STATE OF NEW JERSEY v. ELMO RIVADENEIRA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1033-09T41033-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELMO RIVADENEIRA,

Defendant-Appellant.

_________________________________________________

 

Argued March 17, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

435-03-07.

Milagros Camacho argued the cause for

appellant (Camacho, Gardner & Associates,

LLP, attorneys; Ms. Camacho, on the brief).

John R. Mulkeen, Assistant Prosecutor,

argued the cause for respondent (Edward

J. DeFazio, Hudson County Prosecutor,

attorney; Mr. Mulkeen, on the brief).

PER CURIAM

The Rules of Professional Conduct provide in RPC 1.11(a)(1) and (2):

Except as law may otherwise expressly permit, and subject to RPC 1.9, a lawyer who formerly has served as a government lawyer or public officer or employee of the government shall not represent a private client in connection with a matter:

(1) in which the lawyer participated personally and substantially as a public officer or employee, or

(2) for which the lawyer had substantial responsibility as a public officer or employee . . . .

By leave granted, attorney Donald Gardner appeals his disqualification, pursuant to these rules, as attorney for defendant, Elmo Rivadeneira, who has been indicted in a forty-one-count Hudson County indictment for the kidnapping and rape of three young females and for other related crimes. Gardner's disqualification was sought by the State as the result of his former employment as a Hudson County Assistant Prosecutor during a portion of the period of time when defendant's crimes were under investigation, but before defendant had been definitively identified as the target of that investigation.

As the result of factual disputes regarding the need for disqualification, a hearing was held on the State's disqualification motion, at which Kathleen Couglin, an Assistant Prosecutor in charge of Human Resources, George Domanski, a Lieutenant assigned to the Sexual Assault Victim's Assistance (SAVA) Unit of the Hudson County Prosecutor's Office, Genaro

Rubino, an Assistant Prosecutor charged with obtaining communications data warrants for various units, including SAVA, and Gardner testified.

The hearing revealed the following: Commencing in July 2004, a series of kidnappings and rapes occurred in northern New Jersey and in New York. The first rape took place in Elizabeth, New Jersey, at which time the victim was also robbed of her cell phone. Thereafter, a kidnapping and rape of a sixteen-year-old girl occurred in North Bergen on December 16, 2004. A twenty-six year old woman was kidnapped and raped in Newark on January 12, 2005. Kidnappings and rapes of young women occurred in North Bergen on May 17, 2005, and in Jersey City on August 20, 2005. Two additional sexual assaults occurred in New York City in October 2004 and June 2005 that were similar to those taking place in New Jersey, and in September 2004, an attempted kidnapping in Manhattan was thwarted by the victim. A cell phone was left by the attacker after that September incident.

The rapes triggered an intensive investigation by the Federal Bureau of Investigation, the New York City Police Department, the New Jersey State Police, and the Hudson County Prosecutor's Office. Although defendant was not initially identified as the perpetrator, attention eventually began to focus on him as he was gradually linked to the cell phone belonging to the July 2004 victim, a stocking worn on the face of the person attacking the May 2005 victim, and jewelry stolen from the August 20, 2005 victim. However, defendant was not identified as the alleged perpetrator until October 2006. He was indicted by a Hudson County Grand Jury on February 28, 2007 for crimes arising from the January 12, 2005, May 17, 2005, and August 20, 2005 attacks. Additionally, he was charged in New York for the crimes committed there, and in Union County for the July 2004 crimes. All New Jersey matters are being tried in Hudson County.

The investigation and prosecution of sex crimes such as those with which defendant has been charged is assigned in Hudson County to the Prosecutor's SAVA unit. An updated resume, submitted by Gardner in 2002 in accordance with a directive of the Attorney General, indicates that, commencing in 1985, Gardner was given the position of Specialized Unit Supervisor, with supervisory responsibility for the SAVA unit. In that capacity, Gardner indicated that he managed and supervised the SAVA trial team and advised and directed SAVA detectives. According to the resume, commencing in 1992 and continuing thereafter, Gardner functioned as a Senior Staff Attorney, managing and supervising the SAVA trial team and detectives. Gardner retired from the Prosecutor's Office on January 31, 2006, and is now in practice with Milagros Camacho, whom he married in 2007. The two met in the Prosecutor's Office, where Camacho served as the direct supervisor of the SAVA Unit under Gardner's supervision. Camacho was replaced in that capacity by Assistant Prosecutor Al Iglesias in April or May 2004, prior to the incidents allegedly involving defendant. Camacho represented Gardner at the hearing in this case and remains his attorney on appeal.

Testimony by Lt. Domanski at the hearing disclosed that, during the period that the rapes at issue were being investigated, twice-monthly meetings occurred between the Prosecutor, his First Assistant, and senior staff of SAVA's legal and investigatory teams. According to Domanski, Gardner regularly attended such meetings unless he was ill, on vacation, or on trial. Domanski testified that a prime topic at the meetings was what could be done by the Prosecutor's Office to identify and apprehend the person named in the press as the "North Hudson Rapist" a matter that, at some time before August 2005, had been made a priority by Hudson County Prosecutor Edward DeFazio. According to Domanski, apprehending the attacker was "a very very hot topic of discussion at that time." As Domanski described it,

after the first victim was kidnapped and assaulted which I think was in December I believe from North Hudson and then you know when we started checking with other municipalities and other states and we became involved with New York, I mean things started to heat up and then you know as other victims were kidnapped and assaulted and then you know obviously the pressure gets more and more intense and so there was always, always a feeling of urgency to stopping this.

At the senior staff meetings, a presentation on the status of the investigation would be made, and then, according to Domanski, all the meeting attendees would make comments and suggestions.

[W]e would discuss the progress of the case. We would discuss we would compare the cases, I mean depending on which point in time we were at with the cases. Of course our concerns with the cases, how to go about obtaining maybe a search warrant if we needed to or other paperwork. I mean everything and anything possible. We would compare cases from other jurisdictions. We would discuss issues going on between us and the different agencies, the state police, Union County, New York City P.D., everything.

Domanski stated that, during the period of the investigation, the North Hudson Rapist "was just the number one topic of our discussions." Although he could not recall Gardner's particular comments, Domanski was confident that he had participated in the discussions. Additionally, Domanski testified that he had spoken to Gardner individually regarding each of the assaults that had taken place. Further, Gardner was the recipient of "Chief Sheets," addressed to the Chief of Investigations, John Hill, and his Deputy Chief that contained a summary of the facts of each case as it was reported to the Hudson County Prosecutor's Office. Gardner also had access to a case track computer system that contained summaries of the investigation, as updated by the detectives assigned to that endeavor.

Testimony by Gardner differed from that of Domanski. According to Gardner, during the period in question, he "was transitioning out" of his position, "cleaning up my stuff, making sure that when I left which I did in I guess late January or early February of 2006, that I left a clean desk as opposed to a lot of loose ends that people would have difficulties with and that took quite a while." Rather than focusing on office matters, Gardner stated that he was engaged in "future thinking." Additionally, Gardner testified, he was heavily involved with establishing the sexual assault response team (SART) program and child advocacy center and in developing their multidisciplinary approach to crimes against children.

Although Gardner admitted that he had supervisory authority over the SAVA unit, he emphasized that there was a line supervisor beneath him successively, Assistant Prosecutors Simon, Camacho or Iglesias who had actual authority over the unit. According to Gardner, his other responsibilities precluded him from effectively monitoring the SAVA unit. Legal advice to SAVA investigators, Gardner claimed, was provided by Camacho or Iglesias, not him. However, Gardner stated that he did review SAVA investigatory files when matters were being prosecuted and the need to assign prosecutors for trial arose, or when investigators sought to close files.

Gardner denied that he was otherwise involved in any respect with SAVA investigations, illustrating that point by use of an organizational chart that depicted the investigatory staff as supervised by Chief of Investigations Hill. Although his 2002 resume stated that he had supervisory authority over SAVA detectives, Gardner asserted that the responsibility was taken from him during the period of Prosecutor DeFazio's tenure, and that both Chief of Investigations Hill and his immediate subordinate had instructed him not to direct the course of investigations. Nonetheless, Gardner expressed great dissatisfaction with the quality of the investigatory work being performed, particularly by SART investigators, and he testified that as a result, he forced the reassignment of one of the supervising investigators to a different unit, thereby engendering great animosity among the remaining investigators. In fact, Gardner testified that his decision to leave the Prosecutor's Office was largely motivated by the deterioration in investigatory quality that he witnessed.

In order to ensure that matters under investigation did not get lost, Gardner demanded that he receive copies of the Chief Sheets prepared by the investigators as matters arose including, as Chief Sheets placed in evidence demonstrate, the rapes at issue. Indeed, Gardner's name appears as the third person on the distribution list set forth on those sheets. However, Gardner testified that he might or might not read them. Significantly, Gardner testified that his receipt of the sheets was intended by Gardner as a reminder to the investigators that their work was being monitored.

Gardner admitted that he had access to the office's computerized case tracking system. However, he professed an inability to access it.

With respect to the senior staff meetings about which Domanski testified, Gardner admitted to attending "a number" of them, but stated that he tried to avoid them. Nonetheless, he testified that "toward the end I remember that I believe I went to like I went to several I think toward the end but I couldn't specifically tell you what was going on." Gardner stated as a general proposition that he had no recollection of matters discussed at the meetings, and he claimed that presentations by investigators regarding current investigations were short in length and provided and overview, not a detailed analysis of what was occurring. Gardner stated that Domanski had attended "a handful" of senior staff meetings, but he did not recall any of his presentations or any conversations with him during the relevant time period. Gardner denied ever talking with Domanski outside of senior staff meetings about the rapes or about any other investigation he was conducting. Gardner also denied ever hearing the name North Hudson Rapist, he did not recall any discussion of the rapes at issue, he had no knowledge of newspaper reports of the serial rapist in the Jersey Journal, and he professed to have no knowledge of an episode of the America's Most Wanted television show that featured the agencies' investigations into these crimes, including that performed by the Hudson County Prosecutor's Office.

Because, as counsel to defendant, Gardner had read the discovery in the matter, he was aware of the chronology of the investigation. However, he testified that he lacked knowledge of the investigation at the time it was occurring. Gardner testified:

I do not have any recollection of being present when this matter was discussed. I know the chronology of events. I know when people came forward, when DNA was recovered. And it all falls within the last several weeks before me leaving and I know the last several weeks before me leaving was a point in time when I was either not participating in any of the activities within the office or quite honestly more focused on where I was going and what I was going to do after twenty seven years in the prosecutor's office.

On July 14, 2009, the motion judge placed her oral opinion in the matter on the record. After summarizing the testimony provided by Domanski and Gardner and finding Domanski's version of events to be credible, the judge found that:

[Gardner] was head of the [SAVA] unit, that he had substantial responsibility whether or not he chose to take it. I find that he was involved in discussions about an unknown but serial rapist. And that was a primary topic, not in the office but certainly in the sex crimes unit which he supervised.

Additionally, the judge found that Gardner had received data or information about the assaults as they occurred. As a consequence of this knowledge, the judge ruled that Gardner should be disqualified from representing defendant. She stated:

I believe that even if he chose not to pay attention or was diverted otherwise by another project or about his leaving the office and his plans for what he was doing when he what he wanted to do when he left the office, he was still the supervisor of that unit.

The judge acknowledged that Gardner had left the Prosecutor's Office by the time that Rivadeneira was identified as a target of the investigation. However, she stated:

[A] defense attorney in cross examining State's witnesses may well want to focus or cross examine on why he was not a subject or a target for such a long time, what other leads the prosecutor's office may have had during that period of time, why other things may or may not have been done during that period of time. Mr. Gardner is in no position to properly cross examine anybody about something like that.

The judge acknowledged that the simple fact that Gardner had worked in the Prosecutor's Office was insufficient to provide a foundation for a disqualification decision. However, she reasoned:

[G]iven his rank in the office, given the fact that he was privy to internal workings of the office to investigations and these assaults occurred during the time period when he was in the office and like it or not, had responsibility for investigating[, w]hether he chose to or not, to guiding the investigators, to guiding the legal team, to counseling with the prosecutor on these matters, he had that responsibility.

The judge then found that, under the totality of the circumstances, Gardner should not be permitted to represent defendant, despite defendant's wishes to the contrary.

