                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0522-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EUGENE LAVERGNE, a/k/a
EUGENE MARTIN LAVERGNE,

     Defendant-Appellant.
______________________________

                    Submitted January 14, 2019 – Decided January 29, 2019

                    Before Judges Fasciale and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 12-11-
                    1894.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Louis H. Miron, Designated Counsel, on the
                    brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Monica do
                    Outeiro, Assistant Prosecutor, of counsel and on the
                    brief).

PER CURIAM
        A grand jury returned two separate indictments against defendant

simultaneously.1 In the charges related to the first indictment (No. 12-11-1840-

Z), a jury found defendant guilty of second-degree misapplication of entrusted

property, N.J.S.A. 2C:21-15; and fourth-degree contempt, N.J.S.A. 2C:29-9(a).

We affirmed those convictions. State v. LaVergne, No. A-3210-14 (App Div.

Nov. 7, 2018). As to the second indictment (No. 12-11-1894-Z), and shortly

after that jury trial ended, defendant pled guilty to fourth-degree unauthorized

practice of law, N.J.S.A. 2C:21-22, which is the conviction from which he now

appeals. In this appeal, defendant makes the same arguments he made in the

first appeal.

       On appeal, defendant argues:

                POINT I

                THE TRIAL COURT ERRED BY DENYING
                [DEFENDANT]'S MOTION TO DISMISS THE
                INDICTMENT BECAUSE [A] MONMOUTH
                COUNTY GRAND JURY DID NOT HAVE
                JURISDICTION TO HEAR THE CASE AND
                RETURN     AN   INDICTMENT  AGAINST
                [DEFENDANT].

                    A. [Defendant] Did Not Waive His Right
                    to Raise a Jurisdictional Challenge to the


1
    Defendant is a disbarred attorney. See In re LaVergne, 212 N.J. 427 (2012).


                                                                        A-0522-17T4
                                        2
                  Monmouth County Grand Jury. (Not
                  Raised Below).

                  B. The Trial Court Abused its Discretion in
                  Not Dismissing the Indictment on the
                  Grounds That the Grand Jury Lacked
                  Jurisdiction.

We affirm.

                                      I.

      The pertinent facts of this case begin back in 2011 when defendant

appeared before the Monmouth County Assignment Judge (the first judge) on

an order to show cause (OTSC) filed by defendant in an attorney ethics matter.

Defendant sought the recusal of the first judge based on a claim filed by

defendant in a pending federal lawsuit. The first judge recused himself and

arranged to have the matter heard in Middlesex County.

      Approximately one year later, the Monmouth County Prosecutors Office

(MCPO) prepared to present two criminal cases involving defendant to a grand

jury. Because of the prior conflict, the first judge advised the MCPO to bring

any issues during presentation to the grand jury to a second judge. The first

judge presided over the empanelment of the grand jury to hear a multitude of

matters over several months, not specifically an investigative jury solely for

defendant.   Immediately upon the State's presentation of defendant's case,


                                                                       A-0522-17T4
                                      3
defendant filed an OTSC seeking the recusal of the MCPO and the first judge,

and transfer out of county. The second judge conducted a hearing and denied

defendant's motions.

      Thereafter, defendant filed six motions, including a motion to disqualify

the prosecutor, recuse an assigned Monmouth County judge (the third judge),

and transfer venue to another county. Although the third judge determined there

was "no basis" for him to disqualify himself, on April 5, 2013, prior to

defendant's arraignment, the third judge transferred the case to Middlesex

County.

      In June 2014, defendant filed a motion re-raising the same issues before a

judge in Middlesex County. That judge rejected defendant's reliance on In re

Newman, 189 N.J. 477 (2006), in which a municipal court judge, motivated by

a desire to spare the defendant from having to return to court and appear before

a different judge, was disciplined for conducting an arraignment of a defendant

notwithstanding the existence of an acknowledged conflict of interest. The

judge explained that "while judicial supervision is necessary to ensure the

independence of the grand jury . . . 'no judge presides to monitor its

proceedings,'" quoting State v. Murphy, 213 N.J. Super. 404, 411 (App. Div.

1986). The judge noted that "[t]he supervisional duties of the [first judge]


                                                                        A-0522-17T4
                                       4
include charging the grand jury, administering the oath . . . , [and] discharging

the grand jury at the end of their term."

