A New Jersey Supreme Court holding will make it easier for the state to prosecute those who fib about their finances to qualify for a public defender.
The justices on Tuesday ordered that a provision in the application that promises confidentiality be replaced with one that warns the information may be disclosed to a prosecutor and grand jury upon a showing of possible fraud.
The ruling, In re Subpoena Duces Tecum on Custodian of Records, A-25-11, is prospective only, because the applicant in the case at hand supplied his financial information with the understanding it would remain confidential.
Alfonso "Tic" Cataldo was indicted in Morris County, along with 34 other defendants, on charges of money laundering, promotion of gambling, theft by extortion and racketeering, and failure to file tax returns and pay income taxes.
He filled out the Uniform Defendant Intake Report (UDIR) to apply for public-defender services. It reassures defendants that "information … may not be used in grand jury proceedings or at trial." A court official approved the request.
The attorney general then subpoenaed records about Cataldo’s assets or indebtedness, saying it was relevant to his eligibility for public defender services and not to the underlying criminal case.
The attorney general contended that Cataldo and his wife, Lorraine, owned two homes in Florham Park and one in Readington, with a total equity of $1.4 million. And when Cataldo leased a 2010 Honda Accord, he claimed to work as a contractor for Cataldo Construction at a monthly income of $10,500.
Superior Court Judge Thomas Manahan quashed the subpoena, finding the attorney-client privilege covers even initial conversations with an attorney the client intends to hire. The Appellate Division agreed and affirmed.
The Supreme Court affirmed the Appellate Division’s ruling, as modified, in a 6-0 per curiam decision, with Chief Justice Stuart Rabner not participating.
The court did not reach the privilege issue, because it found that Cataldo provided his financial information after being assured it would be used only to determine indigency.
Still, finding the judiciary is obliged to ensure that funds set aside for public-defender services are not misused, the court referred Cataldo’s case to the Morris-Sussex assignment judge to determine, without disclosure of the application information, whether Cataldo qualifies for appointed counsel.
Going forward, the court ordered that Directive 1-06, which governs the UDIR, be modified to permit disclosure of financial information to a grand jury subpoena investigating allegations of false swearing or fraud.
The court said disclosure of UDIR data will be allowed only in limited circumstances and subject to guidelines:
• The defendant’s financial disclosures may not be used against him in the pending criminal case, and prosecutors and investigators looking into the alleged misappropriation of legal services must not be involved in the underlying case.
• The UDIR form must warn the defendant that his statements about financial status may be disclosed to a grand jury or prosecutor, under an assignment judge’s initiative, or in response to a grand jury subpoena.
• The defendant, at an early court appearance, must affirm he understands the possibility of disclosure and be given a chance to amend his financial statements.
Supervising Deputy Attorney General Mark Eliades represented the state.
A spokesman for the Attorney General’s Office, Lee Moore, says the decision "recognizes that the current process for determining indigency hinders the State in prosecuting individuals who submit false financial information to obtain Public Defender services."
First Assistant Deputy Public Defender John McMahon, who represented Cataldo, did not return a call.