SUPERIOR COURT OF NEW JERSEY
State of New Jersey, Plaintiff -Vs- Mohamed F. El-Hewie, Defendant, Pro se | CRIMINAL DIVISION ESSEX VICINAGE Municipal Appeal No. MA-2010-058 Motions |
Motions to set aside the judgment of the municipal court,
for trial by jury, and to consolidate pending appeal in the superior court of Paterson
Pursuant to Rule 3:10-1, defendant-appellant, Mohamed F. El-Hewie, files the following three motions:
(1) Motion to set aside the judgment of Bloomfield Municipal Court;
(2) Motion to request trial by Jury; and
(3) Motion to consolidate a pending appeal in the Superior Court of Paterson with the present appeal.
Grounds for the sought relief
Defendant-appellant, Mohamed F. El-Hewie, seeks relief against two police officers, the State of New Jersey, the Division of State Police of the New Jersey Department of Law and Public Safety, and the offices of the prosecutors of the involved police departments or municipal courts, for violating defendant’s civil rights by imposing arbitrary, excessive, and improper citations that deprive defendant from his driving privileges and imposes enormous financial burden on defendant and that resulted from the poor training of the involved police officers and their abuse of discretion in conducting their official duties.
Wherefore, the mere reversal, by this court, of the judgments of the involved municipal courts would not resolve the pervasive violations of civil rights by the poorly trained and poorly educated police officers, or the lawlessness of the prosecutors of the municipal courts, trail by jury is warranted. The actions of the involved police officers and prosecutors of the municipal courts constitute violation of Section 1983 of Title 42 of the Civil Rights Act, which states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Facts
1. In the State of New Jersey, most moving traffic violations are plea-bargained and most citizens opt to accept such plea bargains in order to avoid the lengthy and expensive trials.
2. In most plea-bargains, the prosecutor of the municipal courts sides with police officers and most, if not all, municipal courts judges find defendants “guilty as charged”.
3. In the present legal action, the state witness, Trooper Richard Alam, was called to the scene of an accident, on July 9, 2010, that involved minor vehicular collision, in a weather of heavy rain. Trooper Alam admitted on the record that:
(a) he arrived after the accident took place;
(b) he never saw defendant operating his vehicle;
(c) he did not seek the condition of the break-lights of the other vehicle;
(d) he did not ask the other driver whether he changed lanes abruptly or not;
(e) he did not inquire about the weather conditions when the accident occurred.
4. Despite the facts that Trooper Alam did not witness the accident and did not gather the proper information, he issued an 8-point citation against this defendant which would result into enormous hike in insurance and deprivation from employment, in jobs that seek clean driving records.
5. Specifically, Trooper Alam issued the following citation:
“39:4-97, careless driving, which is the offense charged by the trooper indicates as follows. "A person who drives a vehicle carelessly or without due caution and circumspection in a manner so as to endanger or be likely to endanger a person or property shall be guilty of careless driving."
6. Trooper Alam admitted on record that he did not assess the amount of damage of any property, despite the fact that the trooper was involved in 500 accidents and worked for six years as a state trooper.
7. Trooper Alam claimed that defendant was “careless” despite not witnessing the accident or gathering the proper and relevant information that could support his conclusion.
8. Trooper Alam involved in 500 accidents, yet could not tell whether defendant opted to choose a minor accident than to act abruptly and cause greater harm to the busy traffic that would have resulted in grave consequences to others.
9. The prosecutor of the municipal court, Mr. Sant’ Ambrogio, claimed that defendant was driving too close or too fast. Mr. Sant’ Ambrogio omitted the fact that defendant was in heavy traffic where due consideration must be given to other vehicles that might not all be adhering to perfect or safe driving pattern.
10. The municipal court judge, Honorable John A. Paparazzo, J.M.C. based his sentence on mere speculation or prior driving record, which was obtained by plea bargain and has no connection to the events of the current legal matter.