        The judge in Middlesex County also rejected defendant's interpretation of

Rule 1:12-3,2 that only the Chief Justice could assign the matter to a different

judge after the first judge was conflicted out. The judge found that defendant

did not cite, and the court could not find any legal authority supporting

defendant's claim.     The judge also noted that the grand jury process was

conducted "without any questions of the grand jurors that necessitated any

judicial involvement whatsoever" and that defendant did not suffer any

prejudice from the simple fact that the first judge empaneled the grand juries

that heard defendant's cases. The judge in Middlesex County stated:

                     Defendant mischaracterizes the fact by stating
              that [the first judge] empaneled the grand juries to hear
              . . . defendant's case[s]. This was not an investigatory
              grand jury which is empaneled for the purposes of
              investigating a case. It was a standard . . . grand jury
              empanelment to sit [eighteen] weeks . . . , [one] day a

2
    Rule 1:12-3(a) provides in pertinent part that

              [i]n the event of the disqualification or inability for any
              reason of a judge to hear any pending matter before or
              after trial, another judge of the court in which the matter
              is pending or a judge temporarily assigned to hear the
              matter shall be designated by the Chief Justice or by the
              Assignment Judge of the county where the matter is
              pending . . . .
                                                                            A-0522-17T4
                                          5
            week, and to get everything from drug cases, to
            homicides, to bad checks, to apparently [defendant]'s
            matter.

                   ....

                  It is a simple fact that [the first judge] had no
            direct contact with defendant's case. And his role in
            swearing in a jury and using standard language and
            form promulgated from the conference of Assignment
            Judges had absolutely no prejudicial [e]ffect, nor any
            [e]ffect whatsoever on this defendant. And no rational
            person would conceive that there's even an appearance
            of impropriety.

Defendant filed motions for leave to appeal the order entered by the Middlesex

County judge. Both this court and the New Jersey Supreme Court denied the

motions.

       In January 2017, defendant appeared before another judge in Middlesex

County (the second Middlesex judge) on several pre-trial motions. The second

Middlesex judge denied defendant's motion to dismiss the indictment "based on

[a] lack of jurisdiction by the [c]ourt," and also rejected defendant's contention

that the first judge's appointment of the second judge as a conflict judge violated

Rule 1:12-3. Defendant filed a motion for reconsideration, which the judge

denied.




                                                                           A-0522-17T4
                                        6
                                         II.

      "Generally, a defendant who pleads guilty is prohibited from raising, on

appeal, the contention that the State violated his constitutional rights prior to the

plea." State v. Owens, 381 N.J. Super. 503, 508 (App. Div. 2005) (quoting State

v. Knight, 183 N.J. 449, 470 (2005)). Consequently, "a guilty plea waives all

issues, including constitutional claims, that were or could have been raised in

prior proceedings." Id. at 508-09 (citing Tollett v. Henderson, 411 U.S. 258,

267 (1973)). In Tollett, the United States Supreme Court held,

             a guilty plea represents a break in the chain of events
             which has preceded it in the criminal process. When a
             criminal defendant has solemnly admitted in open court
             that he is in fact guilty of the offense with which he is
             charged, he may not thereafter raise independent claims
             relating to the deprivation of constitutional rights that
             occurred prior to the entry of the guilty plea.

             [411 U.S. at 267.]

      However, there are exceptions to this general rule.           "[T]he guiding

principle" of these exceptions was established in Menna v. New York, 423 U.S.

61, 62 (1975). State v. Truglia, 97 N.J. 513, 523 (1984). In Menna, the United

States Supreme Court concluded that the defendant could raise a double

jeopardy challenge, even though the defendant had pled guilty. 423 U.S. at 62.

The Court held that a guilty plea does not waive a claim when "the charge is one


                                                                             A-0522-17T4
                                         7
which the State may not constitutionally prosecute." Id. at 62 n.2. The Court

noted the difference between "factual guilt," which is established by a guilty

plea, and a defendant's claim that the State simply cannot prosecute because it

is prohibited by the United States Constitution. Ibid.

      Accordingly, double jeopardy and other "constitutional violation[s] akin

thereto" are not waived by the entry of a guilty plea. State v. Garoniak, 164 N.J.

