Opinion
DOCKET NO. A-3248-12T2
12-13-2013
STATE OF NEW JERSEY IN THE INTEREST OF T.Z., A Juvenile.
Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant T.Z. (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, of counsel and on the brief). Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Liebman, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Sabatino.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. FJ-20-360-13.
Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant T.Z. (Joseph E. Krakora, Public Defender, attorney; Mr. Taylor, of counsel and on the brief).
Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Liebman, of counsel and on the brief). PER CURIAM
In this juvenile matter, we consider interlocutory issues of venue and waiver following our order granting appellant T.Z.'s motion for leave to appeal. Because the case has yet to be tried, we discuss the facts only briefly and with a recognition that the trial evidence may differ from what presently appears in the record.
Appellant, a resident of Essex County, was charged in a September 2012 juvenile complaint in Union County with participating in an armed robbery of a convenience store in Union Township on July 10, 2012. At the time of the robbery, appellant was sixteen years of age. He has since attained the age of eighteen.
According to the State's anticipated trial proofs, two males entered the convenience store at about 4:00 a.m. on the day of the offense. The first male, later determined to be an adult named Nyquan Stover, was wearing a mask. Stover immediately headed to the store's cash registers. The second male, later determined to be appellant, did not wear a mask. The second male was armed with a revolver, which he allegedly pointed at the store employees while demanding that they lower themselves to the floor. Stover eventually made his way into the manager's office. He removed from the office cash register trays containing approximately $570.
Detective Walter Stinner of the Union County Police Department was assigned to investigate the robbery. As part of his investigation, the detective obtained the store's surveillance videotape from the night of the robbery. The detective played the videotape for Stover, who was apparently then in jail on an unrelated offense.
Stover identified appellant as a culprit, and directed Detective Stinner to appellant's Facebook page. Upon viewing appellant's Facebook profile, the detective realized that "it was an exact match of the person in the surveillance video without the mask and had the handgun." Appellant's involvement in the robbery was further confirmed by a confidential informant in the community, as well as by the detective's conversations with the Essex County Sheriff Department's gang unit.
Appellant was subsequently interviewed by Detective Stinner at the police headquarters in Union County. In his first interview, appellant initially denied knowledge of the June 10 armed robbery. However, appellant "admitted to the job" during a second interview that he had initiated after waiving his Miranda rights.
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We need not concern ourselves at this time with the admissibility of appellant's inculpatory statement.
Thereafter, on September 14, 2012, the juvenile complaint against appellant was issued in Union County, charging him with offenses, if they had been committed by an adult, that would have amounted to first-degree robbery, N.J.S.A. 2C:15-1(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5; and second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4. Meanwhile, an adult criminal complaint arising out of the same incident was issued against Stover in the Criminal Part in Union County.
Appellant's initial detention hearing was held on September 17, 2012 in the Family Part. During the hearing, appellant's counsel orally requested that venue in his matter be changed to Essex County, where appellant was domiciled, pursuant to Rule 5:19-1. The court denied the request without prejudice, subject to the issue being raised at a second detention hearing to be held later in the week.
At appellant's second detention hearing on September 19, 2012, appellant's counsel again requested that the case be transferred from Union County because appellant "resides in Essex County, and the [c]ourt there is familiar with him." The court responded that the venue change application was premature because the Union County Prosecutor had "indicate[d] an intention and desire to seek waiver" of appellant over to the Criminal Part.
Appellant then filed a written motion seeking a transfer of venue to his county of domicile. The State opposed the motion, arguing that there was good cause to retain the matter in Union County.
Meanwhile, the State filed a separate motion for the involuntary waiver of jurisdiction from the Chancery Division, Family Part, to the Law Division, Criminal Part, pursuant to N.J.S.A. 2A:4A-26. In accordance with the statutory guidelines, discussed infra, the State produced a written statement of reasons in which it analyzed the codified seven waiver factors.
