                       RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-4429-13T2
STATE OF NEW JERSEY,
                                     APPROVED FOR PUBLICATION
         Plaintiff-Respondent,
v.                                         May 18, 2015

                                       APPELLATE DIVISION
A.L.1,

          Defendant.
________________________________

         Argued: April 28, 2015 – Decided: May 18, 2015

         Before Judges Reisner, Haas and Currier.

         On appeal from Superior Court of New Jersey,
         Law Division, Somerset County, Indictment
         No. 10-12-0770.

         Remi L. Spencer argued the cause for
         appellant M.B. (Spencer & Associates, LLC,
         attorneys; Ms. Spencer, on the briefs).

         Matthew Murphy, Assistant Prosecutor, argued
         the cause for respondent State of New Jersey
         (Geoffrey   D.   Soriano,  Somerset   County
         Prosecutor, attorney; Mr. Murphy, of counsel
         and on the briefs).

         Jenny M. Hsu, Deputy Attorney General,
         argued the cause for amicus curiae Attorney
         General (John J. Hoffman, Acting Attorney

1
  We use initials for the relevant parties, A.L. and M.B., and
have impounded the record to protect their privacy and safeguard
confidential information, pending further proceedings in this
matter. As indicated in this opinion, any hearing in this case
should have been conducted in camera, and the prosecutor's
office should not have publicly disseminated the parties'
financial information during the court's investigation.
         General, attorney; Ms. Hsu, of counsel and
         on the brief).

         Matthew Astore, Deputy Public Defender,
         argued the cause for amicus curiae Public
         Defender   (Joseph   E.   Krakora,  Public
         Defender, attorney; Mr. Astore, of counsel
         and on the brief).

         The opinion of the court was delivered by

HAAS, J.A.D.


    In   this     case   of   first       impression,    we   determine   the

procedures that should be used to review the indigency status of

a defendant who has been convicted of a crime and who requests

the services of the Office of the Public Defender (OPD) to file

an appeal on her behalf.        During the pendency of defendant's

appeal from her conviction, the State filed a motion with the

trial court, rather than this court, seeking to prohibit the OPD

from continuing to represent defendant in the appeal based upon

its assertion that defendant was not indigent.                  We conclude

that, pursuant to the clear language of                 Rule 2:9-1(a), this

motion should have been filed with the Appellate Division in the

first instance.

                                      I.

    In order to place the factual issues raised in this matter

in their proper context, we begin with a review of the law in

this area.




                                      2                             A-4429-13T2
       The    Sixth    Amendment     to    the    United    States     Constitution

provides that "[i]n all criminal prosecutions, the accused shall

enjoy the right to . . . have the Assistance of Counsel for his

[or her] defen[s]e."             "The Amendment guarantees the right of a

criminal defendant to retain counsel of his [or her] choice, to

the effective assistance of counsel, and if indigent and facing

the    potential      loss   of    'life    or    liberty,'    to    have    counsel

appointed at the government's expense."                  State v. Western World,

Inc., ___ N.J. Super. ___ (App. Div. 2015) (slip op. at 11)

(citations omitted).

       As our Supreme Court recently explained in In re Custodian

of Records, Criminal Division Manager, 214 N.J. 147, 158 (2013),

New Jersey "has a long history of publicly funded representation

of    indigent      defendants."    (citations      omitted).        In   1967,     the

Legislature enacted the Public Defender Act, which created the

OPD.        N.J.S.A. 2A:158A-1 to -25.             "The [OPD] represents all

indigent       defendants        charged    with    an     indictable       offense.

N.J.S.A. 2A:158A-5.          The statute defines an indigent defendant

as    one    'who   does   not    have    the   present    financial      ability   to

secure competent legal representation.'                    N.J.S.A. 2A:158A-2."

In re Custodian of Records, supra, 214 N.J. at 159.

       The OPD provides legal services to indigent defendants both

at trial and on appeal.            Western World, supra, (slip op. at 11).




                                           3                                 A-4429-13T2
At the trial level, judges are required to advise a defendant of

his or her right to representation by the OPD at the time of the

defendant's first appearance before the court.                 R. 3:4-2(b)(3).

"[I]f the defendant asserts indigence," the judge must "assure

that the defendant completes the appropriate application form

for [OPD] services and files it with the [C]riminal [D]ivision

[M]anager's office[.]"       R. 3:4-2(b)(5).

    "To determine whether a defendant qualifies for a public

defender,    a   court   staff    member    collects     information    about     a

defendant's      financial    status.            That   information     is    then

collected on the third page of an intake form, known as the

Uniform Defendant Intake Report (UDIR)."                  In re Custodian of

Records, supra, 214 N.J. at 151.             The third page of the UDIR is

known   as   "the   5A   Form."     Id.     at   160.    On   this    form,   "the

defendant    provides     employment      and     financial   information      and

indicates whether he or she requests representation by" the OPD.

Ibid.   The 5A Form does not require a defendant to provide any

financial information concerning his or her spouse or any other

immediate family members.

    "The defendant must certify the accuracy of the financial

data set forth on the form."          Id. at 151.        Prior to the Court's

May 14, 2013 decision in In re Custodian of Records, supra, the

information the defendant provided in a 5A Form was "prohibited




                                        4                                A-4429-13T2
from use in grand jury proceedings and at trial, even for the

purposes   of   cross-examination[,]"   but   could   "be   used     at

sentencing unless the defendant object[ed]."    Id. at 161.