What the rules of professional conduct address is the integrity of the system and I simply feel that this representation is wrong under the rules and I do find that he has had substantial supervisory authority while in the office while these cases began.

Leave to appeal was granted.

On appeal, Gardner makes the following arguments:

POINT I

RULE OF PROFFESSIONAL CONDUCT 1.11 DOES NOT UNDER THE CIRCUMSTANCES OF THIS CASE CALL FOR THE DISQUALIFICATION OF DEFENDANT'S ATTORNEY OF CHOICE BECAUSE THE STATE FAILED TO MEET ITS BURDEN AND THE FINDINGS MADE BY THE TRIAL COURT ARE NOT SUPPORTED BY THE RECORD.

POINT II

THERE IS A CONSTITUTIONAL PRESUMPTION IN FAVOR OF COUNSEL OF ONE'S CHOICE AND IN THE WITHIN CASE THAT PRESUMPTION HAS NOT BEEN REBUTTED.

Our review of this matter is guided by the familiar principle that we must affirm the judge's factual findings if they are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). In this respect, we afford deference to the judge's ability to gauge credibility. Brundage v. The New Jersey Zinc Co., 48 N.J. 450, 478 (1967). The judge's legal conclusions are subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995).

Contrary to Gardner's arguments, we find that adequate factual support to exist to provide a foundation for the motion judge's conclusion that Gardner was "privy to internal workings of the office [and] to investigations" when investigations into these assaults were taking place. In this regard, the motion judge viewed as credible Domanski's testimony that Gardner regularly attended SAVA senior staff meetings at a time when identification of the North Hudson Rapist was the primary focus of the SAVA unit and a major concern of Prosecutor DeFazio, and that the progress of the investigation into the assaults was discussed in detail not only by investigatory personnel at the meeting but also by all of the other meeting participants, including Gardner. Although Gardner professes not to recall any of these discussions, or even the fact that the North Hudson Rapist existed or remained at large, his lack of recollection does not negate Domanski's description of what the judge found actually took place.

While the scope of Gardner's authority over the investigators is contested, Gardner himself stated in his resume that his job responsibilities included supervision of the SAVA detectives. Testimony by Gardner suggests that such supervision ceased by 2004. However, we note Gardner's testimony that, in this latter period and until his retirement, he remained dissatisfied with the work being performed by the investigators, and that he was instrumental in obtaining the transfer of an investigator whom he accused of malfeasance. Additionally, it is clear that Gardner retained sufficient supervisory authority in this period to permit him to demand copies of Chief Sheets that detailed the crimes at issue data that Gardner concedes he sought in order to ensure that the investigators were doing their job and not ignoring files. Evidence additionally suggests, despite Gardner's denials, that he retained a role as the legal advisor to the investigatory staff. Even he concedes that, in the relevant time period, it was his job, not that of Camacho or Iglesias, to assign files to prosecutors in the SAVA unit for trial.

Turning to the issue of whether the facts found by the motion judge are sufficient to require disqualification pursuant to RPC 1.11(a)(1) or (2), we are guided first by In Re Advisory Opinion on Professional Ethics No. 361, 77 N.J. 199 (1978). In that case, a number of assistant prosecutors challenged the opinion rendered by the Advisory Committee on Professional Ethics imposing a per se bar, on appearance of impropriety grounds, on the representation of a defendant by a firm if the defendant was investigated or under indictment during the time an associate of the firm was on the staff of the county prosecutor concerned with the matter. Although the appearance of impropriety standard is no longer applicable, we find relevant the Court's discussion of the governing ethics rule's requirement that an attorney not accept private employment "in a matter in which he had substantial responsibility while he was a public employee." Disciplinary Rule 9-101B. The Court stated in that connection:

If the assistant county prosecutor has investigated or participated in any investigation in any manner or to any extent, he should be foreclosed from representing in that or any related matter any person who had been the subject of the investigation or is indicted or tried as a result of that investigation.

[Id. at 202-03.]

Further, the court found that acquisition of any actual knowledge of the facts obtained by virtue of the attorney's position was also disqualifying. Id. at 203-04. And, the Court held, "responsibility, whether exercised or not, over the subject matter is automatically disenabling." Id. at 204.

