun, and he replied he did. She then went to call the police to report a threat.


Cross-examination of Mary Jean was even more explicit


Q. Then you testified that it was at that point Mr. Culpepper said that if you return to the house without 24-hour Notice he would shoot you?


A. Yes.


Q. He didn’t say he was going to shoot you right then and there though. It was only if you came back without the 24-hour Notice that he asked?


A. That’s what he said.


It is well established that any seriousness or immediacy of a threat, and whether an ordinary person in the alleged victim’s position would feel immediately threatened, is gauged by the totality of the circumstances. See, State v. Nolan, 205 N.J. Super. 1 (App. Div. 1985) as cited in State v. Smith, 262 N.J. Super 487 (App. Div.) certif. den. 134 N.J. 476 (1993). The statute requires an ordinary hearer to believe “in the immediacy of the threat.” It is difficult to comprehend how this conditional threat, discussing what may happen if Mary Jean goes to Terry’s home without Notice, in the future, can convey sufficient immediacy to satisfy the requirements of the statute. As stated in Nolan, “To be sure, the statutory language is not a model of clarity.” Supra at 2-3. In the event there is a lack of clarity which affects whether the statute clearly communicates what behavior is illegal, the statute must be strictly construed in favor of the Defendant. “Generally, under federal constitutional law, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential [principle] of due process of law.” Betancourt v. Town of West New York, 338 N.J. Super. 415, 422 (App. Div. 2001) quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). See also State v. Golan, 363 N.J. Super. 474, 482 (App. Div. 2003).


Terry’s words literally meant that if Mary Jean came to the house without proper Notice to him, then he would kill her. This is a conditional threat, which by its definition had no attendant immediacy but was strictly to impress upon Mary Jean that Terry was entitled to some privacy and Notice of his sister’s intentions to arrive at his home and start packing it up. The fact that she asked if he had a gun, to which he replied in the affirmative, confirms that she questioned whether he even had the capacity to enforce the threat, in the future.


That his sister was intent on getting Terry arrested by the police and, not so parenthetically, removed from the house, is demonstrated by the fact that she did not leave the house, even when Terry left the kitchen and went into his bedroom. Instead, she stayed in the house and called the police to say she had been threatened. She did not tell them, truthfully, that the threat was if she came to the house without Notice the next time. Instead, she told them he had just threatened her.


According to Mary Jean’s testimony, while she was on the phone with the dispatcher, Terry came out of his bedroom with two cases. She testified, Well, I was looking at them, at first I thought, you know, because I played an instrument, I thought that maybe he was just trying to scare me, that they were musical instrument cases. And then – this was all going through my mind. And then I realized those weren’t any cases – any musical cases I’ve ever seen before, but I’ve never seen guns before either. Despite the fact that the dispatcher told her to get out of the house, Mary Jean hung up the phone and walked over to Terry, who placed the cases on the floor and sat on the arm of the couch. She asked him if those were real guns. Terry replied they were. She then asked if he was going to kill her, and Terry laughed, took the cases, walked out of the house and left the property. The fact that Terry Culpepper left the house reinforces the fact that there was no settled purpose to carry out the threat.


“We would not wish to authorize grave sanctions against the kind of verbal threat which expresses transitory anger rather than settled purpose to carry out the threat or to terrorize the other person. … we have not gone so far as to punish mere intent to alarm.” Comment N.J.S. 2C:12-3, supra.


This case clearly involves transitory anger, accompanied by an intent to communicate the degree to which Terry Culpepper resented his sister’s barging in on his home, especially after he expressed his intention to purchase the property. This Court should not affirm the criminalization of what Terry Culpepper said in response to the treatment he received by his sister. Even giving all favorable inferences of the testimony at trial to the State, this is not the kind of activity our legislature intended to be punished with potentially “grave sanctions” – specifically a maximum of three years in state prison. Consequently, the defense Motion at the end of the State’s case pursuant to N.J. Court R. 3:18-1 should have been granted; the conviction should be overturned.