    The Criminal Division Manager's office is charged with the

responsibility of reviewing a defendant's 5A Form and assessing

the defendant's claim of indigency.      R. 3:8-3.    In making the

indigency determination, the Manager considers the factors set

forth in N.J.S.A. 2A:158A-14.      In pertinent part, this statute

states:

           Eligibility for the services of the Office
           of the Public Defender shall be determined
           on the basis of the need of the defendant.
           Need shall be measured according to:

           a.   The financial ability of the defendant
           to engage and compensate competent private
           counsel;

           b.    The current employment, salary and
           income of the defendant including prospects
           for continued employment if admitted to
           bail;

           c.    The liquid assets of the defendant,
           including all real and personal property and
           bank accounts;

           d.   The ability of the defendant to make
           bail and the source of bail posted;

           e. Where     appropriate the willingness and
           ability of   the defendant's immediate family,
           friends or    employer to assist the defendant
           in meeting   defense costs;

           f.   Where appropriate an assessment of the
           probable and reasonable costs of providing a



                                  5                           A-4429-13T2
          private defense, based upon the status of
          the defendant, the nature and extent of the
          charges and the likely issues;

          g.   Where appropriate, the ability of the
          defendant to demonstrate convincingly that
          he has consulted at least three private
          attorneys, none of whom would accept the
          case for a fee within his ability to pay;
          and

          h. The ability of the defendant to provide
          all    other    necessary   expenses    of
          representation.

          [N.J.S.A. 2A:158A-14.]

If the Manager "determines that a defendant seeking the services

of [the OPD] is indigent, he or she is referred to the [OPD] no

later than the pre-arraignment conference.   R. 3:8-3, 3:9-1(a)."

In re Custodian of Records, supra, 214 N.J. at 160 n.2.

    If the criminal proceeding results in a conviction, either

following a trial or a plea, the defendant completes a new 5A

Form that becomes part of the presentence report that is relied

upon by the judge, the prosecutor, and the public defender at

the sentencing hearing.   Id. at 157.   At sentencing, the judge

must "advise the defendant of the right to appeal and, if the

defendant is indigent, of the right to appeal as an indigent."

R. 3:21-4(h).   The 5A Form provided with the presentence report

then becomes the defendant's application for OPD services on

appeal.   The Criminal Division Manager reviews the 5A Form and

advises the OPD whether the defendant is indigent.    If so, the



                               6                          A-4429-13T2
OPD undertakes the defendant's representation and files a notice

of appeal to the Appellate Division, or provides representation

in the event of an appeal filed by the State.

    "A determination to grant or deny the services of the [OPD]

shall be subject to final review by the Assignment Judge or his

[or her] designated judge."                 N.J.S.A. 2A:158A-15.1.           In cases

where     the    Criminal       Division        Manager    determines      that     the

defendant is not indigent, review by the Assignment Judge will

usually    occur    before      the   OPD    becomes      involved   in    the     case.

However,    if    "a    determination        of   eligibility    cannot      be    made

before the time when the first services are to be rendered, or

if an initial determination is found to be erroneous," the OPD

shall represent the defendant on a provisional basis.                        N.J.S.A.

2A:158A-14.       If the defendant is subsequently determined to be

ineligible, "the defendant shall . . . be obliged to engage his

[or her] own counsel and to reimburse the [OPD] for the cost of

the services rendered to that time."                  Ibid.

    In     addition,      "[t]he      reasonable        value   of   the     services

rendered to a defendant" by the OPD "may in all cases be a lien

on any and all property to which the defendant shall have or

acquire    an    interest."       N.J.S.A.        2A:158A-17a.       The     OPD    must

"effectuate      such    lien    whenever       the    reasonable    value    of    the

services rendered to a defendant appears to exceed $150 . . . ."




                                            7                                 A-4429-13T2
Ibid.    In its amicus brief, the OPD represented that liens are

filed   in   every   case    where    it       provides      legal   services     to   an

indigent client.

      In In re Custodian of Records, the Court dealt with the

situation where the State believed a defendant who had been

found eligible for OPD services prior to his arraignment was not

truly indigent.       Supra, 214 N.J. at 153-54.                 The defendant had

been indicted on a number of offenses, including first-degree

money laundering, N.J.S.A. 2C:21-25; first-degree racketeering,

N.J.S.A. 2C:41-2; and third-degree promoting gambling, N.J.S.A.

2C:37-2.      Id.    at    153.      During       its   investigation       of     these

offenses, the State "had obtained documents . . . that suggested

[the] defendant owned substantial assets."                    Id. at 154.

      The State issued a trial subpoena seeking to obtain a copy

of the 5A Form used to determine defendant's indigency for the

trial proceedings.        Ibid.     "[T]he State proffered that it sought

the     documents     to     investigate           whether       [the]      defendant

fraudulently represented his assets to obtain public defender

representation" and, if so, "to prosecute him for fraud[.]"                            Id.

at 155, 157.        The State represented that it would not use the

information in defendant's 5A Form "as evidence in his current

criminal     matter[.]"       Id.    at    157.         In    addition,   the      State

asserted that it needed the form in order "to apply to the court




                                           8                                    A-4429-13T2
for termination of [the] defendant's court-appointed counsel[.]"

Id. at 163.

    In In re Custodian of Records, the Court held that the

"discovery    sought   by    the     State      [was]    not   essential    to   the

court's review of the State's challenge to defendant's indigency

status."     Ibid.   Nor was a formal motion necessary to initiate a

review.      Instead, the Court observed that the State "or any

other person or entity" could simply present "any evidence that

bears   on   [the]   defendant's      qualification        for    public   defender

representation" to the Assignment Judge.                  Id. at 164 n.4.        The

Assignment     Judge   would        then       conduct   an      investigation    by

reviewing the defendant's 5A Form, and "'obtain[ing] information

from any public record office of the State or of any subdivision

thereof on request and without payment of the fees ordinarily

required by law.'"     Id. at 164 (quoting N.J.S.A. 2A:158A-15.1).

