Today, I wrote the following letter, which should be self explanatory, to Ocean County Prosecutor Marlene Lynch Ford. The exhibits referred to in the letter are on-line here: http://ogtf.lpcnj.org/2010105pJ//b10418HolmesExhibits.pdf
John Paff
Somerset, New Jersey
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April 18, 2011
Marlene Lynch Ford, Esq.
Ocean County Prosecutor's Office
119 Hooper Ave
Toms River, NJ, 08754 (via E-mail toThis email address is being protected from spambots. You need JavaScript enabled to view it. )RE: State v. Holmes
Ind. No. 10-06-01190-ADear Prosecutor Ford:
Karl de Vries's August 27, 2010 Star Ledger article ("Hillside cop receives 3 years probation in domestic shooting") reported that Hillside police detective James Holmes was sentenced to three years probation for "shooting his stepson during a domestic dispute in his Toms River home." A copy of that article is attached as Exhibit Page 1.
After reading that article, I endeavored to learn whether Officer Holmes was, in accordance with N.J.S.A. 2C:51-2, a) required to forfeit his position as a Hillside police officer and b) disallowed from holding public office or employment in the future.
After filing requests under the Open Public Records Act and the similar rules regarding access to records held by the New Jersey Judiciary, I have come to the conclusion that the sentencing court did not rule and was not asked to rule on these forfeiture questions.
According to N.J.S.A. 2C:51-2(a)(1), a defendant is to supposed to forfeit his or her present public employment if he or she "is convicted under the laws of this State of an offense involving dishonesty OR of a crime of the third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would be such an offense or crime." (emphasis supplied).
Given the emphasized disjunctive, a conviction for a crime of the third degree triggers forfeiture of a defendant's current public position regardless of whether the offense involved "dishonesty." See, State v. Rodriguez, 383 N.J.Super. 663, 666 (App. Div. 2006) ("Forfeiture of defendant's position as a police officer was therefore mandatory in light of his conviction of third-degree leaving the scene of a fatal accident.")
Holmes' "Judgment of Conviction," attached as Exhibit Page 2, shows that he pled guilty to Aggravated Assault which is listed on the Judgment as a crime of the third degree. Yet, despite the statutory mandate that a forfeiture order be entered "immediately upon . . . a plea of guilty . . . unless the court . . . orders a stay," nothing within the Judgment of Conviction's "Sentencing Statement" shows that Holmes was required to forfeit his position as a Hillside Police Officer.
My conclusion that Holmes was not required to forfeit his position as a result of his guilty plea is supported by a January 7, 2011 e-mail from Ocean County Criminal Division Manager Eric R. Muniz, attached as Exhibit Page 3. Mr. Muniz states that although Holmes acknowledged on his plea agreement that he "understood that he could be required to forfeit his job or position . . . there are no other records in the file and nothing either ordering that he forfeit or not forfeit his position." See also, a January 11, 2011 from Hillside Police Chief Robert B. Quinlan, attached as Exhibit Page 4, stating that as of that date, Holmes was still employed as a Hillside Police Officer although he was "suspended without pay."
In addition to forfeiture of Holmes' present job, N.J.S.A. 2C:51-2(d) provides that he can be forever disqualified from holding any public position if his conviction was for “an offense involving or touching on his public office, position or employment."
The fact that Holmes was off duty when the shooting occurred does not exempt him from prospective forfeiture. Moore v. Youth Correctional Institute, 119 N.J. 256, 269 (1990). If you review the cases cited on page 667 of the Rodriguez decision, I believe that you'll agree with me that it's very likely that a court, if asked, would rule that Holmes' conviction should forever disqualify him from holding an office of public trust.
At this juncture, it appears that the sentencing court overlooked its responsibility to apply the forfeiture statute to Holmes. Fortunately, N.J.S.A. 2C:51-2(g) provides that whenever forfeiture is not raised in court at the time a guilty plea is entered, your office or the Attorney General's office may apply to the court for an order requiring both present and prospective forfeiture.
Would you please let me know whether or not you will exercise your discretion under N.J.S.A. 2C:51-2(g) and seek both types of forfeiture against Holmes?
Thank you for your attention to this matter. I look forward to hearing from you.
/s/ John Paff