After hearing oral argument, the assigned Family Part judge in Union County, Robert A. Kirsch, denied appellant's venue motion on October 26, 2012. Appellant requested a stay of that decision, which Judge Kirsch also denied. The judge issued a detailed letter opinion on November 1, 2012, explaining his reasons for denying those requests. Appellant applied to this court for immediate relief, but his application was rejected as non-emergent in nature.
Judge Kirsch then considered the State's waiver motion in a separate hearing in December 2012. At the hearing, the State presented the testimony of Detective Stinner. Appellant did not offer any witnesses.
The judge issued a written decision on January 15, 2013, in which he ruled that the State had shown probable cause as to the armed robbery and other charges against appellant. The judge granted the State's motion to waive appellant to adult court, finding that the prosecutor had not abused her discretion in invoking the Criminal Part's jurisdiction.
Appellant then moved for leave to appeal the trial court's respective decisions denying a venue transfer to Essex County and granting waiver to the Criminal Part. We granted leave to review both of those interlocutory rulings.
I.
In its present form, the applicable venue provision, Rule 5:19-1, reads as follows:
(a) Establishment of Venue.
(1) Juvenile delinquency complaints are filed in the county where the incident giving rise to the complaint allegedly occurred. However, when the juvenile charged is domiciled in a county other than the county of the alleged occurrence, venue shall be laid in the county of the juvenile's domicile unless the court finds good cause for venue to be retained in the county where the incident allegedly occurred.
(2) If there are multiple defendants, juvenile or adult, the Family Division Manager or designee in the county where the complaint was filed shall immediately notify the county prosecutor and any attorney of record of an intent to transfer the juvenile matter to the county of domicile. Any objection to the transfer of venue to the
county where the juvenile is domiciled shall be made to the court in the county where the complaint was filed, within five day of such notice.
[(Emphasis added).]
Similarly, in adult criminal matters, venue is proper "in the county in which [the offense] was committed." R. 3:14-1.
Rule 5:19-1 has been amended several times, most recently in 2006. The Supreme Court Family Practice Committee expanded upon the reasons for the most recent amendment in its report for the 2004-2007 rules cycle. The report first described the then-existing practice:
In juvenile delinquency proceedings, R. 5:19-1, prior to amendment, presumed venueThe report then noted concerns that had been raised about this inflexible approach to venue in multi-defendant matters:
in the juvenile's county of domicile unless there were multiple defendants. In those cases, venue was laid in the county where the incident allegedly occurred.
[The Supreme Court Family Practice Committee, Family Practice Committee Final Report 2004-2007 138 (January 12, 2007), available at http://www.judiciary.state.nj.us/reports2007/family.pdf (emphasis added).]
Over the years, concerns were raised because the information most useful to the Family Part judge assigned to hear the juvenile delinquency case was uniquely available in the juvenile's county of domicile.These concerns spawned a revised rule, creating a presumption that venue would be transferred to the charged juvenile's domicile county unless the State showed good cause for retaining venue in the county of the offense:
[Ibid. (emphasis added).]
The Conference of Family Presiding Judges recommended that the rule be amended. The amended rule supports a presumption in favor of venue in the county of the child's domicile; requires Family Part case
management in the county where the complaint was originally filed to notify the State, and any attorney of record, of the existence of multiple defendants; permits the raising of an objection within five days of such notice of multiple defendants in the county where the complaint was originally filed and requires good cause to retain venue there; and for any other reason, a motion to change venue may be brought at any time, which also requires a finding of good cause to change venue. The amendment was adopted by the Supreme Court effective September 1, 2006.
[Ibid. (emphasis added).]
The previous version of Rule 5:19-1 provided that in cases where another juvenile or an adult was charged, there was a presumption that venue was appropriate in the county where the alleged offenses occurred. The pre-2006 version of the Rule stated:
(a) Venue in a juvenile delinquency action shall be laid in the county in which the juvenile is domiciled or, where more than one juvenile is charged with the delinquent act or where one or more adult codefendants are charged with an indictable offense, in the county in which the circumstances occasioning the complaint were alleged to have occurred.