ISSUE II
IT WAS PLAIN ERROR TO ADMIT TESTIMONY OF THE DETAILS SURROUNDING TERRY CULPEPPER’S ARREST



All points raised in this issue were not raised below, and are being raised as “plain error.” R. 2:10-2. Because point A raises an error of constitutional magnitude, the standard of review is whether the error was harmless beyond a reasonable doubt. State v. Hamilton, 217 N.J. Super 51 (1987), citing State v. Macon, 57 N.J. 325, 340 (1971) and State v. McCloskey, 90 N.J. 18 (1982). Points B. and C. raise issues of evidence, and thus are reviewed under the standard of whether the errors were of such a nature as to have been clearly capable of producing an unjust result. R. 2:10-2.A.

OFFICER FIORE SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY AS TO THE OUT-OF- COURT STATEMENTS OF THE POLICE DISPATCHER PRIOR TO DEFENDANT’S ARREST



Officer Fiore was called to the stand to testify before Mary Jean Culpepper. He testified to the initial meeting with Terry Culpepper where the police told Terry that he had to allow his sister into the house. He then testified that approximately 40 minutes after the police left the property, he and four other officers were dispatched “up there.” The prosecutor then elicited the following testimony:


Q. Okay. Now, you say we actually got the call, you mean you personally or your
dispatcher?


A. Well, dispatch got the call. We – – we received the radio transmission from dispatch.


Q. Okay. And you never spoke with the party making the call to the dispatcher?


A. No, absolutely not.


Q. Okay. I mean, at that particular point in time. Is that right?


A. That’s correct.


Q. Did – – what was the nature of the call as you understood it when you were dispatched to that location?


A. From what we received from – – from our dispatch center, it was that there had been a threat made toward Mary Jean Culpepper. We weren’t exactly told what the
threat was, but there were weapons involved.[emphases added].


The dispatcher did not testify. This testimony, from a police officer, testifying as to out-of-Court statements made by the dispatcher, was rank hearsay. Critically, it went directly to the issue of the case – stating that, in fact, a threat had been made. The testimony compounded the prejudice to Terry Culpepper by stating, as fact, that there were weapons involved. Clearly, Terry Culpepper had no opportunity to cross-examine the police dispatcher.


The United States Supreme Court held, in Crawford v. Washington, 541 U.S. 36
(2004) that “[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable and only where the Defendant has had a prior opportunity to cross-examine.” Id at 58. In Crawford the wife of the Defendant gave a statement to the police implicating her husband in an assault. Although the wife refused to testify at trial, the State introduced her statement substantively against her husband. The Court reversed the conviction, holding that admission of the wife’s statement deprived the Defendant of his Sixth Amendment right to confrontation.


The State may argue that this testimony of Officer Fiore was offered only to
justify the police stop of Terry Culpepper driving away from the property. Crawford would still disapprove. “Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to the amorphous notions of ‘reliability.’” Id at 61. Our Supreme Court addressed this very issue over 30 years ago in State v. Bankston, 63 N.J. 263 (1973):


It is will settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so “upon information received.” McCormick, Evidence (2d ed. 1972),§248, p.587. Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner to explain his subsequent conduct. [Citations omitted] However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused, the testimony violates the hearsay rule. [Citations omitted] Moreover, the admission of such testimony violates the accused’s sixth amendment right to be confronted by the witnesses against him. Favre v. Henderson, 464 F. 2d 359, 364 (5 Cir. 1972) cert. denied 409 U.S. 942, 93 S.Ct. 235, 34 L. Ed. 2d 193 (1972); People v. Harris, 41 Mich. App. 389, 200 N.W. 2d 349, 350 (Ct. App 1972); and see State v. King, 112 N.J. Super 138 (App Div. 1970) aff’d 59 N.J. 525 (1971).


In Bankston the police testified that shortly before the Defendant was arrested the officers had been talking to an ‘informer.’ The police went into a tavern, looking for an individual that possessed narcotics. The prosecutor asked if the detective had a description of the person for whom they were looking, and if the Defendant fit that description. The detective said yes. The prosecutor used that testimony in summation to connect the Defendant to the drugs that the police had found near the Defendant. The Court rejected the State’s assertion that the testimony was admissible to show that the officer was not acting in an arbitrary manner. “When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused’s guilt, the testimony should be disallowed as hearsay.” Id at 271.