    Once this information was assembled, the Court noted that

the Assignment Judge would "compare [the] defendant's disclosure

on the form with other financial data made available to the

court in connection with the application, and determine whether

[the] defendant is legitimately entitled to publicly financed

legal assistance."          Ibid.     The Court stated that, where the

documents are "uncomplicated, the Assignment Judge may analyze

them in camera without the assistance of counsel or experts."




                                           9                               A-4429-13T2
Ibid.    Following this review, "[i]f the Assignment Judge finds

that [the] defendant did not qualify for appointed counsel, he

[or she] may terminate the appointment."                       Id. at 166 (citations

omitted).

      The     Court      stated         that        challenges      to        an     indigency

determination should be made "at an early court appearance[.]"

Id. at 171.      The reason for requiring a prompt resolution of any

issue    regarding       a     defendant's           indigency      is        clear.          OPD

representation is critical to the fair and efficient functioning

of the criminal court system and, therefore, objections to OPD

representation must be raised at the earliest possible time to

avoid disruption of criminal trials and appeals.

      With regard to the State's claim that it needed the 5A Form

to   determine        whether      to     prosecute          the    defendant          "for     a

fraudulent     financial       disclosure[,]"           the   Court      ruled       that     the

State could not obtain the form through a trial subpoena.                                     Id.

at   165.      Because       the   defendant         was   advised       at    the    time     he

completed the form that it "would not be used in a grand jury

proceeding or at trial[,]" the Court held that the form could

not be used by the State "to prosecute him for false swearing or

fraud[.]"      Id. at 165-66.

      Thus, the Court directed that the 5A Form be modified to

advise      future    defendants        that:         "'At    the    direction         of     the




                                               10                                      A-4429-13T2
Assignment Judge acting on his or her own initiative, or in

response to a valid grand jury subpoena with the approval of the

Assignment Judge, [the 5A Form] may be produced to a grand jury

and a prosecutor.'"            Id. at 167-8.              The Court also ruled that

"if prosecutors seek to preserve the option to subpoena the

financial and employment information that defendants supply on

the" 5A Form, they must first ask the trial court "at an early

court appearance attended by court-appointed counsel" to require

the defendant to "affirm" that: the information on the form is

true; he or she "understands that willfully false statements on

the form . . . may subject him or her to punishment"; and "the

defendant    understands            that    information           about     finances      and

employment      may      be     disclosed          to     a   grand        jury    and    the

prosecution."           Id.    at    168.      The       court    must     also    give   the

defendant the opportunity to revise his or her 5A form after

this inquiry is made.2              Ibid.

     The Court also confirmed that the information disclosed by

a   defendant      on    the    5A     Form        "should    not     be    used    by    the

prosecution to prove the pending case, even if the defendant's

finances     are      relevant        to    the         pending     charges."            Ibid.

Significantly, the Court cautioned that, in order

2
  On May 29, 2013, the Administrative Office of the Courts
promulgated Administrative Directive 03-13 setting forth these
new requirements.



                                              11                                    A-4429-13T2
              [t]o protect against the use of information
              provided by defendants in the pending trial,
              and to guard against improper accusations of
              abuse, a separate team of prosecutors and
              investigators -- who are not involved with
              the pending case -- should be assigned to
              any   new  investigation   relative  to  the
              contents of the [5A] [F]orm."

              [Id. at 168-69.]

    Finally, the Court directed prosecutors seeking disclosure

of the "financial data in" 5A Forms to "proceed by way of a

grand jury subpoena, not a trial subpoena . . . ."                      Id. at 169.

These "grand jury subpoenas should be presented to the Criminal

Division      Manager     and    the    Assignment      Judge      along   with    an

accompanying     affidavit       from   the      prosecutor     that    details   the

basis   for    the   subpoena     --    a    showing    that      the   intake    form

contains false information."            Id. at 170.          The Assignment Judge

would then "determine, within his or her discretion, whether the

State's proofs justify disclosure of the" 5A Form.                       Ibid.     The

Court stated that it "expect[ed] that it will be the rare case

in which the State presents sufficient proof of fraud to warrant

disclosure."      Ibid.

    While the Court's decision applied only to criminal matters

pending at the trial level, we believe that most, but not all,

of the principles established also apply when a judgment of

conviction has been appealed to this court.                   As noted above, the

defendant's     5A   Form   is    included       as   part   of   the   presentence



                                            12                              A-4429-13T2
report and is used to determine the defendant's eligibility for

OPD   representation       on    appeal.          Thus,    the   Criminal       Division

Manager's review of the application, and any analysis required

by the Assignment Judge, will ordinarily occur before the appeal

is filed and, therefore, before we acquire jurisdiction of the

matter.

      However,      once   a    notice   of       appeal   has   been   filed,      "the

supervision and control of the proceedings on appeal . . . shall

be in the [A]ppellate [Division] from the time the appeal is

taken . . . ."        R. 2:9-1(a).           Thus, requests to disqualify the

OPD, filed after an appeal has been docketed, must be presented

to us in the first instance.             Ibid.

      In cases where the State makes an early request for an

indigency review as required by                   In re Custodian of Records,

supra,    we   anticipate       that    we    would   usually     order     a    limited

remand to the Assignment Judge to consider the factual issue of

the defendant's indigency, while retaining jurisdiction to make

the decision as to whether the OPD should be disqualified from

representing the defendant on appeal.                     See State v. Hogue, 175

N.J. 578, 583 (2003) (granting a limited remand pending appeal

"when consideration of a particular issue by the trial court

will enable full resolution of the controversy by the appellate

court     or   is   necessary      to    deal       with    an   essential        matter




                                             13                                 A-4429-13T2
implicating the issues on appeal arising after the notice of

appeal     is   filed")     (citation         and      internal       quotation     marks

omitted).

