                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-6032-12T2

STATE OF NEW JERSEY,

     Plaintiff-Respondent,                 APPROVED FOR PUBLICATION

                                              February 18, 2015
v.
                                             APPELLATE DIVISION
HOWARD MYEROWITZ,

     Defendant-Appellant.

___________________________________

         Argued January 7, 2015 – Decided February 18, 2015

         Before Judges Fuentes, Ashrafi and O'Connor.

         On appeal from Superior Court of New Jersey,
         Law   Division,   Hudson  County,  Municipal
         Appeal No. 21-12.

         Howard Myerowitz,    appellant,    argued    the
         cause pro se.

         Kevin   J.  Murray,   Assistant   Prosecutor,
         argued the cause for respondent (Gaetano T.
         Gregory, Acting Hudson County Prosecutor,
         attorney; Mr. Murray, on the brief).

         The opinion of the court was delivered by

FUENTES, P.J.A.D.

     Defendant Howard Myerowitz appeals from the judgment of the

Law Division finding him guilty of the petty disorderly persons

offense of harassment as defined in N.J.S.A. 2C:33-4(a).          The

Law Division reached this decision after conducting a de novo
review of the trial record developed in the Secaucus municipal

court1 pursuant to Rule 3:23-8.             Defendant raises a number of

substantive      arguments     attacking    the    legal    validity    of    his

conviction.      However, as a threshold issue, defendant argues the

Law Division erred in failing to declare his conviction in the

Secaucus    municipal        court   void   ab     initio    because    he    was

prosecuted by a private attorney who did not comply with the

requirements the Supreme Court established in State v. Storm,

141 N.J. 245 (1995) and subsequently supplemented and codified

in Rule 7:8-7(b).

       We agree with defendant that his conviction for harassment

is procedurally defective and cannot stand as matter of law.

The record of the municipal court proceedings presented for de

novo    review    to   the    Law    Division     shows    that   the   Secaucus

Municipal Court permitted the private attorney retained by the

complaining witness to assume the authority ordinarily reserved

to duly appointed municipal prosecutors without adhering to the

procedural requirements of Rule 7:8-7(b).


1
  Rule 7:8-2(a) provides that "except as otherwise provided by
law," the prosecution of an offense in municipal court "shall
take place in the jurisdiction in which the offense was
committed."    Although the offense under review here was
allegedly committed in Jersey City, for reasons that are not
made entirely clear in the record before us, venue was
transferred to Secaucus. Defendant is not contesting this issue
on appeal.



                                        2                               A-6032-12T2
      Specifically,           the    private           attorney        retained        by    the

complaining       witness      prosecuted             the     case     against      defendant

without submitting the certification required by Rule 7:8-7(b).

The municipal court erred in permitting this private attorney to

exercise prosecutorial authority without adhering strictly to

the   rules      governing      such    practices.            Failure        to    follow    the

procedures established in Storm violated defendant's due process

rights and did not "preserve the integrity of municipal courts,

protect the rights of defendants, and [ ] make the system work."

Storm, supra, 141 N.J. at 254-55.

                                                 I

      Defendant is an attorney admitted to practice law in this

State.     In     that    capacity,         he       represents       the    Liberty     Humane

Society,    an    organization         that          purports    to    be     "a    non-profit

animal   shelter        dedicated      to    promoting          animal      welfare    in    our

communities        by     providing          progressive             animal        sheltering,

behavioral therapy and adoption services designed to give every

animal a chance at a lifelong, loving home."2                               Defendant claims

Donna    Lerner    filed      this   harassment             complaint       against    him    in

retaliation       for     a    civil        action          alleging        "harassment      and

defamation" brought by Liberty Humane Society against Lerner and


2
  Liberty Humane Soc'y, http://libertyhumane.org/board_staff.php
(last visited January 19, 2015).



                                                 3                                     A-6032-12T2
other    members     of     what    defendant      characterizes       as    a    "fringe

animal rights group."

       On     January      31,     2011,    defendant       attended    a    board       of

directors meeting of the Liberty Humane Society to update the

board members on the status of                   the civil litigation against

Lerner.        The incident that gave rise to Lerner's harassment

complaint against defendant occurred at this meeting.

       The meeting, which was held in a room inside the City Hall

of the City of Jersey City, was initially open to the public.3

Lerner, who was also in attendance, sought to record the board's

discussions      during      the     public      session.         However,   when       the

discussions      reached         defendant's     litigation       update,    the     board

members asked Lerner and other members of the public to leave

the room.       According to defendant, the board members explained

that    the    meeting     was     being    closed   to     the    public    to    permit

defendant,      as   the    attorney       representing      the    organization,        to

privately discuss confidential information concerning the status

of the litigation.

       After the meeting room was cleared of public attendees,

defendant took certain personal items attendees had left inside


3
  Although not entirely clear based on the record before us, it
appears Liberty Humane Society had at the time some kind of
affiliation with the City of Jersey City with respect to the
care of wayward animals.



                                             4                                    A-6032-12T2
the meeting room and placed them outside on the hallway floor.

According to Lerner, defendant told her to get away from the

meeting room door.        She also claimed defendant told her that he

was going to have her escorted out of the building.                              Lerner

described defendant's demeanor as confrontational and physically

menacing.     She alleged defendant "got several inches away" from

her face, pointed his finger at her, yelled at her, and followed

her   when   she    stepped   back.        Although      Lerner   testified        that

defendant's        alleged    misbehavior           continued         unabated      for

approximately fifteen to twenty minutes, she also indicated that

she   continuously     walked      in   and   out   of   the   meeting     room,     in

apparent defiance of the board's decision to close the meeting

to the public.

      The Law Division judge found that at some point during this

confrontation      with   Lerner,       defendant    asked     both    security     and

Jersey City Police Officers for assistance to physically remove

Lerner from the scene.        The trial court found, however, that the

police officers refused to accede to defendant's request because

Lerner was lawfully in a public building and was not acting

inappropriately.          Lerner    was    later    permitted     to     attend     the

public session of the board meeting without further incident.

Her charge of harassment against defendant is thus exclusively




                                          5                                 A-6032-12T2
based on her interactions with defendant immediately after the

board's decision to close the meeting to the public.

                                       II

      Although the Secaucus Municipal Court disposed of several

other cases involving Donna Lerner and other individuals who had

some connection with the Liberty Humane Society, this appeal

concerns      only   what   occurred   during    the    prosecution    of    the

harassment charges filed by Lerner against defendant.4                 However,

the   Storm    issue   raised   by   defendant   in    this   appeal   was   not

directly addressed by the municipal court on June 5, 2012, the

day defendant's case was scheduled for trial.

      The following colloquy occurred before the start of the

trial against defendant:

              DEFENDANT:   I'm sorry, Your Honor.                Is
              [Lerner's private attorney] prosecuting            on
              this case?

              MUNICIPAL COURT JUDGE: My understanding is
              she is. I received an application to do so.

              DEFENDANT: I haven't received an application
              for her to prosecute this matter.

              LERNER'S ATTORNEY: Judge, that's not true.
              We went through this probably four sessions
              ago where he objected to my prosecuting at

4
  Defendant's Notice of Appeal and Case Information Statement
identify only the Law Division's May 28, 2013 judgment of
conviction finding defendant guilty of committing the petty
disorderly persons offense of harassment against Donna Lerner,
as defined in N.J.S.A. 2C:33-4(a).



                                       6                               A-6032-12T2
            that time, and Your Honor reviewed the Storm
            application. Your Honor addressed the issue.

            DEFENDANT:     It's not a party - -

            LERNER'S ATTORNEY: And one of the - - the
            big issue - -

            MUNICIPAL COURT JUDGE: Mr. Myerowitz, you
            filed a motion to disqualify [Lerner's
            attorney]. And I did go through all of the
            reasons on the record, and I - - and I went
            through all of it. So - -

            DEFENDANT: Yes, but she only applied to
            prosecute Ms. [Jeffrey]. She never applied
            to prosecute me.

            MUNICIPAL COURT JUDGE: No, she did.      And
            your brief addressed both.    Your brief was
            addressing in caption to Re: State v. Diana
            Jeffreys   [sic],   Re:   State   v.  Howard
            Myerowitz.     So it addressed it and I
            addressed all the issues.

Ultimately,    the      municipal    court        judge   found    that   she     had

addressed and rejected defendant's Storm related objections:

            I believe that I have on more than one
            occasion indicated that [Lerner's private
            attorney] can appear in this matter.      You
            have filed a brief in opposition to her
            appearing. I said that she can appear. And
            so . . . this has been on the calendar
            forever with today as the day to go forward.

    The municipal court judge's reference to a prior ruling

deciding    this   issue    relates     to    a    hearing   that    occurred     on

September 6, 2011, the first day of trial of the harassment

charges    filed   by    Lerner     against   defendant's         wife,   Diana    H.

Jeffrey, whom defendant represented as defense counsel.                    On that



                                        7                                  A-6032-12T2
day,     Lerner's        private       attorney     entered   her     appearance    and

announced to the municipal court that she had "filed a Storm

motion       on   behalf          of   Donna    Lerner."       After     considerable

discussion concerning defendant's ability to represent himself

and    his    wife       in   these        matters5,   Lerner's     private   attorney

addressed the municipal court as follows:

              Judge, I don't represent Ms. Lerner in a
              complaint by Ms. Jeffrey.    I did file two
              Storm certifications. I seek to represent -
              - to prosecute the matter against Diana
              Jeffrey in State v. Diana Jeffrey where
              Donna Lerner is the complainant. There - -

              MUNICIPAL COURT JUDGE: Well . .                     .   let's
              stick with what I have. Let's - -

              .      .        .        .