In Bankston, the out-of-Court testimony pertained to the identity of the person responsible for a crime. The principles enunciated in Bankston do not only apply when the jury must determine who committed a crime. Those principles also apply ere, when the even more fundamental issue was whether any crime had occurred. Impermissibly, the jury heard that Officer Fiore had information that a crime had occurred and that weapons were involved.


The case of State v, Vandeweaghe, 177 N.J. 229,(2003), involved testimony of a police officer that he went to a hotel and interviewed the Defendant and his girlfriend, because of an anonymous report of an assault taking place. The officer left the hotel. Approximately 40 minutes later the police returned upon calls (by witnesses who later testified at trial) to the police of the Defendant assaulting the girlfriend again. The girlfriend died due to blows to the head. The Court held, inter alia, that the testimony of the earlier, anonymous call to the police was hearsay and violated the accused’s Sixth Amendment right of confrontation. Id at 240-241. See also State v. Bowens, 219 N.J. Super. 290, 300 (App. Div. 1987), stating, …[t]here is also no merit to the State’s claim that even if there was error, the error was not “plain” and thus reversal should not occur absent an objection to the testimony at trial by the Defendant. Of course, it would be tidier if defense counsel had objected but the fact remains that the prosecutor should have refrained from so clearly inviting a violation of the Defendant’s Sixth Amendment right of confrontation. [Emphasis added.]


The fact that the dispatcher may have obtained her information from Mary Jean
Culpepper, and Mary Jean later testified, does not cure the error. See, Neno v. Clinton, 167 N.J. 573, 586 (2001). Because the dispatcher did not testify, the defense was unable to test the source, extent and/or accuracy of the information to which Officer Fiore testified.


In the present case, “it would have been tidier if the defense counsel had objected,” to Officer Fiore’s testimony concerning the dispatcher’s comments, but the fact remains that “the prosecutor in this case should have refrained from so clearly inviting a violation of the Defendant’s Sixth Amendment’s right of confrontation.” Bowens, supra. This Court cannot say that the error was harmless, beyond a reasonable doubt, see, State v. Hamilton, 217 N.J. Super 51 (1987), citing State v. Macon, 57 N.J. 325, 340 (1971) and State v. McCloskey, 90 N.J. 18 (1982), consequently the conviction must be reversed.

B.
THE POLICE SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY AS TO THE NATURE OF THE STOP



After testifying about the information the police received from the dispatcher, Officer Fiore went on to describe the procedures used in the police stop of Terry Culpepper’s car as it was driving away from the property:


A: Prior to my arriving Patrolman Hess arrived at the scene and said he made a – – actually, he said he was close to the scene. I told him to stay in his car until I arrived there because we weren’t sure of exactly where he was at that point.


Q. Where who was?


A: Where Terence Culpepper was.


Q: And what was your concern as far as directing Officer Hess to remain in his vehicle even though he was very close to the scene?


A: Well, we wanted to make sure we had enough back up officers – – for officer safety wise. We wanted to make sure we had enough people on the scene.


Q: Is that because of the fact that there may be possible weapons involved?


A: That’s correct.


Defense counsel did not object. The testimony of the police impermissibly but clearly communicated to the jury the opinion of the police that they were dealing with an armed and dangerous man.


Officer Fiore further testified:


Q: And upon arriving at that location, what, if anything did you do next in relation to Mr. Culpepper?


A Well, we actually performed somewhat of a felony stop.


Q: Why and what is a felony stop?


A: A felony stop is when we have someone we think is potentially dangerous. We would make – – we would make certain – – I don’t want to say movements, I don’t think movements is the right – – certain procedures how we would stop a vehicle and get the person out of the vehicle. That’s what a felony stop is. And the reason why was because we suspected he had weapons in his – – in his vehicle.


Q: And do you and Officer Hess proceed to make a felony stop by yourselves or did you wait for or did other officers arrive?


A: We had other officers arriving with us simultaneously.


Q: And when – – what happened next? What did – – what occurred next?