    However, where the matter has proceeded sufficiently far in

the appellate process that an indigency review and the potential

disqualification       of     a     defendant's          public       defender      would

seriously disrupt the appeal and impermissibly infringe upon the

defendant's right to counsel, a different approach is required.

As we will now discuss, that is the situation presented in the

case at hand.

                                          II.

    On November 27, 2012, a jury convicted defendant A.L. of

second-degree vehicular homicide, N.J.S.A. 2C:11-5a; and third-

degree    assault    by     auto,    N.J.S.A.       2C:12-1c(2).           During      the

lengthy     trial,    defendant         had     been    represented       by      private

counsel.    Sentencing was scheduled for February 14, 2013.

    On January 29, 2013, the OPD advised the Criminal Division

Manager    that   defendant       had    requested       that     a   public   defender

represent her on appeal.            The OPD asked the Manager to determine

whether defendant was indigent.

    In preparation for the sentencing, Criminal Division staff

prepared    a     presentence       report,      which     included       a    copy     of

defendant's 5A Form.              This form was not signed or dated by




                                          14                                     A-4429-13T2
defendant.       A notation at the bottom of the form indicates that

it was printed on January 30, 2013, together with the rest of

the presentence report.            According to the brief it filed with

the Assignment Judge in support of its motion to disqualify

defendant's appellate counsel, the prosecutor's office received

the presentence report and defendant's 5A Form on that same

date.     A copy of this form also appears in the appendix to the

State's motion brief.

      On February 5, 2013, the Criminal Division Manager advised

the OPD that "Defendant is Public Def. accepted" and enclosed a

copy of defendant's 5A Form.              This form, which was signed and

dated by defendant on February 5, 2013, had some additional

information handwritten on it, such as defendant's middle name,

and   a   minor    addition   to    her   "financial    status"   information.

Otherwise, it was identical to the January 30, 2013 form.                    The

February 5, 2013 5A Form was appended to the presentence report

filed     in   the   appeal   concerning       defendant's   conviction      and

sentence.        Therefore, we assume it was also available to the

judge,     the    prosecutor,      and    defendant's    trial    attorney    at

sentencing.

      Because defendant completed her January 30, and February 5,

2013 5A Forms prior to the Supreme Court's decision in In re

Custodian of Records, supra, neither form warned her that the




                                          15                          A-4429-13T2
forms could be turned over to a grand jury or the prosecutor

during an investigation of her eligibility for OPD services.

      On February 14, 2013, the trial judge sentenced defendant

to three years in prison on count one, subject to an eighty-five

percent period of parole ineligibility pursuant to the No Early

Release     Act,    N.J.S.A.         2C:43-7.2,      and   three     years    of    parole

supervision upon her release.                    The judge imposed a concurrent

three-year term on count two.

      On February 20, 2013, the State filed a notice of appeal

challenging        the    sentence       imposed     by    the   trial     judge.         On

February     28,    2013,       the    OPD   filed    an    appeal    on     defendant's

behalf, challenging her conviction and sentence.                            On March 6,

2013, our clerk's office designated defendant as the appellant

and   the    State       as    the     cross-appellant      for     purposes       of    the

briefing schedule.

      The assistant prosecutor, who represented the State during

defendant's trial and at sentencing, learned that the OPD was

representing defendant on appeal on March 6, 2013.                         According to

the   prosecutor's            brief,    "[t]he    State    had     always     known      the

defendant was not indigent[.]"                Nevertheless, the prosecutor did

not immediately take any action to contest the determination

that defendant was indigent and, therefore, eligible for OPD

representation.




                                             16                                    A-4429-13T2
    On May 14, 2013, the Supreme Court issued its decision in

In re Custodian of Records, supra.                The prosecutor advises that

he became aware of this decision shortly after it was rendered,

but he still did not take any action to contest defendant's

indigency.

    Sometime        "[d]uring     the   underlying     litigation,"         and   the

State   has   not     specified    when    this    occurred,       the   prosecutor

obtained a court order requiring a newspaper internet website to

disclose the identity of an individual who had posted comments

"boast[ing] that the defendant's appeal would be handled by the

Public Defender."         The State asserts that M.B. posted these

comments.

    Over the course of the year following the filing of the

parties' appeals, the OPD worked on defendant's case.                       It filed

forty-seven     transcripts,        totaling       more     than     6200     pages.

Pursuant to the last of a series of scheduling orders, the OPD's

brief was due to be filed on January 24, 2014.                     On January 10,

2014, defendant's public defender asked for a short extension of

time to file the brief.         The OPD submitted defendant's appellate

brief   on    March    19,   2014,      together     with    a     motion    seeking

permission to file an overlength brief.               We granted that motion

on April 11, 2014.




