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HomeMy Public PortalAbout98:01 ( ri inanee the ;ouncilman__ Presents the following Ordinance Seconded by Councilman AN ORDINANCE TO SUBSTANTIALLY AMEND AND EXPAND THE PROVISION OF CHAPTER 4, SECTION 4-27G OF THE BOROUGH ORDINANCES REGARDING THE OFFICE OF MUNICIPAL PUBLIC DEFENDER WHEREAS, P.L. 1997, Chapter 256 was adopted which requires each municipality to appoint a Municipal Public Defender; and WHEREAS, although the Borough of Carteret has previously established the Office of Public Defender by Ordinance #97-57, the new law requires certain modifications PURPOSE. The purpose of these revisions and additions is to properly reflect and incorporate the requirements and provisions of P.L. 1997, Chapter 256 into the Borough's ordinances. ACCORDINGLY, Chapter 4, Section 4-27G1 et seq. is hereby amended as follows: A. The existing ordinance which has been codified as Section 4~27G of the Borough Ordinances Regarding the Municipal Public Defender, is hereby rescinded in its entirety effective immediately. B The following is hereby adopted in substitution and replacement of said previous ordinance and shall be substituted in its stead: PUBLIC DEFENDER 4-27G 1. Established. The Mayor and Council do hereby establish the position of Municipal Public Defender. 4-27G 2. Appointment: Term a.) There shall be at least one Municipal Public Defender, who shall be appointed by the Mayor with the advice and consent of the Council. Each appointment shall be for a term of one (1) year, which shall commence as of the first day of January of the year of appointment and shall continue until December 31st of such year or until such later date as on which a successor is appointed and and qualified. b.) In such event as the Governing Body should by resolution determine a need for the appointment of more than one (1) public defender, then the Governing Body may act to appoint additional Municipal Public Defenders in the same manner and to serve for concurrent one (1) year terms. If an additional Municipal Public Defender is appointed then the Governing Body shall designate one of the Municipal Public Defenders to be "Chief Municipal Public Defender". The Chief Municipal Public Defender shall have authority over other Municipal Public Defenders serving that court with respect to the performance of their duties. PAGE_ 2 98-1 4-27G Qualifications. Each Municipal Public Defender shall be an attorney-at-law of this State in good standing and shall have not less than a minimum of three (3) years experience as a practicing attorney having experience in the representation of private and/or governmental clients before the Superior and/or Municipal Courts within the State of New Jersey with respect to matters involving the prosecution and/or defense of charges of violations of criminal, and/or motor vehicles statutes and/or municipal police ordinances. 4-27G Duties. It shall be the duty of the Office of the Municipal Public Defender to represent, except in the case of temporary unavailability or conflict of interest, any defendant charged with an offense in Municipal Court who is an indigent municipal defendant entitled to representation pursuant to P.L. 1997, c256.. All necessary services and facilities of representation pursuant to this act, including both expert and lay investigation and testimony, as well as other preparations, shall be provided in every case. The Municipality shall be responsible for payment of services pursuant to this section. The factors of need and real value to a defendant may be weighted against the financial constraints of the municipality in determining the necessary services and facilities of representation. The final determination as to necessity for services required shall be made by the municipal court. The Office of Municipal Public Defender shall be responsible for handling all phases of the defense, including but not limited to discovery, pretrial and post-trial hearings, motions, removals to federal district court and other collateral reasonably related to the defense, as provided by P.L 1997, c.256, the municipality shall not be required to pay for the expert and lay investigation or testimony until March 22, 1999. The Office of Municipal Public Defender shall represent an indigent defendant charged in municipal court with a crime as specified in NJS. 2B: 12-18 or, if in the opinion of the municipal court, there is a likelihood that the defendant, if convicted of any other offense will be subject to imprisonment or other consequence of magnitude, the office of Municipal Public Defender shall represent an indigent defendant. 4-27G 5. Vacancies; Conflicts: If there is a vacancy in the office of Municipal Public Defender, if the Municipal Public Defender is temporarily unavailable, or if a finding of conflict of interest precludes the Municipal Public Defender from representing an indigent defendant, the Municipal Prosecutor may prosecute the offense if the municipal court appoints a qualified attorney to represent the indigent defendant. Unless rates are otherwise established by the municipality, the attorney shall be entitled to compensation at the same rate as attorneys hired by the Office of the Public Defender in conflict cases, with payment to be made within 30 days. Once appointed, the attorney shall carry out all duties of the Municipal Public Defender in connection with the case that is the subject of the appointment. PAGE 3 NO. 98-1 4-27G 6. Determination of Eligibility Eligibility for services of the Municipal Public Defender shall be determined by the municipal court on the basis of the need of the defendant, except as otherwise provided hereinafter relative to any defendants who are under the age of 18 years. Need shall be measured according to Section 14 of P.L 1967, c43 (C2A: 158A-14) and gmidelines promulgated by the New Jersey Supreme Court. In the event that a determination of eligibility cannot be made before the time when the first services are to be rendered, or if an initial determination is found to be erroneous, the municipal court shall refer the defendant to the Municipal Public Defender provisionally, and if subsequently it is determined that the defendant is ineligible the municipal court shall inform the defendant, and the defendants shall be obliged to engage his own counsel and to reimburse the municipal court for the cost of services rendered to that time. The municipal court shall make an investigation of the financial status of each defendant seeking representation pursuant to this act and shall have the authority to require a defendant to execute and deliver written requests or authorizations required under applicable law to provide the court with access to records of public or private sources, otherwise confidential, as may be of aid in evaluating