(b) Before a case is transferred to the juvenile's county of domicile, Family Part Intake screening shall ascertain whether there are multiple defendants, either juvenile or adult, and, if so, the case shall be venued in the county in which the circumstances occasioning the complaint were alleged to have occurred. The Prosecutor of the county in which the circumstances occasioning the complaint were alleged to have occurred shall be notified when a case is transferred to a juvenile's county of domicile.
[(Emphasis added).]
At the outset of the present case, the juvenile complaint was properly filed against appellant in Union County, the county where the alleged armed robbery occurred. See R. 5:19-1(a)(1) ("Juvenile delinquency complaints are filed in the county where the incident giving rise to the complaint allegedly occurred."). However, for reasons that are unclear from the record, a manager or designee of the Family Division did not issue the venue notification provided for under the amended rule. Instead, the question of venue came before the court as the result of appellant's motion to transfer the matter to his domicile county.
We agree with appellant that, under the revised procedures in Rule 5:19-1, his attorney should not have been burdened with the affirmative responsibility of moving to change venue. But Judge Kirsch sensibly concluded that the procedural glitch was inconsequential because the pivotal inquiry of "good cause" is the same, regardless of whether the venue issue is triggered by the State's application in response to a Family Division manager's notice or whether it is triggered by a transfer motion filed by defense counsel. In either event, as the judge recognized, the State maintains the burden of showing good cause to overcome the general presumption of venue transfer.
We agree with Judge Kirsch that the State established such good cause in this case, in which the prosecutor had already indicated her desire to have the juvenile matter waived over to the Criminal Division and prosecuted together with the charges against the adult co-defendant, Stover. The factor of a pending waiver request significantly impacts the venue analysis. As Judge Kirsch aptly reasoned in his first written decision:
[w]here there is an adult co-defendant who is already making his way through the judicial process in Union County, a transfer to Essex County of his juvenile co-defendant raises the specter of potentially inconsistent and disparate outcomes if convicted and/or adjudicated, notwithstanding that [appellant] may be subject to different consequences by virtue of his status as a juvenile. The possible inequity may be compounded in light of the State's pending motion to waive [appellant] to the Law Division, a hearing for which has been scheduled by this court on November 14, 2012.Further, Judge Kirsch noted that he had also:
considered the convenience of the numerous potential witnesses who, if the matter was transferred out-of-county, would be required to testify repeatedly and in different courthouses (as well as grand jury, pretrial preparation, etc.). According to the Investigation Report, at least three (3) store employees, a customer, and police personnel are potential witnesses for the State and/or the defense. To require the lay and law enforcement witnesses to the inconvenience and repetition necessitated by a venue transfer would be manifestly unreasonable under these circumstances, exacerbated by the possible duplicative expenditure of judicial resources as well.Finally, Judge Kirsch stated that:
if the court were to transfer the docket to Essex County prior to a waiver hearing, and then if the juvenile was so waived in Essex County, th[e]n the presumptive and applicable venue provisions for adult offenders would likely result in the matter being transferred back to Union County, to the Law Division, Criminal Part. Under [Rule] 3:14-1, venue is proper in Superior Court in the county in which the offense occurred, which in the instant case is obviously Union County. Such circumnavigation, as sought here, would add additional delay to the proceedings, including potentially increasing [appellant's] pretrial detention, and would cause waste of "scant" judicial, prosecutorial and defense resources. Thus, under these circumstances, the State has met its burden to demonstrate good cause to retain venue in Union County.
Appellant contends that the trial court should have transferred venue of the juvenile case to his domicile county, so that a Family Part judge in Essex County, rather than the Family Part judge in the county of the offense, would rule on the State's waiver application. Appellant maintains that such an initial transfer can be beneficial because a Family Part judge and the county prosecutor in the juvenile's domicile county might have greater familiarity with the youth's personal circumstances, his past record, his community circumstances, the rehabilitative programs available to the youth, and other local factors. But those domicile-related facets did not bear significantly on the legal standards for waiver in the present case, given appellant's age and the severity of the charged offense. Instead, as our analysis in Part II, infra, shows, the waiver assessment in this case was predominantly guided by the central question of probable cause and the application of the seven codified waiver factors. See N.J.S.A. 2A:4A-26(a), (f).