                                          17                                A-4429-13T2
       Sometime during the period between the Court's decision in

In re Custodian of Records, supra, and March 4, 2014, the same

prosecutor who had represented the State at trial, issued grand

jury    subpoenas   seeking     defendant   and   her    husband     M.B.'s

financial records.3      Through the use of these subpoenas, the

State obtained M.B.'s savings and checking account records and

his    vehicle   registration    records.    It   also    obtained     life

insurance information for both defendant and M.B.4

       On March 4, 2014, thirteen months after the OPD assumed

defendant's representation for her appeal, the State filed5 a

motion with the Assignment Judge seeking "an Order terminating

the [OPD] from further representation of defendant . . . ."              The

motion also asked that defendant be ordered to appear in court


3
  The subpoenas are not part of the record on appeal and,
therefore, we do not know exactly when the State issued them.
4
  In response to our request for supplemental briefs addressing
certain issues pertinent to this appeal, the State advised us
that it issued the grand jury subpoenas because it was
investigating whether defendant could be prosecuted for theft in
connection with the legal services she was receiving from the
OPD. However, at the trial level, the State told the Assignment
Judge that, because defendant had executed her 5A Form prior to
the Supreme Court's decision in In re Custodian of Records,
supra,   defendant    "is   effectively   immune   from   criminal
prosecution   even   if   her   [5A   Form]  contains   fraudulent
misrepresentations."
5
  The assistant prosecutor who represented the State at the
trial, and who had obtained the grand jury subpoenas, also filed
this motion on the State's behalf.



                                    18                             A-4429-13T2
to confirm that the information supplied on her 5A Form was

"true" and to be advised that "wil[l]fully false statements" on

the form could subject her to punishment.

      In support of its motion, the State submitted a sealed

appendix containing the financial records it had obtained from

the     grand    jury.       Notably,      all         of   the    bank   and     vehicle

registration records were solely in M.B.'s name.                                The State

produced no information indicating that defendant had any income

or assets, other than a life insurance policy that appeared to

have no cash value.              Perhaps because of this, the State also

sought an order requiring that defendant provide the Assignment

Judge    with     four    years    of    tax    returns,        and   other     financial

records relating to any stocks, bonds, or other assets defendant

might own.        The State also asked the Assignment Judge to order

"defendant to produce copies of any legal document(s), executed

between 2010 and 2013, that involved, touched upon or had the

effect    of    altering     family      assets        and/or     property    rights     of

either [defendant] or [M.B.]"

      The      State     acknowledged      that    defendant's        name      did    "not

appear on any of the marital assets nor the real and personal

property    belonging       to    the"   family.            Nevertheless,     the     State

asserted       that    defendant     was   not     indigent        because      M.B.    was

employed,       had    substantial      funds     in    his     savings   and    checking




                                           19                                     A-4429-13T2
accounts, and owned the parties' house and cars.                           Thus, the

State argued that M.B. was required to pay for defendant's legal

representation.

      As noted above, the State filed M.B.'s financial documents

in a sealed appendix.             However, it did not seal its notice of

motion or its motion brief.           In its motion brief, the State made

numerous references to M.B.'s financial information, including

his   savings     account       balances    at   various     times.        The    State

identified M.B.'s employer, how often he was paid, and how his

payroll checks were deposited.              The State also disclosed dozens

of specific payments M.B. had made for his family's educational,

medical,    and   personal        expenses,      including    the   names        of   the

medical offices, educational facilities, and vendors receiving

these payments.       The death benefit amounts of defendant's and

M.B.'s life insurance policies were also revealed.                         Thus, the

State   made    all   of    this    sensitive      information,       which      it   had

obtained through a grand jury subpoena, available to the public.

      As set forth in Rule 2:9-1(a), the trial court did not have

jurisdiction to entertain any motions in this matter because of

the pending appeal.             However, the State did not file a motion

with the Appellate Division seeking a limited remand.

      The   OPD   filed     a    letter    brief    under    seal     on   behalf      of

defendant      opposing     the     State's       request    to     terminate         its




                                           20                                 A-4429-13T2
representation of defendant on appeal.              The prosecutor objected

to the OPD's "appearance . . . in adversarial opposition to the

inquiry," arguing that "the State reasonably expected the Public

Defender to take 'no position' on the merits or otherwise appear

amicus curiae."

    Although the State had revealed M.B.'s personal financial

information    in    its   motion    brief,   and    sought   his   financial

records, the State did not serve M.B. with a copy of its motion

papers, and he was not made a party to the State's motion.

However, the judge asked M.B. to supply an affidavit stating

whether   he   was   willing   to    contribute      to   defendant's      legal

expenses.      In    making   this   request,   the       judge   relied   upon

N.J.S.A. 2A:158A-14e, which states that "[w]here appropriate[,]"

a defendant's need for OPD services shall be measured, in part,

on "the willingness and ability of the defendant's immediate

family, friends or employer to assist the defendant in meeting

defense costs[.]"      (Emphasis added).

    M.B. retained an attorney to represent him in connection

with this request.         On March 25, 2014, the attorney provided

M.B.'s affidavit, in which he stated, "I am unwilling to fund

the legal representation of my wife following her conviction at

trial and sentencing by the [c]ourt."




                                      21                              A-4429-13T2
       On April 8, 2014, the judge conducted oral argument in open

court    on        the       State's   motion      to   prohibit      the    OPD    from

representing defendant in the pending appeal.                       At the beginning

of the argument, defendant's attorney asked that the proceedings

be conducted in camera.                In response, the prosecutor stated, "I

didn't think I was going to say anything that would have raised

any privacy issues[,] but I have no objection."                         However, the

judge responded, "At this juncture, . . . I am unsure that we

really need to ask the public to leave the courtroom.                         I'd like

to hear argument.              If I feel that we are bordering on something

that    is    of    a    confidential        nature,    I   will    reconsider     [the]

application[.]"

       Contrary         to    his   earlier   statement,      the    prosecutor     then

proceeded      to        highlight     the    specific      financial       information

obtained from M.B.'s bank, vehicle, and life insurance records.

In response, defendant's attorney pointed out that the State had

not "submitted anything to the court that would suggest that

[defendant] has a single asset other than what she put on her

[5A Form] in 2013 and that is what your Honor is entitled to

compare."