A: We all were in position for our felony stop. I instructed Mr. Culpepper to place his hands – – both his hands out the window to show that he didn’t have anything in his hands. And then at that point we converged on the car.


Q: Now, did you personally converge on the car first or did another officer converge on the vehicle and actually deal physically with Mr. Culpepper?


A: We had one officer actually walk to the car while Mr. Culpepper was being covered. And then after that we proceeded to the vehicle.


Q: Okay. And who was the officer that actually approached first?


Detective O’Keafe.


Q: And upon approaching – – did – – did Mr. Culpepper respond to your command to stick his hands out the window?


A: Yes, he did.


Q. And did he keep his hands out the window as per your command until an officer or Detective O’Keefe approached?


A: Yes.


Q: And after Detective O’Keefe approached the vehicle what, if anything, did he instruct or what happened next?


A: We actually instructed Mr. Culpepper to remove himself from the vehicle, which he did.


Q: He complied with that instruction?


A: That’s correct.


Q: And did Detective O’Keefe then take him into custody?


A: Yes.


Again, defense counsel did not object to this testimony. The police procedures concerning the “felony stop” were completely irrelevant to the issues of the trial – whether Terry Culpepper in fact threatened to kill Mary Jean Culpepper, and if he did, whether Mary Jean Culpepper reasonably believed that she was in imminent fear of death under circumstances reasonably causing her to believe the immediacy of the threat and the likelihood that it would be carried out. The sole purpose of that testimony was to have Officer Fiore advise the jury that, in essence, it was the opinion of the police that Terry Culpepper was armed and dangerous. As stated in Evidence Rule 701,


If a witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perceptions of the witness and (b) will assist in understanding the witness’ testimony or in determining a fact in issue.


Neither prong of the evidence rule was satisfied: the opinion of the police was based upon the statements made by the dispatcher, not upon their own observations, and would not assist the jury in either understanding the police testimony or determining a fact in issue.


By adducing this testimony that the police believed Terry Culpepper was armed and dangerous, requiring the performance of a “felony stop,” the State was clearly trying to get the jury to reason that if the police believed it then of course it was reasonable for private citizen Mary Jean Culpepper to believe that she was in imminent danger. The jury never should have heard the opinions of the police, or the reasons therefore (the dispatcher’s comments), which fatally tainted their ability to evaluate the credibility of Mary Jean Culpepper and was thus clearly capable of producing an unjust result.

C.
THE POLICE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY
THAT GUNS WERE INSIDE THE CASES TAKEN FROM
TERRY CULPEPPER’S VEHICLE

The uncontroverted evidence was that Mary Jean Culpepper never saw what was inside the bags which Terry brought out of his bedroom while Mary Jean called the police. Terry Culpepper was not indicted for illegal possession of the guns, in violation of N.J.S.A. 2C:39-5, or possession of the guns for an unlawful purpose in violation of N.J.S.A. 2C:39-4. He was indicted for unlawful possession of a large capacity ammunition magazine, in violation of N.J.S.A. 2C:39-3j.,which count of the indictment was dismissed by the State before the trial. Consequently, it was completely irrelevant to the case, and extremely prejudicial, to have the police testify, especially before Mary Jean Culpepper testified, that Terry Culpepper was arrested while driving away from the property, in possession of a long semiautomatic rifle that has the appearance of an M-16, and a semiautomatic 9 millimeter handgun. 2T22:18-23; 2T24:13-15. Because Terry Culpepper never displayed either of the guns to anyone, the fact that these guns were inside the cases that were displayed had no “tendency in reason to prove or disprove any fact of consequence to the determination of the action.” Evid. R. 401.


Because defense counsel did not object to this testimony, the question is whether this irrelevant evidence had a clear capacity to render an unjust result. The fact that the police found the gun cases in the car was relevant and corroborated Mary Jean’s testimony. However, the unloaded, unused guns which were never displayed to Mary Jean were completely irrelevant. Moreover, the testimony was highly prejudicial in painting Terry, again, essentially, as “armed and dangerous,” simply because he possessed weapons which were described in such great detail. 2T20:9-12. This description was repeated a second time to the jury as the prosecutor had Officer Fiore identify the gun cases which went into evidence:


Q. Officer Fiore, for the record please – please describe what’s been marked as S-1 for identification at this point in time?