Once probable cause was established, the local considerations raised by appellant had no effect on the waiver decision. Consequently, it did not matter here whether the waiver ruling was made by a Family Part judge in the offense county rather than in the domicile county.
We further agree with Judge Kirsch that it would have been a waste of time and resources to transfer venue to Essex County, require the prosecutor and Family Part judge in that county to familiarize themselves with the case, and then ultimately have the case returned to Union County once the waiver to the Criminal Part was approved. There was no need for such "jurisdictional ping-pong." A Superior Court judge in Union County was just as capable of applying the waiver factors in this case involving a sixteen-year-old as a fellow judge in Essex County. In fact, it would not have been improper for Judge Kirsch, had he elected to do so, to have reserved on the venue motion and first ruled on the State's waiver motion. Had waiver been granted, the venue motion would essentially be moot because the juvenile offender would be tried as an adult in the Criminal Part in the county where the alleged offense occurred.
Significantly, both counsel at oral argument before us acknowledged that the court would have had the authority to entertain a motion for reconsideration of its initial venue ruling if, hypothetically, it had denied waiver and concluded that appellant should be tried as a juvenile. We do not construe the amended version of Rule 5:19-1 to foreclose such reconsideration of venue. Assuming that there are no other juvenile co-offenders in the county of offense, the State would have a much heavier burden to establish good cause to prevent transfer of the non-waived juvenile's matter back to his county of domicile.
We therefore affirm the trial court's denial of the transfer of venue, substantially for the insightful reasons expressed in Judge Kirsch's written opinion dated November 1, 2012.
II.
Appellant further contends that the trial court erred in granting the State's request to waive jurisdiction to the Criminal Part. Applying the appropriate standard of review, see State in re V.A., 212 N.J. 1 (2012) (applying an "abuse of discretion" standard of review of waiver rulings), we concur with Judge Kirsch that the prosecutor did not abuse her discretion in seeking waiver in this case, and the pivotal factor of probable cause was clearly established.
The involuntary waiver process is guided by statute. N.J.S.A. 2A:4A-26(a) provides that upon motion by the prosecution, "the court shall, without the consent of the juvenile, waive jurisdiction over a case and refer that case from the Superior Court, Chancery Division, Family Part to the appropriate court and prosecuting authority having jurisdiction" if the "juvenile was 14 years of age or older at the time of the charged delinquent act" and there is "probable cause to believe that the juvenile committed a delinquent act," such as, in this instance, first-degree robbery.
N.J.S.A. 2A:4A-26(e) states that waiver will not be granted in cases where "the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver[.]" However, this particular subsection is inapplicable to appellant, as it "shall not apply with respect to a juvenile 16 years of age or older who is charged with committing" one of several enumerated offenses, including "robbery which would constitute a crime of the first degree." N.J.S.A. 2A:4A-26(a)(2)(a). Thus, the State in this case needed only to submit its written statement of reasons for waiver and satisfy its burden of establishing probable cause that appellant committed the offenses for which he was charged. See R. 5:22-2(c)(3) ("On a finding of probable cause for any of these enumerated offenses, no additional showing is required for waiver to occur. Jurisdiction of the case shall be transferred immediately."). Such probable cause is clearly demonstrated by the present record, particularly given the eyewitness accounts of the armed robbery and appellant's admission of his participation.
The Attorney General has developed guidelines ("the Guidelines") for "the uniform application" of the waiver statute in accordance with N.J.S.A. 2A:4A-26(f). Pursuant to these Guidelines, the "prosecutor making the initial waiver decision shall prepare a written statement of reasons for waiver." The factors to be considered by the prosecutor are: (1) the nature of the offense; (2) deterrence; (3) the effect on co-defendants; (4) the maximum sentence and length of time served; (5) the juvenile's prior record; (6) trial considerations; and (7) the victim's input on the waiver decision. Guidelines, supra, at 5-6. An analysis of probable cause, along with a sufficient written statement of reasons addressing these seven factors, are both required in order for a waiver application to be granted.