                                              22                               A-4429-13T2
       On April 10, 2014,6 the judge issued a written decision,

finding that she could consider M.B.'s assets in determining

whether defendant was indigent and, therefore, qualified for OPD

representation.     In so ruling, the judge primarily relied upon

DuBois, Sheehan, Hamilton, and DuBois v. DeLarm, 243 N.J. Super.

175 (App. Div. 1990).     In that case, we applied the common law

"doctrine of necessities" in finding that one spouse could be

held liable for the legal expenses incurred by the other spouse

in a criminal action in which the spouse was acquitted.            Id. at

182.    However, we specifically noted "that a distinction might

exist between cases involving convictions and [those involving]

acquittals because convictions reflect intentional wrongdoing or

culpability for which the spouse [from which payment is sought]

should not be financially responsible."        Id. at 186 n.6.

       Here, defendant was convicted following her trial, and M.B.

had advised the judge that he was not willing to pay her legal

expenses on appeal.       Nevertheless, the judge ruled that she

could   "consider   [M.B.'s]   assets   and   income   in   reviewing   the




6
  On this same date, the Office of the Attorney General advised
the Clerk of the Appellate Division that it had "superseded the
[County] Prosecutor's Office and is now representing the State
on both the appeal and defendant's cross-appeal . . . ."
Although, at our request, the Attorney General participated in
this appeal as an amicus, it did not take part in any of the
proceedings before the trial court.



                                   23                             A-4429-13T2
[d]efendant's     claim   for   indigency."          The   judge   found    it

significant that

           [d]efendant retained private counsel for all
           aspects of the trial at the trial court
           level, and also that [M.B.] is currently
           represented by private counsel. It seems to
           the [c]ourt, subsequent to a review of the
           briefs and exhibits filed by both parties,
           as if the [d]efendant filed for public
           defender representation almost entirely out
           of spite, having posted on a reputable New
           Jersey news website on several occasions
           taunting New Jersey taxpayers.[7]    It also
           appears to the [c]ourt that the [d]efendant
           and her family live an upper middle to upper
           class lifestyle. Certainly, this is not the
           type of "needy" or "indigent" [d]efendant
           that requires the assistance of the [OPD].

     The judge then stated that she would conduct an in camera

plenary hearing8 "to determine the [d]efendant's indigency."               The

judge   ordered   defendant     to   provide   the    following    financial

information in advance of that hearing:

           All Federal and State Tax Records filed by
           [defendant, M.B.,] or filed jointly by both
           parties for the years 2010-2014, [and]

7
  Contrary to the judge's finding, there is no evidence that
defendant ever posted any comments to the website. The State
asserts the comments were posted by M.B.
8
  The judge stated that "[d]ue to the potentially sensitive and
private nature of the evidence that will likely be submitted at
the plenary hearing, this hearing will be conducted in camera,
away from the eyes and ears of the public."       As previously
noted, however, M.B.'s financial information had already been
disclosed in the State's motion brief and these details were
again discussed in open court at oral argument on the State's
motion.



                                     24                             A-4429-13T2
            Financial records relating to stocks, bonds,
            mutual fund accounts, IRA accounts, trust
            accounts, and life insurance held by or on
            behalf of [d]efendant or naming [d]efendant
            as beneficiary of the same.

The judge concluded her opinion by stating:

                 After     an    assessment    of     the
            [d]efendant's full financial information,
            provided the [c]ourt determines that the
            [d]efendant is not in fact indigent, the
            [c]ourt will further issue an order 1)
            terminating    the    [OPD]   from    further
            representation    of  the   [d]efendant,   2)
            directing the [d]efendant to retain private
            counsel, and 3) directing the [d]efendant or
            her husband to reimburse the [OPD] for the
            costs of litigation to date.

     On May 7, 2014, the judge stayed the April 10, 2014 order

at M.B.'s request so he could file a motion for leave to appeal

to this court.        The State did not file any opposition to M.B.'s

motion, and we granted leave to appeal on June 2, 2014.

                                      III.

     Although the State did not oppose M.B.'s motion for leave

to   appeal,     it     now     asserts     that       leave    to     appeal    was

"improvidently    granted."        The     State       argues   that   M.B.     lacks

standing   to   appeal    the    judge's     order      requiring    defendant       to

produce his financial information.               We disagree.

     It    is   well    established       that    "a    party   aggrieved       by    a

judgment may appeal therefrom.             It is the general rule that to

be aggrieved a party must have a personal or pecuniary interest



                                       25                                  A-4429-13T2
or   property      right     adversely      affected       by    the     judgment      in

question."       Howard Sav. Inst. v. Peep, 34 N.J. 494, 499 (1961)

(citations omitted); see also Borough of Seaside Park v. Comm'r

of N.J. Dep't of Educ., 432 N.J. Super. 167, 199 (App. Div.

2013).

     This definition squarely fits M.B.                  In this case, the State

divulged   his     personal    financial         information      in    its     unsealed

brief and again in an open court proceeding.                      The judge ordered

defendant to turn over all of M.B.'s tax returns for a four-year

period.      The   judge     also   stated       that,   if     she    concluded    that

defendant was not indigent, she would issue an order "directing

[M.B.] to reimburse the [OPD] for the costs of litigation to

date."     Under these circumstances, M.B. was clearly a "party

aggrieved by a judgment" and, therefore, he had standing to file

his motion for leave to appeal.

                                         IV.

     On    appeal,    M.B.     argues      the     judge       erred    by     requiring

defendant to provide his personal financial information.                               He

asserts    the     judge's    order      violates        his    right     to     privacy

concerning this information, and also argues that his financial

records    are     protected        from        disclosure       by     his     "spousal

testimonial privilege"; "marital communication privilege"; and

Fifth Amendment privilege against self-incrimination.




                                           26                                   A-4429-13T2
       However, we need not address M.B.'s claims on these points

because we are constrained to vacate the judge's order for a

more     fundamental       reason:       the     trial    court    did     not     have

jurisdiction to consider the State's motion to terminate the

OPD's representation of defendant in her pending appeal.

       As previously noted, Rule 2:9-1(a) clearly provides that

"the supervision and control of the proceedings on appeal . . .

shall be in the appellate court from the time the appeal is

taken . . . ."              Here, the State and defendant filed their

notices       of   appeal     in     February    2013     and,    at     that    time,

"supervision and control of the proceedings" were transferred

from the trial court to the Appellate Division.

       Thus, when the State filed its motion to terminate the

OPD's services over a year later, the trial court lacked the

jurisdiction necessary to consider that motion.                        The facts of

this case highlight the propriety of the result compelled by

Rule 2:9-1(a).           At the time the State filed its motion, the OPD

had    been    representing        defendant    for    thirteen   months    and     was

about to file its lengthy appellate brief on her behalf.                         Under

these circumstances, the judge's order clearly had the capacity

to     interfere    with     the     progress    of    the    pending     appeal     by

diverting the OPD from the task of completing the brief in order

to     address     the    State's     motion,    and     by   possibly     requiring




                                          27                                A-4429-13T2
defendant    to    start       her   appeal          all    over       again       with       a     new

attorney.     Simply stated, a proceeding aimed at disqualifying an

attorney    from       representing       a    party       in     an    appeal,         should       be

commenced in this court not in the trial court.

    As we have indicated, the State was not without a remedy to

address its claim that defendant had sufficient funds to retain

private    counsel.         Because       "control          and    supervision"            of       the

entire matter was before the Appellate Division, the prosecutor

should    have    filed    a     motion       with    this      court       asking       that       the

matter be temporarily remanded to the Assignment Judge to make a

determination of defendant's indigency.                           That is the procedure

clearly required by Rule 2:9-1(a).

    We     have    considered,       but       rejected,          issuing      a    sua       sponte

order remanding the matter to the Assignment Judge to consider

defendant's       indigency       while       defendant's          appeal          is     pending.

While    individuals       who    are     not       truly    indigent         should          not    be

represented by the OPD, challenges to OPD representation must be

presented    at    the     earliest       possible          time       in   order        to    avoid

disrupting the pending proceeding.                     In re Custodian of Records,

supra, 214 N.J. at 171.

    Here,        the    State     simply        waited       too       long    to        challenge

defendant's       indigency       and     to        seek    to     remove          the    OPD        as

defendant's attorney.            The State concedes it has known that the




                                               28                                         A-4429-13T2
OPD was representing defendant on appeal since March 2013.                      It

also asserts that it "had always known the defendant was not

indigent[.]"       Yet, it waited until just before the OPD was about

to file defendant's brief in March 2014 to move to disqualify

that agency from representing defendant.                 By that time, the OPD

had already incurred most, if not all, of the costs necessary to

represent defendant in the appeal.                 With the matter now fully

briefed, and awaiting submission to this court for resolution,

we will not further disrupt the appeal.

    Instead, we vacate the Assignment Judge's April 10, 2014

order requiring defendant to turn over her and M.B.'s financial

records for review.           We remand this matter to the Assignment

Judge to conduct an investigation of defendant's indigency after

defendant's and the State's appeals have been fully resolved. 9

In this fashion, defendant's constitutional right to counsel on

appeal will not be infringed and the OPD's representation of her

in the long-standing appeal will not be disrupted.

    At     the     same     time,     however,     the   public's   interest   in

ensuring    that     only     truly     indigent     individuals    receive    OPD

representation will be served.                 As the OPD confirmed in its

amicus brief and at oral argument, it has invoked its statutory

9
  The Assignment Judge may designate a different judge to handle
the proceedings on remand pursuant to N.J.S.A. 2A:158A-15.1. We
leave that determination to the sound discretion of the judge.



                                          29                            A-4429-13T2
authority under N.J.S.A. 2A:158A-17a to place "a lien on any and

all property to which the defendant shall have or acquire an

interest."       Thus, should the judge determine after the pending

appeal is concluded that defendant was not indigent, she will be

required    to   reimburse       the   OPD   for   the   costs   it   incurred    in

representing her.

       We provide the following further directions for the conduct

of   the    proceedings     on    remand.      First,     the    Supreme   Court's

decision in In re Custodian of Records clearly contemplates that

the judge will conduct a confidential investigation rather than

proceedings in open court as occurred here.                 Supra, 214 N.J. at

164.    Thus, the judge should analyze defendant's 5A Form and any

other financial documents obtained under N.J.S.A. 2A:158A-15.1

in camera.       Ibid.      Should the judge determine that he or she

needs      to    question    defendant        under      oath    concerning      the

information set forth in her 5A Form, the judge should also

conduct that proceeding in camera, with defendant having the

opportunity to have her attorney present during the questioning.

       Second, in no event should the assistant prosecutor who

represented the State in defendant's trial participate in the

remand proceedings.         As the Court made clear, "a separate team

of prosecutors and investigators[,] who [were] not involved with

the pending case[,]" should have been assigned to handle the




                                         30                                A-4429-13T2
State's     investigation         of    defendant         for    theft      or    fraud     in

connection with her request for OPD services and to request that

the OPD no longer be permitted to represent defendant on the

appeal    of    her    conviction       and    sentence.          In   re    Custodian      of

Records, supra, 214 N.J. at 168-69.                            The Court specifically

found    that    this     procedure          was   necessary       "to      guard    against

improper accusations of abuse[.]"                       Id. at 168.      Thus, while we

anticipate that the State will have no further involvement in

this    case    because     this       is    not   an     "adversarial         matter,"     we

reiterate that the trial prosecutor should not participate in

the proceedings on remand.