A. It is a long rifle case, black in color.


Q. What’s been marked as S-1 for identification that’s before you, is that the same item that you saw removed from Terence Culpepper’s vehicle on June 22, 2001?


A. That’s correct.


Q. Now, are you familiar with the contents fo that gun case as well?


A. Yes I am.


Q. And what is in the gun case?


A. It’s a long rifle, semiautomatic, I believe, and it’s – it’s – it appears – it has the appearance of an M-16.


Q. It’s a semiautomatic. Is that correct?


A. Yes.


Q. Officer, now I’m showing you what’s been marked as S-2 for identification. Can you describe that for the record please?


A. It’s a handgun case, gray in color. …


Q. Now, are you familiar with the contents of that item as well?


A. It’s a nine millimeter handgun.


Q. And can you briefly describe a nine millimeter handgun to the jury? Is it a revolver or is it a semiautomatic?


A. It is a semiautomatic pistol. It has a removable clip, which is the magazine that actually goes in that holds the cartridges.


The officer testified that the guns were operable but not loaded. 2T25.


On direct examination, Mary Jean admitted that prior to June 22, 2001, she had never physically seen a gun and had never seen a gun case. She also did not know whether her brother Terence owned any weapons. 2T56:1-8. On cross-examination, Mary Jean was reminded of her testimony at the probable cause hearing, where she was asked, “Did you know at that date the actual contents inside that case at the time? To which she responded, “No, I did not.”


The fact that she never saw the guns on June 22nd was reiterated on re-direct:


Q. You never actually knew – – and I use the word actually knew what was in the cases. Is That correct?


A. I never saw what was in them, no.


Q. You never saw what was in them.


A. No


As was stated in State v. Hutchins, 241 N.J. Super 353, 358-9 (App. Div.1990):
“Relevant evidence” is evidence having any tendency in reason to prove a material fact. Evid. R. 1(2). All relevant evidence is admissible. Evid. R.7(f). Conversely, irrelevant evidence is inadmissible. Relevancy is tested by the probative value the evidence has with respect to the points at issue. Manieri v. Volkswagenwerk A.G., 151 N.J.Super 422, 429,[citation omitted] (App. Div. 1977), certif. den. 75 N.J. 594, [citation omitted,] (1978). The true test is the logical connection between the proffered evidence and a fact in issue, i.e. whether the thing sought to be established is more logical with the evidence than without it. Id. 151 N.J. Super. at 429-430 [citation omitted] accord State v. Corruzzi, 189 N.J.Super 273, 302 [citation omitted] (App. Div.) certif. den. 94 N.J. 531 (1983)


The rule speaks in term of a “material” fact which is logically probative evidence. This reflects the concept that relevancy is really composed of two parts: probative value and materiality. Biunno, Current Rules of Evidence. comment 2, Evid. R. 1(2) at 4-5 (Anno. 1990) Probative value concerns the tendency of evidence to establish the proposition that it is offered to prove. State v. Allison, 208 N.J. Super. 9, 17 [citation omitted](App. Div. 1985); McCormick, Evidence (3ed.1984), §§185 at 541. A material fact is one which is really in issue in the case. Biunno, supra, Comment 2, Evid. R. 1(2) at 5.


In the present case, there was no logical connection between the unloaded guns which Mary Jean never even saw, and the assertion that Terry Culpepper had threatened to kill her if she came to the property without the requested 24 hours’ notice. Neither did the unseen guns have any bearing on whether Mary Jean reasonably believed she was in imminent danger. “Knowing the circumstantial evidence does not justify any reasonable inference as to the fact in question” State v. Allison, 208 N.J. Super. 9, 17 (App Div. 1985). Knowing that Terry Culpepper legally possessed unloaded and unseen guns in his car, while he was driving away from the property, does not justify the inference that he had threatened his sister.