Division of Criminal Justice, Juvenile Waiver Guidelines 7 (March 14, 2000) available at http://www.state.nj.us/lps/dcj/agguide/pdfs/AG-Juvenile-Waiver-Guidelines.pdf.
Judge Kirsch's written opinion granting the State's waiver application appropriately focused on the establishment of probable cause. In addition, the judge also noted:
The State's "Statement of Reasons," submitted to the court on October 12, 2012, clearly denotes an individualized explanation for the prosecutor's decision to waive by examining each of the seven (7) factors identified in the Attorney General's Guidelines as they apply to the juvenile. The "Statement of Reasons" provides in-depth
detail on the nature of the offenses, the need to deter the juvenile, effects on co-defendants, the maximum sentence and length of time served, the juvenile's prior records, trial considerations and the victims' input. The court therefore finds that the prosecutor's decision[] to waive the juvenile was premised upon a consideration of all relevant factors and does not amount to a clear error in judgment.
Appellant argues that the prosecutor's Statement of Reasons for seeking waiver reflected an abuse of discretion "since there was an utter absence of individualized assessment of the key specific-deterrence factor, mischaracterization of other factors, and an absence of meaningful weighing and balancing of the factors." He further contends that "[a]n overall qualitative assessment of the Statement of Reasons, contrary to the trial court's decision, weighs against waiver," particularly in light of the fact that "[t]he absence of an individualized assessment of deterrence . . . and the absence of a prior record . . . outweigh trial considerations and victim input." We disagree.
As to the first cited factor, the "nature of the offense," appellant argues that "the prosecutor wrongly indicated . . . 'that there was grave or serious harm inflicted on the victim or the community,' and, without explanation noted '[t]he nature and circumstances of the act,' and '[t]he role of the juvenile therein.'" Appellant contends that because "[t]here was no discharge of the weapon, nor any physical assaults," this armed robbery was "not any more heinous or serious than any other armed robbery" and hence, this factor "is essentially neutral as it pertains to waiver."
While the record suggests that appellant apparently did not fire his weapon, nor were any of the store employees injured, first-degree armed robbery nonetheless is a very serious offense. See N.J.S.A. 2C:15-1(a)-(b) (defining the elements of first-degree armed robbery). As the State noted in its Statement of Reasons, an employee "reported being terrified during the incident," and appellant "created a situation that easily could have escalated, resulting in injury or death." The prosecutor did not abuse her discretion in finding that the first factor weighed in favor of waiver.
Appellant next alleges that the prosecutor's analysis of the second factor, "deterrence," lacks "individualized insight as to how waiver will specifically deter" him. Appellant cites to V.A., supra, in support of his contention. In V.A., the Supreme Court found that the prosecutor's explanation provided in that case as to the deterrence factor "was inadequate to pass under the abuse of discretion standard" because "[t]he deterrence factor was addressed with a curt statement, announced in conclusory fashion, that '[t]he need to deter the juvenile and others from engaging in this sort of activity [aggravated assault, first-degree robbery, and second-degree conspiracy] is abundantly clear.'" 212 N.J. at 29. In V.A., the Court conceded that "the individualized deterrence assessment [need not] be converted into a requirement to demonstrate that the juvenile cannot be rehabilitated." Id. at 30. However, the Court held that the prosecutor was required to consider and explain "his or her conclusions about the respective merits of deterrence through adult versus juvenile proceedings on an individualized basis for each juvenile for whom waiver is sought." Ibid. Additionally, the Court noted that "it [was] inconceivable that the prosecutor, to some extent, would not also weave in the consideration of the juvenile's past history of behavior" in the deterrence analysis. Ibid.
Here, the prosecution did not include details of appellant's past offending behaviors when discussing the deterrence factor. However, the prosecutor did discuss appellant's prior offenses and gang affiliation later within its Statement of Reasons under the fifth factor of the Guidelines. Those matters were also discussed openly at appellant's second detention review hearing before Judge Kirsch, where the State noted that appellant had previously been charged with third- degree theft and also had two active bench warrants for both a third-degree drug offense and disorderly persons simple assault.
