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Appeals & Post-Conviction Relief



The American system of justice is, I believe, the greatest in the world. It is not perfect, but compared to other justice systems, American Justice reigns supreme in its rules of fair play. Appellate review of any case, including a DWI conviction is an important system “check and balance” to our system of justice.

New Jersey Municipal Courts are often charged by local politics — for this reason, the appellate checks and balances are particularly vital. I overheard one Defendant in a Municipal Court describe the system “a happy little family” — the feeling is that the Municipal Court system is unconscionably stacked against a Defendant — the cops, prosecutor and Judge act to team up against a defendant.

Despite the unique environment in Municipal Courts, most Courts aim for justice and put politics aside. As one absolutely superb Municipal Court Judge (now a Superior Court Judge) commented, when you have the robe on, “you have to rise above it” — the “it” referring to the local political pressures. She is indeed, a great jurist, a neutral and fair arbiter.

There are some courts whose aim is not justice, but some other insidious goal, such as snuggling up to the politics of the Municipality. The result and process in these Courts is often ugly, painful and disturbing to see. The appellate process is an absolute necessity in these abusive courts in order to preserve the integrity of the process.

I am ethically obliged to be zealously vigilant of my client’s constitutional rights and I am obliged to appeal all rulings I believe are deserving of appellate review. I have and will continue to appeal erroneous and abusive rulings from New Jersey Municipal Courts. I have taken and will continue to accept certain appeals without a fee where I believe a Municipal Court has been particularly egregious in depriving a client of important constitutional rights.

As a defense attorney, I have always enjoyed practice in the Municipal Courts. The role of the criminal defense attorney is important — in the Municipal Courts, the importance of defense counsel is heightened because these Courts are very often where the most egregious abuse of defendants’ rights occurs. These Courts, because of volume of cases handled, are where the public forms their view of how our justice system operates. It is therefore, important that the integrity of the system, particularly at this level, is maintained in vigilant check. The role of the defense attorney is like that of a security guard watching over a precious work of art. The most precious art of all is the Constitution of this great nation (and the Constitution and laws of this great State) — I feel duty and morally compelled to guard our National and State treasure(s).

I am frankly disturbed by the wide held perception of the public that Municipal Courts are slanted Courts, existing only to generate money for Municipalities – where the cops, the Judge, and all Court Personnel exist simply to team up against a Defendant to gain a guilty verdict or plea.

As a defense attorney, losing is sometimes part of the game we are in — while winning is nice and always my goal, I am reminded of a childhood adage: “It is not whether you win or lose that is important, but how you play the game [that is].” What I have found universal among clients is that they can all perceive an unfair process.

Most Municipal Courts have an American Flag somewhere either near or in the Courtroom or outside of it – the Flag(s) always inspires me when I am in a Municipal Court representing a client. I am inspired and reminded that (1) cops are simply witnesses for the State who have charged my client – the cops do not run the Court, (2) my client remains innocent of charges until proven guilty beyond a reasonable doubt , (3) the Prosecutor is not simply an appendage of the cops – he/she must represent his client (the State), but also has an independent ethical duty to seek justice not just a conviction, (4) the Judge is a referee — a neutral arbiter whose job is to assure that constitutional rights are protected – he/she too is not a  pawn of the police and municipality, and (5) the court personnel are neutral public servants who cannot assist the prosecutor and police in the preparation of their case against a Defendant.

Despite a perception among the public that Municipal Courts are Police Courts slanted in favor of the State, the great majority of Municipal Court Judges, in the face of a politically charged environment, seek justice. “You cannot serve two masters” – either a Judge is beholden to Justice or to some other political aim such as not ruffling the feathers of the police who might complain to the Township officials who appointed him. Those Judges who serve justice are great Judges of integrity and honor. Those few who serve some other aim are like poison to the pure wells of justice. They are deserving always of respect as Judges, however, their rulings must be exposed and challenged if the integrity of the system is to be preserved. There are other classes of cases where appeals are sought — those where Judges and Defense Counsel have reasonable and scholarly disagreements over areas of the law. For these cases, the appellate process is likewise available and important as a check and balance.


A DWI conviction can be appealed as of right to a higher Court. Appeals from final judgments in the Municipal Court are taken generally by filing a Notice of Appeal with the Clerk of the Municipal Court within 20 days of the entry of judgment. Within 5 days after filing the Notice of Appeal, a copy must be served on the Prosecuting Attorney (the County Prosecutor), and filed with the County Clerk.

Simultaneous with the filing of the Notice of Appeal, Transcripts of the proceedings in the Municipal Court must be ordered. Transcripts are simply a verbatim written record, prepared in booklet form, of everything that was said during the proceedings.

The reviewing Court (the County Superior Court) can, and often does, request that written briefs be filed. A brief is a written outline of the legal arguments. The case will be scheduled for a hearing before one Superior Court Judge. The hearing is referred to as a De Novo Review or De Novo Trial — this means that the Court will review the Transcripts, the evidence produced at trial, and make their own findings of fact and law. The reviewing court may, but is not required, to give deference to the Trial Court’s findings of fact. While there are limited exceptions, generally, no new evidence may be introduced at the De Novo Trial.

Following the hearing, where the Defendant and Counsel are present along with the County Prosecutor, the County Judge makes a decision. The Judge can re-affirm a guilty verdict by making his own independent finding(s) or can find a Defendant Not Guilty. If the Court does (again) find a Defendant guilty, the penalties imposed may not be greater than those penalties imposed by the Municipal Court.