              Let's go back a minute.    There is no
              complaint by Mr. Myerowitz against Ms.
              Lerner. That's my point.

              DEFENDANT: Correct.

              LERNER'S ATTORNEY:             That's correct.

              .      .        .        .

              MUNICIPAL COURT JUDGE: So then the next
              issue becomes - - if I'm correct, your
              remaining argument is that Mr. Myerowitz
              should not be appearing on behalf of Ms.
              Jeffrey as defense counsel.

5
  The record reflects defendant's wife (who is also an attorney)
waived any conflict of interest arising as a result of defendant
representing her in the case, as required by Rule 3:8-2.    This
issue ultimately became moot, however, because Jeffrey was
acquitted of the charges filed against her by Lerner.



                                                8                             A-6032-12T2
            .       .        .       .

            LERNER'S ATTORNEY: That's correct.

            MUNICIPAL COURT JUDGE: In the absence of - -
            of him prosecuting one of these matters, I'm
            having a difficult time then seeing where
            the conflict would be.   The State v. Storm
            conflict comes up if he prosecutes one of
            these matters.

      Lerner's attorney agreed with the municipal court judge's

analysis of the          Storm question as it related to defendant's

ability to represent Jeffrey in the harassment case Lerner filed

against her.        The question related to whether Lerner's private

attorney could assume the role of prosecutor resurfaced when

defendant,      acting       as    Jeffrey's      defense    counsel,      objected       to

Lerner's private attorney's Storm application.                         Defendant based

his   objection         on   two     grounds:      (1)    the    absence      of     cross-

complaints      between           Jeffrey   and     Lerner;      and    (2)        Lerner's

counsel's failure to submit a certification in conformance with

the requirements of Rule 7:8-7(b).                       The municipal court judge

rejected defendant's arguments and the case against Jeffrey went

forward with Lerner's private attorney acting as prosecutor.

      The municipal court judge found Lerner's attorney did not

use   the    form       certification       approved        by   the    Administrative

Director of the Courts (Director) as required by Rule 7:8-7(b).

The   municipal         court       judge   nevertheless         permitted         Lerner's




                                            9                                      A-6032-12T2
attorney    to   prosecute         Jeffrey,     finding    the    privately   drafted

certification     submitted         by    the   attorney    was    in   "substantial

compliance"      with    the       form   approved    by    the    Director.        The

municipal    court      judge      provided     the   following     explanation      in

support of her ruling:

            [Lerner's private attorney] submitted a
            certification to the Court dated February 7,
            2011. It is not on the form [prescribed] by
            the [Administrative Office of the Courts],
            but it is in substantial compliance with it.
            It provides in part that she requests to
            prosecute this matter on behalf of her
            client, that she's an attorney at law, that
            she is supplying this certification in -- to
            the Jersey City Municipal Court in --
            pursuant to Rule 7:8-7(b) and State v. Storm
            and that she will fill out any form that was
            provided to her by the Municipal Court.
            She's asking that she be appointed as an
            impartial   private  Prosecutor   for  Donna
            Lerner, the complaining witnesses in -- in
            this matter.

            .    .      .      .

            I don't find that the form not being
            provided to her by Jersey City is fatal to
            her prosecution in this matter.

            With whether or not these matters are cross-
            complaints, I said earlier in this day and
            with regard to another matter I find that
            they are cross-complaints.      I understand
            that there is no identity of dates, but
            there are identity of parties and there are
            [identity] of issues in this matter.

            The parties are in a dispute apparently over
            . . . I [may be] using the wrong title for
            it . . . Hudson County Animal Shelter.    It
            may be the Jersey City Animal Shelter. I'm



                                           10                                 A-6032-12T2
           not familiar enough with the facts having
           not heard them yet but only reviewed the
           motions in this matter.    The dispute [may
           be] . . . over control over this animal
           shelter. The parties got into disputes over
           how they should discuss it, whether or not
           one party was harassing the other, using
           harassing language over it.    All of these
           parties are people who had something [to] do
           with this shelter.

           While there may not be an identity of dates
           meaning you allege I harassed you on Date A
           while I allege you harassed me on Date B,
           the allegations are similar enough and the
           parties are similar enough so that I can
           consider these to be cross-complaints.

           If I say to you something on Monday and you
           answer me on Tuesday because we're using
           electronic communication meaning that we're
           using e-mail or Face Book [sic] or any of
           the other means that people communicate with
           today, text, and so I don't get it in an
           instant time but I get it the next day, that
           is contemporaneously enough that I would
           consider these to be cross-complaints.

           [(Emphasis added).]

       The certification Lerner's private attorney submitted to

the    Jersey   City    Municipal     Court     in    support    of   her    Storm

application,      which      the     Secaucus        Municipal    Court      found

"substantially complied" with the requirements of Rule 7:8-7(b),

is replicated in its entirety and attached here as Exhibit A to

this   opinion.        In   the    interest   of     clarity,    we   recite    the

following pertinent paragraphs of the certification:

           2.   This Certification is being supplied to
           the Jersey City Municipal Court pursuant to



                                        11                                A-6032-12T2
          the provisions of R. 7:8-7(b) and State v.
          Storm, 141 N.J. 245 (1995) to provide the
          Court and the Municipal Prosecutor with all
          facts   that   may  foreseeably  affect  the
          fairness of the proceedings to enable the
          court   to   determine  whether  I   may  be
          appointed as an impartial private prosecutor
          for Donna Lerner, the complaining witnesses
          in the above matter.

          3.   The     complaining         witnesses       are
          individuals.

          4.   There is no actual conflict of interest
          arising from my representation of and fee
          arrangement with, the complaining witnesses.

          5.   The municipal prosecutor can elect not
          to conduct the prosecution.

          6.   Neither I nor any member of my firm
          will represent the complaining witness in
          any civil litigation concerning the same or
          similar facts as are contained in the
          complaint.

          7.   There are no other facts that could
          reasonably affect the impartiality of the
          private prosecutor and the fairness of the
          proceedings    or   otherwise  create   an
          appearance of impropriety.

          I   hereby   certify  that   the   foregoing
          statements made by me are true. I am aware
          that if any of the foregoing statements made
          by me are willfully false, I am subject to
          punishment.

    As   Exhibit   A   attached   hereto   shows,   this   certification

dated February 7, 2011, uses a caption identifying only the case

of State v. Diana H. Jeffrey, Complaint No. S2010 009052 0906,

leaving any reasonable reader to conclude this private attorney




                                   12                            A-6032-12T2
was seeking leave of the court to assume the role of prosecutor

on behalf of the complaining witness only in that case.                                The

letter the attorney wrote to the then Presiding Judge of the

Jersey     City    Municipal       Court     dated         February        14,      2011,

transmitting      this     personally      drafted     version        of     a      Storm

certification,      also      corroborates          this     inference.                The

"reference" section of the letter again identifies the subject

matter as the case of "State v. Diana Jeffries [sic], Complaint

No. S2010 009052 0906."            Finally, in an effort to dispel any

ambiguity or confusion, the attorney wrote: "If the Court agrees

to permit me to serve as a private prosecutor in this matter,

please have your clerk file the enclosed Notice of Appearance

and send me a copy marked filed in the enclosed stamped self-

addressed envelope."6       No other case is mentioned in the letter.

     On appeal to the Law Division, defendant again argued that

Lerner's    private      attorney    was      not     legally       authorized          to

prosecute the harassment complaint filed against him by Lerner

because the attorney did not submit a Storm certification in his

case.      The    State,    this    time     represented       by     an    Assistant

Prosecutor from the Hudson County Prosecutor's Office, argued




6
  The appellate record does not contain a copy of the Notice of
Appearance "marked filed."



                                        13                                       A-6032-12T2
that    the      municipal   court   judge    considered        and    rejected

defendant's arguments under Storm in the case against Jeffrey.

       The Law Division Judge accepted the State's argument in

this respect.        The trial judge found that the municipal court

judge "made it clear that she was 'lumping' all the matters

together."       (Emphasis added).    After naming the various cases in

which   the    charges    were   eventually   withdrawn    by    all    of   the

complaining witnesses, the Law Division Judge found:

              It was clear to Mr. Myerowitz that all the
              matters were addressed jointly, but would
              have its own trial, as he addressed in the
              caption of his brief to Re: State v. Diana
              Jeffrey, Re: State v. Howard Myerowitz.
              This   makes   it   clear  that   there  are
              overlapping   issues   and  essentially,  he
              addressed them jointly.

                                     III

       Against     this   record,    defendant   raises     the       following

arguments on appeal:

              POINT I

              THE CONVICTION MUST BE REVERSED BECAUSE THE
              TRIAL JUDGE IMPROPERLY ALLOWED A PRIVATE
              ATTORNEY TO PROSECUTE THE DEFENDANT, HOWARD
              Z. MYEROWITZ, ESQ.

                   A.   The Private Attorney Did Not
                   File An Application To Prosecute
                   The     Defendant,   Howard    Z.
                   Myerowitz, Esq.

                   B.   Even If The Private Attorney
                   Had   Filed   An  Application   To
                   Prosecute The Defendant, Howard Z.



                                      14                               A-6032-12T2
    Myerowitz, Esq., It Would Have
    Been Plain Error For The Trial
    Judge To Grant It Because The
    Rules   Only   Allow   A   Private
    Prosecutor To Be Appointed When
    There Are Cross Complaints And No
    Civil Litigation [Existed] Between
    The Parties.