In addition, unlike the deterrence statement in V.A., the prosecution in this case did provide more than a "curt statement" addressing deterrence. Here, the prosecution specifically noted under the deterrence factor that (1) the juvenile's offense "created a substantial, unjustifiable risk of harm to others"; (2) the offense was committed "without provocation"; and (3) that the juvenile had "demonstrated that he is willing to subject others to the threat of deadly force" in order to obtain only a modest sum of money. Here again, we discern no abuse of discretion.
Regarding the third factor under the Guidelines, i.e., "effect on co-defendants," appellant argues that there is no explanation provided by the State as to "why waiver or non-waiver would at all effect the prosecution of the adult co-defendant Stover, or why there would be any possibility of 'injustice' outside the mainstream of [appellant] being tried on a separate juvenile track." In its Statement of Reasons, the prosecution noted that Stover, the adult co-defendant, "now faces adult proceedings, and will have his case tried in the Law Division-Criminal Part." Again, we detect no insufficiency of analysis nor any abuse of prosecutorial discretion.
Appellant further argues that, contrary to the prosecution's assertions in its Statement of Reasons, the fourth factor, "maximum sentence and length of time served," weighs against waiver because the prosecution "failed to point out that [appellant] has never been incarcerated as a result of an adjudication, and fails to explain why four years of incarceration in a juvenile facility would not be sufficient punishment." However, in its Statement of Reasons, the prosecution does note that appellant "presents a serious threat to the safety of the community," and that, further, "[g]iven [appellant's] significant involvement in the offense, his age, and the violent nature of the act, there is a need for a significant term of incarceration." Again, given the existing record of facts underlying the incident for which appellant was charged, this analysis is reasonable and does not amount to an abuse of discretion.
Four years is the proscribed sentence for a "[c]rime of the first degree, except murder" under the Code of Juvenile Justice. N.J.S.A. 2A:4A-44(d)(c).
Appellant next contends that "[t]he prosecutor wrongly found the [fifth] factor, of prior-record, weighed in favor of waiver solely based upon the juvenile's purported membership in the Blood's gang[.]" Appellant argues that because three of the four sub-factors to be considered under the Guidelines were deemed "inapplicable" by the prosecutor, this factor actually weighs against waiver. It is true that the prosecutor's Statement of Reasons acknowledges that appellant had never before been adjudicated delinquent, waived and convicted as an adult, or used physical violence towards others in the past such that he "may present a substantial danger to others." However, as the Statement of Reasons also notes, in addition to his alleged involvement with the Bloods gang, appellant was also previously charged with theft by unlawful taking or disposition in the third degree. The prosecutor manifestly did not abuse her discretion in finding that this fifth factor weighed in favor of waiver.
Appellant received a six-month deferred disposition for this charge.
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As to the sixth factor, i.e., "trial considerations," appellant concedes that "the evidence is facially strong against [him]." However, appellant argues that "this factor should be given minimal weight as it has the least to do with the primary purpose of deterrence." Further, appellant contends that his confession and cooperation with the police "should be given some consideration as a reason against waiver." As the State noted in its Statement of Reasons, appellant's likelihood of conviction of the charged offenses is high because the evidence against appellant, including a surveillance video in which appellant is "easily identifiable as one of the perpetrators" and appellant's confession, "is significant." Further, contrary to appellant's contention that this factor "should be given minimal weight," the Guidelines themselves contain no language indicating that any one factor is to be given substantially more or less weight. Once again, appellant has failed to show that the prosecution abused its discretion in this instance.
Finally, appellant concedes that the seventh waiver factor, i.e., "victim input," "moderately weighs in favor of waiver" because the victims have agreed with the prosecutor's decision to seek waiver. This concession further supports the overall propriety of the State's waiver application.
In sum, we are satisfied that the prosecutor did not abuse her discretion in seeking waiver in this case. Moreover, the pivotal factor of probable cause is clearly present.
We therefore affirm the trial court's waiver ruling, substantially for the sound reasons articulated in Judge Kirsch's second written opinion dated January 15, 2013.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION