Court Tosses Lawyer’s Conviction Won By A Private Prosecutor Michael Booth, New Jersey Law Journal

A New Jersey appeals court has overturned a lawyer’s conviction for harassment, finding that a municipal court judge improperly allowed the complaining witness to pursue the case using her personal attorney as a private prosecutor.

In a published opinion, the three-judge Appellate Division ruling said Feb. 18 that the convicted lawyer, Howard Myerowitz, was denied a fair trial after Secaucus, New Jersey, Municipal Court Judge Kathleen Walrod allowed the complaining witness to have her personal attorney, Matawan, New Jersey, solo Maria Noto, prosecute the case.

“We agree with defendant that the conviction for harassment is procedurally defective and cannot stand as a matter of law,” Appellate Division Judge Jose Fuentes said in State v. Myerowitz. Judges Victor Ashrafi and Amy O’Connor joined in the ruling.

“It’s nice to see they got it right,” said Myerowitz, who is with the Song Law Firm in Fort Lee, New Jersey. “There was no legal basis for [Noto] to be prosecuting the case. The case did not qualify for a private prosecutor.”

Myerowitz, who represented himself on the appeal, said the Secaucus municipal prosecutor at the time declined to prosecute the case.

The harassment charge levied against Myerowitz stemmed from a Jan. 31, 2011, meeting of the board of directors of a Jersey City, New Jersey, animal welfare group, the Liberty Humane Society, according to the appeals court’s opinion. Myerowitz represented the humane society in a civil harassment and defamation claim against the complaining witness, Donna Lerner, and other members of a group that Myerowitz described as a “‘fringe animal rights group.’”

Lerner was present at the meeting, which took place at a conference room at the city hall, according to the opinion. When it came time to discuss the litigation, Myerowitz invoked the attorney-client privilege and told Lerner she would have to leave the room.

Lerner and her supporters left the room, the opinion said, but left personal items behind. Myerowitz gathered those items and put them outside in the hallway, where Lerner was standing.

Lerner alleged that Myerowitz got in her face and yelled at her to leave, an allegation Myerowitz denied, according to the opinion. Myerowitz said he tried to have the police eject Lerner from the building because she was trying to illicitly tape record the board’s discussion of the lawsuit.

Lerner filed the harassment charge against Myerowitz in Jersey City, but the matter was transferred to Secaucus because of the pending civil litigation.

Fuentes said the state Supreme Court recognized the problems posed by having criminal cases handled by private prosecutors in its 1995 ruling in State v. Storm, and issued specific guidelines that must be followed in the appointment of a private prosecutor in R. 7:8-7(b).

Justice Stewart Pollock, writing for the court in Storm, said that in general, allowing for the use of private attorneys as prosecutors could lead to the “erosion of public confidence” in the municipal courts.

“The overarching argument against private prosecutors is the risk they pose to a defendant’s right to a fair trial,” Pollock said. “A private prosecutor’s dual responsibilities to the complaining witness and to the state breed numerous problems.

“Inevitably, private prosecutions undermine confidence in the integrity of the proceedings,” Pollock said.

Private prosecutors should only be retained if there are cross-complaints filed by various parties that would create a conflict of interest for the appointed municipal prosecutor, Pollock said.

An attorney retained to be a private prosecutor must fill out a specific form approved by the Administrative Office of the Courts, in which the attorney seeking to act as a private prosecutor details why that retention is necessary.

That was not done in this case, Fuentes said. Instead, Noto had submitted a certification stating that she was going to act as the private prosecutor in a separate harassment claim against Myerowitz’s wife, Diana Jeffrey.

Walrod allowed Noto to act as the private prosecutor in both cases. Jeffrey, represented by her husband, ultimately was acquitted.

“In the absence of actual cross-complaints that create an insurmountable conflict of interest for the prosecutor, there are no legal grounds for the municipal court to permit a private attorney to represent the state,” Fuentes said.

Noto said she would not participate in any further proceedings should Lerner or the Hudson County Prosecutor’s Office, which represented the state on the appeal, decide to pursue the matter again.

“I didn’t enjoy prosecuting a fellow attorney,” Noto said. “I did what I believed I was permitted to do and what I needed to do in representing my client. I did what the court permitted me to do.”

“When the Appellate Division renders a published decision in a 29-page opinion, it sends a strong message,” said Jeffrey, who is an assistant corporation counsel for Jersey City. “Anyone can file a municipal complaint, but it’s up to the private bar and the court to act responsibly in following the rules of court.”

Myerowitz said if the Hudson County Prosecutor’s Office seeks to have him tried again, he will move to have the case dismissed on double jeopardy grounds.

Walrod, a Secaucus solo who no longer is the town’s municipal court judge, did not return a telephone call. The Hudson County Prosecutor’s Office also did not respond to a request for comment.

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