That the guns, and the testimony about them, were not relevant is underscored by the fact that neither of them were shown, offered or moved into evidence. Further, the Judge discussed the gun cases in his charge to the jury:


You will only consider the facts which in your judgment have been proven by the testimony of the witnesses in this case or from S-1 and S-2 which are the two gun boxes which you will have as evidence in this case. And, by the way, I should tell you the gun boxes will have on them some kind of tape to prevent you from opening them, okay, because it’s not relevant for you to look inside them. It’s relevant for you to look at them if that’s what you want to do. And because they’re moved into evidence they will be in the jury room with you, but the tape is there for a reason, to prevent you from opening them up.


If the insides of the gun cases were not relevant, neither were the contents, which
were never shown to Mary Jean Culpepper. Yet the testimony that the guns were inside the cases had tremendous potential to be inappropriately prejudicial to Terry Culpepper, again portraying him as “armed and dangerous,” thereby having a clear capacity to produce an unjust result.


Although we submit the testimony about the guns was totally irrelevant, in the event this Court feels there was some relevance, we submit the evidence should have been excluded under Evid. R. 403, and failure to so exclude the evidence was an abuse of discretion. Clearly the danger of undue prejudice to Mr. Culpepper, being seen by the jury as armed and dangerous before Mary Jean Culpepper even took the stand, outweighed any probative value due to its capacity to divert the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence. State v. Moore, 122 N.J. 420, 467 (1991)


The State successfully but impermissibly painted Terry Culpepper as armed and dangerous, through hearsay concerning the dispatcher’s comments to the police, irrelevant testimony about conducting a “felony stop” because of the “weapons involved,” and irrelevant testimony concerning weapons which were never even seen by the alleged victim. The jury’s ability to evaluate Mary Jean Culpepper’s credibility – the only State’s witness with actual knowledge of what happened – was eviscerated before she ever took the stand, to the extreme detriment of Terry Culpepper. Consequently the judgment of conviction must be vacated.

ISSUE III
THE DEFENSE WAS IMPERMISSIBLY DENIED THE ABILITY TO PRESENT IT’S CASE.
A.
TAPES OF PHONE MESSAGES LEFT BY COMPLAINANT SHOULD HAVE BEEN ADMITTED INTO EVIDENCE



The State’s case depended entirely upon the credibility of Mary Jean Culpepper. Terry Culpepper’s ability to receive a fair trial depended entirely upon his ability to test Mary Jean’s credibility. Defendant was ham-strung even before the jury was sworn when he tried to demonstrate that Mary Jean only alleged that Terry had threatened her because his arrest was the surest and most convenient way to evict him from the house.


Defendant made a Motion in limine to admit tapes of phone messages (Da 34-39) left by Mary Jean Culpepper on Terry Culpepper’s answering machine, shortly before the incident. These messages included, inter alia, the following statements:


Terry, I’m not going through this bullshit every time I come over the house. You need to get your shit together and get the hell out of there so I can do what I need to do…You are just trying to stall again, okay. I don’t trust you as far as I can throw you. You need to get the hell out of there that way you can blame me every again (sic) for stealing your fucking pots. Message Three.


…I don’t know what you’re trying to do, but you are messing – – you’re screwing everything up. Why won’t you just get out? Why? I don’t understand. Why won’t you just get out and cooperate? Why? I can’t even think of any reason why…. Message Four


Terry, you also need to know that this is not about you. I don’t understand what the hell you’re doing. …I think you’re sick. I really do. You make no fucking sense to me. We need to get this done. You need to get out. Message Five


Terry, you need some help. You really do. I don’t know what the hell you’re trying. All I’m trying to do is get things done. Okay? You don’t know anything about the probate process. Now, you’re going to send me a certified letter. You’re such a fucking jerk, Terry. I can’t even begin to tell you how stupid and a fucking asshole you are. Message Six


Hello, Terry, dear brother. Guess what? I can come in the house anytime I want and you can’t stop me. How about that? I’ll see you soon, baby. Bye-bye. Message Eight


The tape took 4 minutes and 19 seconds to play in its entirety. The Court found that the tape was quite audible, and that the transcript was accurate. Inexplicably, the Court held that the tape or transcript could be used only for purposes of cross-examination:


Relevancy, I don’t see any of those conversations really being relevant unless
Ms. Culpepper says something on the stand that might necessitate from a cross-examination standpoint the use of one or more of those conversations, but certainly in my opinion there’s nothing relevant for purposes of this trial other than perhaps for cross-examination.