POINT II

THE CONVICTION MUST BE REVERSED BECAUSE THE
TRIAL JUDGE IMPROPERLY ALLOWED THE PRIVATE
PROSECUTOR TO CALL A WITNESS WHO THE
DEFENDANT HAD NOT BEEN NOTIFIED OF.

POINT III

THE CONVICTION MUST BE REVERSED BECAUSE THE
TRIAL JUDGE IMPROPERLY FOUND THE DEFENDANT
GUILTY OF COMMITTING ACTS NOT ALLEGED IN THE
CRIMINAL COMPLAINT.

POINT IV

THE CONVICTION MUST BE REVERSED BECAUSE THE
FACTS AS ALLEGED IN THE COMPLAINT DO NOT
CONSTITUTE HARASSMENT AS A MATTER OF LAW AND
THE FACTS ADDUCED AT TRIAL DID NOT ESTABLISH
ALL THE ELEMENTS OF N.J.S.A. 2C:33-4(a).

POINT V

THE CONVICTION MUST BE REVERSED BECAUSE THE
TRIAL JUDGE IMPROPERLY USED FACTS ADDUCED IN
A DIFFERENT MATTER, AND FACTS NOT ADDUCED AT
TRIAL BUT ALLEGEDLY KNOWN TO THE JUDGE
PERSONALLY, TO REACH HER DECISION.

POINT VI

THE CONVICTION MUST BE REVERSED BECAUSE THE
TRIAL JUDGE IMPROPERLY FAILED TO DISCLOSE
HER PRIOR RELATIONSHIP WITH THE CITY OF
JERSEY CITY AND HER PRIOR EMPLOYMENT WITH
JERSEY CITY CORPORATION COUNSEL.



                     15                        A-6032-12T2
              POINT VII

              THE CONVICTION MUST BE REVERSED BECAUSE THE
              DEFENDANT DID NOT RECEIVE A FAIR TRIAL
              BEFORE AN IMPARTIAL JUDGE IN VIOLATION OF
              HIS CONSTITUTIONAL RIGHTS AND THE TRIAL
              JUDGE    IMPROPERLY  HAD   AN    EX   PARTE
              COMMUNICATION WITH THE PRIVATE PROSECUTING
              ATTORNEY.

    We      will     start      our     analysis         by   addressing      defendant's

argument    challenging         the    Law     Division's       ruling    upholding       the

municipal      court    judge's        decision          to   allow    Lerner's      private

attorney to prosecute the harassment charge against him.                                   Our

review   of    the     record     leads       us    to   conclude      that   the    private

attorney      who    prosecuted        this    case      against      defendant     did   not

submit the certification required by Rule 7:8-7(b), and was thus

not vested with the authority to represent the State at the time

she prosecuted defendant.               In permitting this attorney to assume

the role of prosecutor in this case, the municipal court judge

mistakenly      relied       on    a     certification           this     same      attorney

submitted      in    support      of   an     application       to    prosecute      a    case

against defendant's wife, Diana Jeffrey.                       The Law Division erred

in upholding the municipal court judge's decision under these

circumstances.

    We further hold that the failure of the municipal court to

enforce the requirements of Rule 7:8-7(b) renders defendant's

conviction void ab initio.                As we stated in State v. Valentine,



                                               16                                   A-6032-12T2
374 N.J. Super. 292, 297-98 (App. Div. 2005), judicial oversight

in this context and adherence to the requirements of the rule

are necessary to prevent a structural rift in the framework of

the entire judicial process[.]"

       The public policy concerns involved in permitting a private

attorney to assume the role of prosecutor and represent the

State in a particular case were articulated by Justice Pollock

on behalf of a unanimous Court in Storm.            The Court grappled to

strike   a   proper   balance   between   two   seemingly   irreconcilable

propositions.     As Justice Pollock noted, "[t]he challenge is to

respect the defendant's right to a fair trial while preserving

the contribution of private prosecutors to the disposition of

complaints in the municipal courts."            Storm, supra, 141 N.J. at

252.

       The Court was particularly concerned with the erosion of

public confidence caused by the inherent lack of impartiality

associated with a privately retained prosecutor.

             The overarching argument against private
             prosecutors is the risk they pose to a
             defendant's right to a fair trial.        A
             private prosecutor's dual responsibilities
             to the complaining witness and to the State
             breed numerous problems. Representation of
             the complainant in a related civil action
             could invest the prosecutor with a monetary
             interest in the outcome of the matter. That
             risk is particularly high if the prosecutor
             has agreed to receive a contingent fee in
             the civil action.    Even in the absence of



                                    17                            A-6032-12T2
           actual   conflict,    the   appointment    as
           prosecutor of an attorney for an interested
           party creates the appearance of impropriety.