       Third,    consideration          of    defendant's        indigency        should    be

limited    in    the     first    instance         to    the    financial        information

defendant provided in her 5A Form and whatever information the

judge    may    obtain    concerning          defendant's       economic       status     from

public records as permitted by N.J.S.A. 2A:158A-15.1.                                 Before

requiring       defendant    to    provide         M.B.'s       financial        records    or

reviewing      the    records     previously        provided      by     the     State,    the

judge should give M.B. the opportunity to provide a written

submission outlining the privilege arguments he has raised on

appeal,    including       his     contention           that    the    State      improperly

obtained his financial records through the use of grand jury

subpoenas, so that the judge may consider those issues in the




                                              31                                    A-4429-13T2
investigation.        Other than permitting such a written submission,

we do not anticipate the need for further "assistance of counsel

or experts" for the judge in the investigation, but nevertheless

leave such a determination to the judge's sound discretion.                         In

re Custodian of Records, supra, 214 N.J. at 164, 166.

    Fourth,       because      the     factual    record     is    insufficient     to

enable us to do so, we do not reach the issue of whether one

spouse may be compelled to pay for the other spouse's legal

expenses   on     appeal    in    a    case    where      that    spouse    has   been

convicted of a crime.          However, in order to guide the remand, we

make the following observations.

    Unlike the judge, we do not believe that the Legislature

intended, by enacting N.J.S.A. 2A:158A-14, to incorporate the

"common law doctrine of necessities" into the factors used to

consider whether a defendant who has been convicted of a crime

is indigent.       As we specifically noted in the case primarily

relied upon by the judge, there may be a distinction "between

cases   involving      convictions       and     [those    involving]      acquittals

because    convictions           reflect         intentional       wrongdoing       or

culpability     for    which     the    spouse     should    not    be    financially

responsible."      DuBois, supra, 243 N.J. Super. at 186 n.6.

    In     this    regard,       N.J.S.A.        2A:158A-14e       states    that     a

defendant's "[n]eed         [in part]         shall be measured          according to




                                          32                                 A-4429-13T2
. . . [w]here appropriate[,] the willingness and ability of the

defendant's immediate family, friends or employer to assist the

defendant in meeting defense costs."                     (Emphasis added).              It is

significant         that,    contrary    to      the    "common      law    doctrine         of

necessities," which makes one spouse responsible for paying the

necessary expenses of the other, the Legislature stated that the

immediate family members' willingness and ability to assist the

defendant must be considered.             Ibid.

       Here, M.B. filed an affidavit that made clear he was not

willing to contribute to the expenses defendant would incur in

her appeal from her criminal conviction.                       Thus, should the judge

wish     to    consider      M.B.'s     financial        status      as    part      of     the

investigation,         the    judge     should         first    make      the     threshold

determination whether, based upon the clear language of N.J.S.A.

2A:158A-14e, an "unwilling spouse," perhaps concerned about the

serious nature of an offense committed by the defendant, may

nevertheless be compelled to pay the costs for the spouse's

appeal of his or her conviction for that offense.

       In her written decision, the judge stated that "[i]t seems

to the [c]ourt . . . as if the [d]efendant filed for public

defender      representation       almost     entirely         out   of    spite,     having

posted    on    a    reputable     New    Jersey        news     website        on   several

occasions      taunting      New   Jersey's      taxpayers."           However,        as   we




                                            33                                       A-4429-13T2
observed above, there is nothing in the record to indicate that

defendant    had    anything    to    do    with    the    anonymous        postings.

Therefore, we do not discern any basis for the judge to consider

these postings on the remand.

    The judge also stated that the "most striking" of the facts

indicating    that       defendant    was    not     indigent         "is   that        the

[d]efendant   retained      private    counsel      for    all    aspects        of     the

trial at the trial court level, and also that the [d]efendant's

husband is currently represented by private counsel."                             Again,

however, this fact has little, if any, relevance to the question

of whether defendant is currently indigent.

    The OPD has represented that it frequently provides legal

services to individuals who, like defendant in this case, wish

to appeal a conviction following a trial in which they were

represented   by     private    counsel.           Indeed,      the    fact      that     a

defendant has exhausted his or her financial resources paying

for private representation at trial, is often a reason why the

same defendant will qualify as indigent for purposes of OPD

representation      on   appeal.      Moreover,      M.B.'s      retention         of    an

attorney to represent him after he learned that his financial

information   had    been    made    available      to    the    public     is     not    a

factor to be addressed in determining defendant's indigency.




                                       34                                        A-4429-13T2
     In sum, we vacate the April 10, 2014 order and remand this

matter     to    the      Assignment          Judge     or    her    designee          for     a

determination        of    defendant's          indigency        after         the    pending

criminal    appeal        has    been    fully        resolved      by    the        Appellate

Division.10      At that time, the judge shall conduct an in camera

investigation of the issue, and follow the directives set forth

in this opinion.          If the judge concludes that defendant is not

indigent, the judge shall enter an appropriate order requiring

defendant       to     reimburse        the     OPD     for    the       costs        of     her

representation in the appeal.

     The    April      10,      2014    order      is   vacated,         and    the     matter

remanded for further proceedings consistent with this opinion.

We do not retain jurisdiction.




10
   Should the case thereafter be pending in the Supreme Court,
the judge should seek direction from the Court before
proceeding.



                                              35                                      A-4429-13T2