Advisory Opinion 361 was followed by the Court in Ross v. Canino, 93 N.J. 402 (1983). There, the Court stated:

In addressing the question whether a conflict exists, we have determined that any participation in the investigation of a matter by a government attorney is a per se bar to representing a private client in the same matter. . . . The acquisition of actual knowledge in the course of an investigation will also disqualify a former government attorney from representing an adverse private client. Similarly, a former government attorney will be disqualified if he was substantially responsible for an investigation even if he did not exercise that responsibility.

[Id. at 407.]

In Ross, the issue was whether Attorney General Degnan should be disqualified from representing plaintiffs in a civil suit because one or more divisions in the Department of Law and Public Safety investigated matters relating to the suit while Degnan was the Attorney General. Determining that he should not be disqualified, the Court found, in language of significance to the present matter, that although Degnan had "ultimate responsibility" for the investigation, his role was not "tantamount to substantial responsibility." Id. at 409.

We rely as well upon Ethics Opinion No. 614 (1988). In that opinion, the New Jersey Supreme Court's Advisory Committee on Professional Ethics discussed what constituted "substantial" personal participation by a government lawyer in a matter pending in the office before the lawyer's government service ended. The Committee observed that in Ross, "advice by a subordinate to the former attorney general that a subpoena had been served on a witness in the matter was not considered 'substantial' participation by the former attorney general." However, the Advisory Committee then stated: "if the attorney had any occasion to review the file or discuss it for any purpose including the assessment or consideration of its substance or weight for the purpose of assigning it to subordinates that would be substantial participation."

Additionally, the Advisory Committee considered what constituted "substantial responsibility" under the provision of RPC 1.11(a) that now corresponds to RPC 1.11(a)(2). In that regard, the Committee noted that

"substantial responsibility" has been interpreted in both In re Advisory Opinion 361, supra, and in Ross v. Canino, supra, as not including bare "overall" or "ultimate" responsibility. It must be something more. But we believe that the active exercise of responsibility for the matter such as making a decision with respect to a matter of substance will qualify as "substantial responsibility."

Our review of the record in light of this precedent satisfies us that, as a legal matter, disqualification was required by either RPC 1.11(a)(1) or (2). The evidence adduced by the State was sufficient to establish Gardner's substantial participation in the investigation of the crimes now attributed to defendant through his participation in discussions regarding the course of the investigation at SAVA senior staff meetings, as recounted by Domanski. Additionally, actual knowledge of the crimes was imparted through the Chief Sheets containing the details of the crime, which Gardner admits receiving and sometimes reading.

With respect to the applicability of RPC 1.11(a)(2), we conclude that the evidence was sufficient to establish Gardner's "substantial responsibility" for the SAVA unit, including the SAVA investigators, during the initial investigation of the identity of the serial rapist in 2004 and 2005. As we have stated previously, in his resume, Gardner claimed that, among his job responsibilities, was the supervision of the SAVA attorneys and detectives. Even if his supervisory authority over the detectives was diminished by 2004, he nonetheless retained the power to require the transfer of an investigator whose reports Gardner challenged and to require receipt of investigatorial Chief Sheets, including those relevant to the crimes at issue so as to ensure that the investigators were not neglecting matters assigned to them.

We recognize, as did the motion judge, defendant's right to counsel of his own choice. State v. Furguson, 198 N.J. Super. 395 (App. Div.), certif. denied, 101 N.J. 266 (1985). However, as we held in that case, the right to such counsel "'cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice and deprive such courts of the exercise of their inherent powers to control the same.'" Ibid. (quoting Smith v. United States, 288 F.2d 259, 261 (D.C.Cir. 1923)). This case presents such a circumstance as the result of the operation of RPC 1.11(a)(1) and (2). We concur in the motion judge's conclusion that Gardner must be disqualified, and defendant must retain new counsel.

Affirmed.

 

Hill was deceased at the time of these hearings.

Defendant's DNA was found on the abandoned cell phone found with the September 2004 Manhattan victim and on the stocking that the attacker placed over his head during the May 2005 North Bergen attack.

(continued)

(continued)

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A-1033-09T4

August 3, 2010