           Conflicting     interests,      moreover,     can
           undermine a prosecutor's impartiality.        The
           loss   of   impartiality      can   affect    the
           prosecutor's assessment of probable cause to
           proceed;   the    disclosure    of    exculpatory
           evidence;   and    the    willingness    to  plea
           bargain.     Also      implicated      are    the
           prosecutor's ethical obligation "to see that
           the defendant is accorded procedural justice
           and that guilt is decided upon the basis of
           sufficient evidence."      In addition, private
           prosecutions    pose     the   risk    that   the
           complainant will use the municipal court
           proceeding to harass the defendant or to
           obtain an advantage in a related civil
           action.

           [Id.    at      252-53      (internal     citations
           omitted).]

    On the other side of the scale were the equally important

interests of preserving and expanding access to a forum for

resolutions of minor disputes that, if left unaddressed, could

escalate   into   more   serious    violent   confrontations.    As   more

eloquently stated by Justice Pollock:

           A municipal court is "the people's court."
           Municipal courts remain a place in which
           people, sometimes on the verge of violence,
           can seek relief.      In effect, municipal
           courts provide a safety valve for society.
           By providing access to impartial judges,
           municipal courts forestall violence and
           encourage   the   peaceful  resolution   of
           disputes.

           [Id. at 254.]




                                     18                          A-6032-12T2
    The Court concluded that the effectiveness of the municipal

court   as   a    forum     for   dispute    resolution   depended     upon   the

public's confidence in its ability to deliver impartial justice.

This could be achieved only if both complainant and defendant

trusted the impartiality of the proceedings.                   Ibid.   There is

the rub.     As the Storm Court ultimately acknowledged, "[t]o earn

that trust, the prosecutor, like the judge, must be impartial.

Inevitably,       private    prosecutions     undermine   confidence     in   the

integrity of the proceedings."             Ibid.   (Emphasis added).

    With this admonition in mind, we will focus our discussion

on how the Supreme Court decided to respond to this challenge.

Rule 7:8-7(b) authorizes the municipal court to permit a private

attorney     to    assume     the   role     of    municipal   prosecutor     and

represent the State in a particular case, only after determining

on the record that certain specific conditions exist, and that

the attorney has submitted a certification, in the form approved

by the Administrative Director of the Courts, addressing all of

the questions contained therein.

             The court may permit an attorney to appear
             as a private prosecutor to represent the
             State in cases involving cross-complaints.
             Such private prosecutors may be permitted to
             appear on behalf of the State only if the
             court   has  first   reviewed  the   private
             prosecutor's motion to so appear and an
             accompanying certification submitted on a
             form approved by the Administrative Director
             of the Courts. The court may grant the



                                        19                              A-6032-12T2
           private prosecutor's application to appear
           if it is satisfied that a potential for
           conflict exists for the municipal prosecutor
           due to the nature of the charges set forth
           in the cross-complaints. The court shall
           place such a finding on the record.

           [R. 7:8-7(b).]

       Distilled into manageable subparts, the first step under

Rule 7:8-7(b) requires the municipal court judge to determine

whether   the   parties     have   filed   cross-complaints         against   each

other.    In such a scenario, the municipal prosecutor is placed

in an untenable situation because each party is a defendant in

one case and a complaining witness in the other.                       Here, the

record shows defendant did not have a cross-complaint against

Lerner.     Although      defendant    represented       the   Liberty     Humane

Society in a pending civil action against Lerner, there is no

evidence that defendant had a pending personal complaint against

Lerner before the municipal court.

       In the absence of actual cross-complaints that create an

insurmountable conflict of interest for the prosecutor, there

are no legal grounds for the municipal court to permit a private

attorney to represent the State.                Because public policy favors

that   prosecutions    be    conducted     by    duly   appointed    independent

prosecutors, the municipal court judge should obtain a statement

from the municipal prosecutor, on the record, confirming the

existence of this conflict of interest, requiring his or her



                                      20                                 A-6032-12T2
recusal in the case.               However, "[i]f the municipal prosecutor

insists      on    proceeding      with    the      prosecution,       the    prosecutor's

decision should be final."              Storm, supra, 141 N.J. at 255.

       The second step under Rule 7:8-7(b) requires the municipal

court to review the private attorney's motion to assume the role

of     prosecutor.         This      motion         must     be      accompanied         by     a

"certification            submitted       on        a      form      approved       by        the

Administrative Director of the Courts."                           R. 7:8-7(b) (emphasis

added).        Here, the Law Division's finding that the municipal

court judge consolidated defendant's case with Jeffrey's case is

not supported by the record.                   Lerner's attorney did not file a

formal    motion         seeking     leave     to        prosecute    the    case     against

defendant or submit the certification required by Rule 7:8-7(b).

