State of New Jersey v. Howard Myerowitz
108 A.3d 671
| N.J. Super. Ct. App. Div. | 2015Background
- Defendant Howard Myerowitz, an attorney for Liberty Humane Society, was convicted in Law Division (de novo review of Secaucus municipal court) of petty disorderly-persons harassment alleged by Donna Lerner arising from a dispute at a Jersey City board meeting.
- Lerner’s private attorney prosecuted the municipal-court cases; she submitted a Storm-style certification for a related case against Diana Jeffrey but did not submit the Administrative Director’s Rule 7:8-7(b) form or a separate certification expressly covering the Myerowitz prosecution.
- Municipal judge allowed the private attorney to prosecute Myerowitz, finding the matters were being “lumped” and that the attorney’s certification was in "substantial compliance" with the approved form; Law Division initially upheld that decision.
- Myerowitz challenged the municipal court’s allowance of a private prosecutor under State v. Storm and Rule 7:8-7(b), arguing the private attorney never filed the required certification for his case and there were no cross-complaints creating a prosecutorial conflict.
- The Appellate Division concluded the private attorney had not submitted the required Rule 7:8-7(b) certification for Myerowitz’s case, the municipal court improperly relied on a certification related only to the Jeffrey matter, and the court’s lax substantial-compliance approach was improper.
- Court held the failure to enforce the Rule 7:8-7(b) requirements rendered the conviction void ab initio and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a private attorney validly prosecuted Myerowitz without submitting the Rule 7:8-7(b) certification | Municipal/State: municipal judge considered Storm issues jointly and had already approved the private attorney’s role for overlapping matters | Myerowitz: no Rule 7:8-7(b) certification was filed for his case; the certification filed referenced only the Jeffrey matter | Held: Private attorney did not file the required Rule 7:8-7(b) certification for Myerowitz; municipal court erred in permitting prosecution |
| Whether cross-complaints existed to justify appointment of a private prosecutor under Storm/Rule 7:8-7(b) | State: matters were related/overlapping so private prosecution was appropriate | Myerowitz: no cross-complaint by him against Lerner in municipal court; absence of cross-complaints defeats private prosecutor appointment | Held: No actual cross-complaints in record; without cross-complaints Rule 7:8-7(b) justification lacking |
| Whether an unapproved, personal certification can be treated as "substantial compliance" with the Director’s form | State/municipal judge: private attorney’s certification substantially complied and municipal judge had discretion | Myerowitz: form is mandatory; substantial-compliance finding is improper when key questions are omitted | Held: Use of the approved form is not discretionary; significant deviations rendered the certification noncompliant |
| Remedy for failure to comply with Storm and Rule 7:8-7(b) | State: argued prior municipal ruling addressed Storm objections | Myerowitz: conviction void because private prosecutor lacked authority | Held: Failure to enforce Rule 7:8-7(b) violated due process and public-policy concerns in Storm; conviction void ab initio; remanded for new trial |
Key Cases Cited
- State v. Storm, 141 N.J. 245 (Sup. Ct. 1995) (establishes limits and procedural requirements for private prosecutors in municipal courts to protect fairness and avoid conflicts)
- State v. Valentine, 374 N.J. Super. 292 (App. Div. 2005) (explains mandatory nature of Rule 7:8-7(b) compliance and need for judicial oversight to protect court integrity)