The entire defense was premised upon demonstrating that Mary Jean Culpepper trumped up charges of a threat to further her goal in evicting Terry Culpepper from his home so she could “do what she needs to do.” The tapes contained that evidence; thus it is difficult to imagine more relevant evidence. Clearly the defense was ready to play the tape for the jury so they could assess Mary Jean’s credibility at trial in light of explicitly stated motives, along with her hostile bias against her brother, the accused. Preempting the offer, ruling that the tape could not be played because it was not relevant, thus precluding it from the jury’s consideration except on cross-examination if Mary Jean said something contradictory, constitutes reversible error that requires reversal of the judgment of conviction.

B.
DEFENDANT SHOULD HAVE BEEN ALLOWED TO ELICIT TESTIMONY ABOUT COMPLAINANT’S FAILURE TO SIGN A COMPLAINT AGAINST HER OTHER BROTHER


Again, the State’s case was entirely dependent upon the credibility of Mary Jean Culpepper.


Defendant tried to demonstrate that Mary Jean alleged to the police that Terry had threatened her because his arrest was the surest and most convenient way to get him out of the house she was trying to prepare for sale. On cross-examination, the following testimony was adduced:


Q. Now there came a time while you were in the house when your brother Greg was telephoned?


A. Yes.


Q. And you got on the phone with Greg, right?


A. Yes, I did.


Q. And Greg doesn’t live at the house, does he?


A. No, he does not.


Q. Just Terry?


A. That’s correct.


Q. Now as – – as the Co-Executor of the estate, wasn’t it one of your objectives to get Mr. Culpepper to leave the home so you could sell it?


A. Well, it was either he could help me, that was one of the objectives, to have – – help me – –


Q. Was your objective to have him leave the house so you could sell it?


A. Eventually, yes. Yes.


Q. Now, when you’re on the phone with Greg, Greg yelled at you, didn’t he?


A. Yes he did.


Q. And he harassed you, didn’t he?


A. Yes he did.


Q. Called you names, right?


A. Yes he did.


Q. And in fact when you hung up you testified that you felt Greg might be coming over to beat you up?


A. Yes.


Q. Did you file any criminal complaints –


Mr. Thonus: Objection.


Q. – – against Greg that day?


Mr. Thonus: Objection.


At sidebar the Court ruled that because there was no complaint against Greg, the
questions and answers were irrelevant. The objections were sustained.
In fact, it was precisely because there was no complaint filed against Greg that the questions were extremely relevant. The only complaint filed was against Terry Culpepper, the sibling who lived in the house and whom Mary Jean wanted to remove.
The State, on redirect, might have explored possible reasons why Mary Jean did not file a complaint against Greg. If there were such reasons, the jury could have decided what weight, if any, to give the fact that no complaint had been filed. Unfortunately, the jury was not given the opportunity to evaluate the evidence, as Defendant was barred from eliciting it.


The exclusion of the tape of Mary Jean Culpepper’s messages, and the testimony of her failure to complain in any way about Greg’s harassment or threatened behavior, were both relevant. “Except as otherwise provided in these rules [of Evidence] or by law, all relevant evidence is admissible.” Evid. R. 402. ( Evid. R. 403 provides, “…relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.” The Trial Court excluded the proffered evidence as “not relevant,” not on the grounds of Evid. R. 403.) “A Defendant has the right to ‘advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made.’” State v. Garfole, 76 N.J. 445, 453 (1978) as quoted in State v. Williams, 169 N.J. 349, 362-363 (2001). Both Garfole and Williams involved evidence of other crimes similar in nature to the crime of which those Defendants were charged, but for which they had an alibi, the inference to be drawn was that those Defendants could not have been the perpetrators of the crimes of which they were charged.


Here, the issue was whether the complainant had an ulterior motive to make the
complaint, which logically called into question whether a crime had even been committed. The exclusion of this very relevant proffered evidence precluded Terry Culpepper from advancing his defense. This was reversible error and was, again, highly prejudicial to the Defendant, requiring a reversal of the judgment for conviction.