       The Law Division Judge referred to a brief captioned "State

v.     Diana      Jeffrey,     Re:    State         v.    Howard     Myerowitz"       in      his

memorandum of opinion.               In this appeal, however, the State has

not refuted defendant's claim that no such brief ever existed.

The record corroborates defendant's claim that Lerner's attorney

did    not     submit      a   Storm      certification            requesting     leave        to

prosecute the case against him.                      As     noted    infra,     the      letter

from     Lerner's        attorney     transmitting           her     personally       drafted

version      of    the    certification        required       by     Rule    7:8-7(b)      only

refers to the case of "State v. Diana Jeffrey, Complaint No.




                                               21                                     A-6032-12T2
S2010 009052 0906," and she sought only to be permitted to serve

as a private prosecutor in that matter.                     (Emphasis added).

     In the interest of clarity, and to guide the Law Division

and the municipal courts, we have attached as Exhibit A the

certification filed by Lerner's attorney purporting to comply

with the requirements of Rule 7:8-7(b).                      We have also attached

as   Exhibit          B    the     certification        form       approved        by    the

Administrative            Director    of    the      Courts.        Even      a     cursory

comparison of these two documents shows that the unapproved,

personally drafted certification submitted by Lerner's attorney

fails     to    materially         comply    in    several      respects          with   the

requirements       of       Rule   7:8-7(b)       or   the     Court's      impartiality

concerns in Storm.

     By    way    of      example,    the    personally       drafted    certification

indicates only that neither she nor any member of her firm will

represent       the       complaining      witness     in    any    civil     litigation

concerning the same or similar facts as are contained in the

complaint.        The approved form requires the attorney to certify

that:

               There is no civil litigation, existing or
               anticipated, between the complaining witness
               and the defendant concerning the same or
               similar facts as are contained in the
               complaint. In the event of such civil
               litigation, I have informed the complaining
               witness that neither I nor any member of my




                                             22                                    A-6032-12T2
            firm will undertake the complaining witness’
            representation in that matter.

            [(Emphasis added).]

      The   approved    form   requires       the   attorney    to    inform     the

municipal court whether the defendant "is or is expected to be

represented by counsel."            The personally drafted certification

does not address this issue.            Finally, the personally drafted

certification states, "[t]he municipal prosecutor can elect not

to conduct the prosecution."            (Emphasis added).            By contrast,

the approved form requires the attorney to certify that "[t]he

municipal prosecutor has elected not to conduct the prosecution.

Check if correct. [ ] If not, please explain[.]"                          (Emphasis

added).

      Despite these material deviations from the approved form,

the municipal court judge found the unapproved certification was

in "substantial compliance" with the requirements of Rule 7:8-

7(b).     We caution municipal court judges against adopting such a

lax approach to the requirements of this Rule.                 As we made clear

in Valentine, supra, "[a] plain reading of [Rule] 7:8-7(b) does

not     permit   an     interpretation        that    its      application        is

discretionary."        374   N.J.    Super.    at   297.    Use      of   the   form

approved by the Administrative Director of the Courts is not

discretionary.        The questions contained in the form, including

the precise phraseology used, constitutes the expressed method



                                       23                                  A-6032-12T2
adopted by the Supreme Court to accommodate the public policy

concerns expressed in Storm, supra.               141 N.J. at 254.

      The     certification      form    attached    here    as   Exhibit     B   was

approved by the Administrative Director of the Courts in 1999 to

comply with the mandate of Rule 7:8-7(b).                   The certification is

electronically available to all of the municipal courts of this

State.      Municipal Courts have an obligation to provide this

certification        form   to   any    private   attorney    seeking    leave     to

assume the role of prosecutor in a given case.7

                                          IV

      The municipal court's failure to enforce the requirements

of Rule 7:8-7(b) rendered defendant's conviction for the petty

disorderly offense of harassment void ab initio.                   Thus, we need

not   reach    the    remaining    issues      raised   by   defendant    in      this

appeal.       We remand this matter for a new trial.                    We do not

retain jurisdiction.

      Reversed and remanded.            We do not retain jurisdiction.




7
  We recognize that modern technology permits easy access to this
type   of   information   by   simply  attaching   the   approved
certification form to a municipal court's website or to the New
Jersey Judiciary website.    However, the acceptable method for
ensuring compliance with this aspect of Rule 7:8-7(b) is a
question that should be addressed by the Administrative Director
of the Courts.