eligibility. The Court is authorized to obtain information from any public record office of the State or of any subdivision or agency thereof on request and without payment of the fees ordinarily required by law. Whenever a person entitled to representation by a Municipal Public Defender pursuant to this act, is under the age of 18 years, the eligibility for services shall be determined on the basis of financial circumstance of the individual and the financial circumstances of the individual's parents or legal guardians. The municipality shall be entitled to recover the cost of legal services from the parent or legal guardian as provided in Section 16 of P.L. 1997, c. 256, and the municipal court shall have authority to require parents or legal guardians to execute and deliver the written requests or authorization required under applicable law in order to provide the court with access to records of public or private sources, otherwise confidential, as may be of aid to it in evaluating eligibility. If the defendant has or reasonably expects to have means to meet some part, though not all, of the cost of the services rendered, the defendant shall be required to reimburse the municipality, either by a single payment or in installments in such amounts as he can reasonably be expected to pay; but no default or failure in making payment shall affect or reduce the rendering of services. 4-27G 7. Payment Lien. A municipality shall have a lien on any property to which the defendant shall have or acquire an interest for an amount equal to the reasonable value of the services rendered to a defendant pursuant to this act as calculated at the same rate as the Office of the Public Defender bills clients at that time. To effectuate such a lien for the municipality, the municipal attorney shall file a notice setting other services rendered to the defendant and the reasonable value thereof with the Clerk of the Superior Court. The filing of the notice with the Clerk of the Superior Court shall constitute a lien on property for a period of 10 years from the date of filing, unless discharged sooner and except for such time limitations, shall have the force and effect of a judgement. Within 10 days of the filing of the notice, the municipal attorney shall send by certified mail, or serve personally, a copy .of the notice with a statement of the date of the filing to or upon the defendant at the defendant's last know address, lfthe municipal attorney shall fail to give notice, the lien is void. 98-1 PAGE 4 NO. 4-27G 8. Application Fee for Representation by Municipal Public Defender. a.) Persons applying to thc Carteret Municipal Court for representation by a Municipal Public Defender or court approved counsel shall be required to pay an application fee of not more than $200.00, but only in an amount necessary to pay the costs of the Municipal Public Defender services. b.) In accordance with guidelines promulgated by the Supreme Court, the municipal court may waive any required application fee, in whole or in part, only if the court determines, in its direction, upon a clear and convincing showing by the applicant that the application fee represents an unreasonable burden on the person seeking representation. The municipal court may permit a person to pay the application fee over a specific period of time not to exceed four months 4-27G 9. Funds Deposited in Dedicated Fund. Funds collected pursuant to subsection a. of this section shall be deposited in a dedicated fund administered by the Chief Financial Officer of the municipality or in the case of a joint municipal court in a manner agreed to by the constituent municipalities. Such funds shall be used exclusively to meet the costs incurred in providing the services of a Municipal Public Defender including, when required, expert and lay investigation and testimony. 4-27G 10. Fund Monitoring and Reporting. The Municipal Public Defender or, if there is more than one, than the Chief Municipal Public Defender shall obtain from the Municipal Court and from the Chief Financial Officer of the Borough such information as is necessary so as to be able to prepare an Interim and Annual Report, which shall summarize the number of applications received; number approved; number assigned to the Office of the Municipal Public Defender; number assigned to appointed counsel; number of cases disposed; number pending; total fees assessed; total fees collected; total fees receivable; principal dollar amount of lines forwarded for processing; total salary expenses; total fees appointed to counsel; total payments for expert and lay investigation and testimony, and all other services provided and expenses incurred in relationship to such services as are provided by the Borough in behalf ofindigent defendants. Said reports shall also contain a statement as to whether the amount of money in such dedicated fund exceeds by more than 25% the amount which was expended by the municipality during the prior year to provide the services of a Municipal Public Defender. An Interim Report for the eight months ended August 31 st of each year shall be prepared and submitted to the Governing Body, with a copy to the Municipal Court and the Chief Financial Off~cer by September 30th of each year. An Annual Report for the twelve months ended December 31 st of the immediately preceding year shall be prepared and submitted in the same manner as the Interim Report by March 15th of each year. NO. 98-1 PAOE_ 5 4-27G 11. Rates for Court Appointed Counsel. In such event as no Municipal Public Defender is available or able to represent an indigent defendant (as is defined by PL. 1997, c.256) and the municipal court appoints an attorney to provide such representation, then such court appointed attorney shall be entitled to be compensated based upon the following rates: a.) $50.00 per hour for se~wices rendered outside actual court appearance, not to exceed five (5) hours without express written authorization of the court. h) $75.00 per hour for actual court appearances, not to exceed $150.00 per court appearance, without express written authorization of the court. 4-27G 12. Severability. If any part of this Chapter of the Code of the Borough of Carteret shall be held invalid, the holding shall not affect the validity of the remaining parts of this Chapter. If any part of this Chapter is held invalid in one or more of their applications, the rules shall remain in effect in all valid applications that are severable from the invalid application. The Ordinance shall become effective upon adoption after publication thereof in accordance with law. DO NO I' USE SPACE BELOW 'I'IIIS I.IIqE __ RECOIti) ()lr COUNCIl, vOTE Januar~ 1998 Adopted on first ~eacling of dm Cou.cil of the Bmo.gh of Cmlcrel, N.J., Adopted on second ~cading afler hcm'ing on FEBRUARY 5 ~ 1998