CONCLUSION
For the reasons stated above, the Defendant Terence J. Culpepper respectfully submits
that the judgment of conviction must be reversed and the Defendant must be awarded a new trial.
Respectfully Submitted:
___________________________________
LESLIE STOLBOF SINEMUS, ESQUIRE
Attorney for the Defendant, Terence J. Culpepper
May 5, 2005


End of brief


So here I am convicted of a crime I did not commit due to a corrupt judicial system and prosecutor.




Although I filed a Petition for Post-Conviction Relief, in which I raised the issue of exculpatory evidence that Judge Venezia and the Prosecutor Mark Thonus conspired to suppress and which was required to be presented to the Grand Jury. The Judiciary refuses to follow the law, or the intent of the legislature with regard to the laws that are enacted by it. I no longer have any faith that the judges of this state have the integrity to faithfully execute their duties or their oaths of office; therefore I am demanding a Grand Jury Investigation and the Legislature hold the Judiciary accountable. If the legislature refuses to do so, they will have rendered the New Jersey Judiciary and themselves a farce and the Constitution of the United States a “solemn mockery.” If the law enforcement establishment of the New Jersey state government refuses to take action against the most blatant judicial and law enforcement corruption committed under color of law be committing treason against the People of the United States?

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgements of the courts of the United States, and destroy the rights acquired under those judgements, the constitution itself becomes a solemn mockery…” United States v. Peters

“When a portion of wealth is transferred from the person who owns it – without his consent and without compensation, and whether by force or by fraud to anyone who does not own it, then I say that property is violated; that an act to plunder is committed. I say that the act is exactly what the law is supposed to suppress, always and everywhere. When the law itself commits this act that it is supposed to suppress, I say that plunder is still committed. and I add from the point of view of society and welfare, this aggression against rights is even worse. In this case of legal plunder, however, the person who receives the benefits is not responsible for the act of plundering. The responsibility for this legal plunder rests with the law, the Legislator and society itself. Therein lies the political danger.” Frederick Bastiat


“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law breaker, it breeds contempt for laws; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution.” Mr. Justice Brandies, U.S. Supreme Court – dissent passage,
Olmstead V. United States, 277 U.S. 438 (1928)


“Injustice anywhere is a threat to justice everywhere.” Martin Luther King Junior

July 1, 2008

Terence Culpepper
PO Box 169
Hawthorne NJ 07507

Culpepperoffice@optonline.net

” In this case, the defendant Terence Culpepper was evicted from his home and removed as Co-executor of his father’s estate, without even a passing nod to the principles of elementary due process.”

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5 Comments
  1. Great way to get your point across – Make sure you keep everything you have- it is only a matter of time before the Feds get wise to the corruption in the Justice system in NJ-

  2. I assure you that you will be interested in http://www.whistleblowerRN.com.You can reach me if desired at sspdavidmiller@netzero.com.

  3. won't the fbi investigate civil rights violations?

  4. WOW! And you wonder why people go into there place of employment or anywhere for that matter, hell bent on emptying there weapon of choice into as many people as they can. I know if I was in your shoes and was told I had cancer I would go on a calculated "rampage" serving everybody who has it coming to them. Heck, I may even think about it without the cancer. Just saying.

  5. On March 14, 2003, Governor McGreevey signed Assembly Substitute for SCS for S-429/S-1422/ACS for A-1308/A-342/A-2140 into law as P.L. 2002, c.31. The new law was effective March 14, 2003. The law creates a new crime of official deprivation of civil rights. This crime is committed if a public official, or a person purporting to be a public official, knowingly commits an unlawful act with the purpose to intimidate or discriminate against another person because of race, color, gender, ethnicity, handicap, religion or sexual orientation, and (1) subjects that person to unlawful arrest, detention, including, but not limited to motor vehicle investigative stops, search, seizure, dispossession, assessment, lien or other infringement of personal or property rights; or (2) denies or impedes that person in the lawful exercise or enjoyment of any right, privilege, power or immunity.See if you use this law to sue the judges. Check on the statute of limitations.

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