                                          24                                A-6032-12T2
                              EXHIBIT A

___________________________

STATE OF NEW JERSEY,

       (Donna Lerner)                  JERSEY CITY MUNICIPAL COURT
                                             HUDSON COUNTY

           Plaintiff,                  Complaint    No.S2010   009052
0906

V.
                                       CERTIFICATION IN SUPPORT OF
DIANA H. JEFFREY                       APPLICATION FOR: APPOINTMENT
                                       AS PRIVATE PROSECUTOR
           Defendant.                  PURSUANT TO R.7:8-7(B)

__________________________


TO:    Clerk
       Jersey City Municipal Court
       365 Summit Avenue
       Jersey City, New Jersey 07306

       Jersey City Municipal Court Prosecutor
       Jersey City Municipal Court
       365 Summit Avenue
       Jersey City, New Jersey 07306

       Howard Z. Myerowitz, Esq.
       [Attorney for Diana H. Jeffrey, Defendant]

       [        ] of full age, being duly sworn, certifies:

1.     I am an Attorney at Law of the State of New Jersey.

2.     This Certification is being supplied to the Jersey City
       Municipal Court pursuant to the provisions of R.7:8-7(b)
       and State v. Storm, 141 N.J. 245 (1995) to provide the
       Court and the Municipal Prosecutor with all the facts that
       may foreseeably affect the fairness of the proceedings to
       enable the court to determine whether I may be appointed as
       an impartial private prosecutor for Donna Lerner, the
       complaining witnesses in the above matter.
3.   The complaining witnesses are individuals.

4.   There is no actual conflict of interest arising from my
     representation and fee arrangement with, the complaining
     witnesses.

5.   The municipal   prosecutor   can   elect   not   to   conduct   the
     prosecution.

6.   Neither I nor any member of my firm will represent the
     complaining witness in any civil litigation concerning the
     same or similar facts as are contained in the complaint.

7.   There are no other facts that could reasonably affect the
     impartiality of the private prosecutor and the fairness of
     the proceedings or to otherwise create an appearance of
     impropriety.

     I hereby certify that the foregoing statements made by me
are true.   I am aware that if any of the foregoing statements
made by me are willfully false, I am subject to punishment.

Dated:   February 7, 2011


                                   ___________________________
                                   [Original Certification bears
                                   the    signature     of    the
                              attorney]




                                  2                            A-6032-12T2
                            EXHIBIT B

RULE 7:8-7(b) CERTIFICATION APPLICATION FOR APPOINTMENT AS
PRIVATE PROSECUTOR
State            of            New            Jersey           vs.
________________________________________________________________
___________
Docket                                                  Number(s):
________________________________________________________________
___________
Charge(s):
________________________________________________________________
___________
Attorney Information:
Name:
________________________________________________________________
___________
Address
________________________________________________________________
___________
________________________________________________________________
___________
Telephone                                                  Number:
________________________________________________________________
___________
This       Certification       is       supplied      to       the
________________________________________________________________
____
Municipal Court, pursuant to the provisions of R. 7:8 -7(b) and
State v. Storm, 141 N.J. 245 (1995) to provide the court and the
prosecutor with all facts that may foreseeably affect the
fairness of the proceedings to enable the court to determine
whether I
may   be   appointed   as   an    impartial   private   prosecutor
for________________________________
_______________________________________________, the complaining
witness in the above matter.
1. (Please circle the applicable letter). The complaining
witness is (a) an individual, (b) a business (please describe):
________________________________________________________________
_________________________________
or (c) an entity with its own police department (please
describe): _______________________________________________
________________________________________________________________
_________________________________
2. There is no actual conflict of interest arising from my
representation of, and fee arrangement with, the complaining
witness.
Check    if   correct.   [    ]    If   not,   please    explain:
________________________________________________________________
_
________________________________________________________________
_________________________________.
3. The municipal prosecutor has elected not to conduct the
prosecution. Check if correct. [ ] If not, please explain:
________________________________________________________________
_________________________________
________________________________________________________________
_________________________________
4. The defendant is or is expected to be represented by counsel.
[ ] Yes [ ] No [ ] Unknown. Notice has been given to
defendant’s attorney. [ ] Yes [ ] No
5. There is no civil litigation, existing or anticipated,
between the complaining witness and the defendant concerning the
same
or similar facts as are contained in the complaint. In the event
of such civil litigation, I have informed the complaining
witness
that neither I nor any member of my firm will undertake the
complaining witness’ representation in that matter.
Check    if   correct.   [    ]    If   not,   please    explain:
__________________________________________________________
________________________________________________________________
___________________________________
6. There are no other facts that could reasonably affect the
impartiality of the private prosecutor and the fairness of the
proceedings or otherwise create an appearance of impropriety.
Check if correct. [ ] If not, please explain:
________________________________________________________________
_________________________________
________________________________________________________________
_________________________________.
Comments:
________________________________________________________________
___________________________________
________________________________________________________________
___________________________________
Please attach additional sheets, if necessary.
CERTIFICATION IN LIEU OF OATH
I hereby certify that the foregoing statements made by me are
true. I am aware that if any of the foregoing statements made by



                                2                        A-6032-12T2
me are willfully false, I am subject to punishment.
________________________
_________________________________________
Date Name of Applicant
(February,




                               3                      A-6032-12T2