Super. 344, 348 (App. Div. 1978).       "Since the application of this type of

constitutional protection would be to prevent a trial from taking place at all, a

defendant may raise the applicable constitutional issue and obtain relief by a

reason thereof, notwithstanding that his conviction was entered pursuant to a

counseled plea of guilty." Ibid. However, relevant here, we have previously

concluded that "challenge[s] [to] the indictment" and "the unconstitutionality of

grand jury selection" are not "constitutional violation[s] akin" to double

jeopardy, and thus, are waived by a guilty plea. Id. at 348-49; Owens, 381 N.J.

Super. at 509.

      There is no reason to conclude that defendant's claim was not waived by

his entry of a guilty plea.        Defendant's jurisdictional claim is not a

"constitutional protection" like the Double Jeopardy Clause of the Fif th

Amendment that would prevent a trial from taking place at all. Garoniak, 164


                                                                          A-0522-17T4
                                        8
N.J. Super. at 348. Defendant's contention is not that the State was prohibited

from indicting him on these charges, but that he could not be indicted by a grand

jury that was empaneled by the first judge. Yet, defendant pled guilty on this

indictment.   If defendant wanted to subsequently challenge the grand jury

process, he should have entered a conditional guilty plea. 3 He did not do so.

      Moreover, defendant's claim does not rise to a constitutional level.

Defendant's argument is based on the first judge's empanelment of the grand jury

and his assignment of a conflict judge. Defendant argues that because the first

judge previously recused himself, he could not empanel the grand jury or assign

the matter to a different judge. However, we have recognized that "[m]ost

matters relating to judicial disqualification [do] not rise to a constitutional

level." State v. Presley, 436 N.J. Super. 440, 458 (App. Div. 2014) (second

alteration in original) (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820-

21 (1986)). "Rather, issues involving a judge's qualifications to hear a case are

ordinarily resolved 'by common law, statute, or the professional standards of the

bench and bar.'" Ibid. (quoting Bracy v. Gramley, 520 U.S. 899, 904-05



3
  Pursuant to Rule 3:9-3(f), "a defendant may enter a conditional plea of guilty
reserving on the record the right to appeal from the adverse determination of any
specified pretrial motion. If the defendant prevails on appeal, the defendant
shall be afforded the opportunity to withdraw his . . . plea."
                                                                          A-0522-17T4
                                        9
(1997)).   Accordingly, defendant's argument regarding [the first judge's]

disqualification does not rise to "a constitutional level." Ibid.

      The "crux" of defendant's jurisdictional challenge is that the first judge

"never should have had any involvement with a case brought against" defendant.

Defendant contends that because the first judge recused himself, "[ Rule] 1:12-3

require[d] the Chief Justice, not the recused assignment judge, to designate a

judge to hear the matter, including communications with the prosecutor,

[e]mpaneling the grand jury, voir dire of grand jurors, returning indictments[,]

and corresponding with defense counsel."

      Because this issue was addressed and decided in LaVergne, slip op. at 22-

32, we affirm substantially for the reasons set forth therein. The panel addressed

defendant's argument that Rule 1:12-3 required the first judge to relinquish

jurisdiction to the Chief Justice – the same contention brought by defendant on

this appeal. We stated:

                  Here, defendant offers no support for his
            proposition that Rule 1:12-3 prohibited [the first judge]
            from empaneling a grand jury or assigning other judges
            to handle defendant's case, including the grand jury
            presentation. By its plain language, Rule 1:12-3(a)
            requires the assignment judge or the Chief Justice to
            designate another judge "to hear any pending matter
            before or after trial" if the judge hearing the matter is
            disqualified. Nor is there any support for defendant's
            proposition that where the case is ultimately transferred

                                                                          A-0522-17T4
                                       10
     to a different county after indictment, but prior to
     arraignment, a conflict by [the first judge] creates a
     jurisdictional issue mandating the dismissal of the
     indictment in the absence of any finding of prejudice,
     perceived or actual, in the grand jury presentation. On
     the contrary, we are satisfied that [the first judge's]
     ministerial and insubstantial acts "did not 'substantially
     undermine' the objectivity of the charging process or
     case harm to the defendant." [State v. Murphy, 110 N.J.
     20, 35 (1988)].

     [LaVergne, slip op. at 31.]

Affirmed.




                                                                  A-0522-17T4
                                11