Legal arguments
I. The State of New Jersey is in violation of a federal Decree to comply with ten-provisions in order to prevent the pervasive violations of the civil rights of citizens.
Defendant-Appellant’s legal matter constitutes the failure of the State of New Jersey to comply with the Decree entered on 30th day of December 30, 1999, in the United States District Court of Trenton, in Civil Action Number 99-5970 (MLC) entitled: “UNITED STATES OF AMERICA v. STATE OF NEW JERSEY and DIVISION OF STATE POLICE of the NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, In said Decree, The United States filed its Complaint against the Defendants alleging violations of 42 U.S.C. §14141 and 42 U.S.C. §3789d(c). The Complaint alleges [a pattern or practice of conduct by troopers of the New Jersey State Police that deprives persons of rights, privileges, or immunities secured or protected by the Constitution and the laws of the United States.]
Defendants deny that the State Police has engaged in a pattern or practice of conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, yet agreed to the proposed Decree, which includes the following provisions:
1) Policy Requirements (¶¶26-28): State troopers may not rely to any degree on the race or national or ethnic origin of motorists in selecting vehicles for traffic stops and in deciding upon the scope and substance of post-stop actions, except where state troopers are on the look-out for a specific suspect who has been identified in part by his or her race or national or ethnic origin. The State Police shall continue to require that troopers make a request for consent to search only when they possess reasonable suspicion that a search will reveal evidence of a crime, and all consent searches must be based on the driver or passenger giving written consent prior to the initiation of the search.
2) Traffic Stop Documentation (¶¶29-34): State troopers engaged in patrol activities will document the race, ethnic origin, and gender of all motor vehicle drivers who are the subject of a traffic stop, and also will record information about the reason for each stop and any post-stop action that is taken (including the issuance of a ticket or warning, asking the vehicle occupants to exit the vehicle and frisking them, consensual and non-consensual vehicle searches, uses of force, and arrests).
3) Supervisory Review of Individual Traffic Stops (¶¶35-39): Supervisors regularly will review trooper reports concerning post-stop enforcement actions and procedures, and patrol car video tapes of traffic stops, to ensure that troopers are employing appropriate practices and procedures. Where concerns arise, supervisors may require that the trooper be counseled, receive additional training, or that some other non-disciplinary action be taken. Supervisors also can refer specific incidents for further investigation, where appropriate.
4) Supervisory Review of Patterns of Conduct (¶¶40-56): The State will develop and implement an early warning system, called the "Management Awareness Program," that uses computerized information on traffic stops, misconduct investigations, and other matters to assist State Police supervisors to identify and modify potentially problematic behavior. At least quarterly, State Police supervisors will conduct reviews and analyses of computerized data and other information, including data on traffic stops and post-stop actions by race and ethnicity. These reviews and analyses, as appropriate, may result in supervisors implementing changes in traffic enforcement criteria, training, and practices, implementing non-disciplinary interventions for particular troopers (such as supervisory counseling or additional training), and/or requiring further assessment or investigation.
5) Misconduct Allegations (¶¶57-92): The State Police will make complaint forms and informational materials available at a variety of locations, will institute a 24-hour toll-free telephone hotline, and will publicize the State Police toll-free number at all State-operated rest stops located on limited access highways. The State also will institute procedures for ensuring that the State Police is notified of criminal cases and civil lawsuits alleging trooper misconduct. Allegations of discriminatory traffic stops, improper post-stop actions, and other significant misconduct allegations will be investigated by the Professional Standards Bureau inside the State Police or by the State Attorney General's Office. All investigations will be properly documented. Where a misconduct allegation is substantiated concerning prohibited discrimination or certain other serious misconduct, discipline shall be imposed. Where a misconduct allegation is not substantiated, the State Police will consider whether non-disciplinary supervisory steps are appropriate.
6) Training (¶¶93-109): The State Police will continue to implement measures to improve training for recruits and incumbent troopers. The training will address such matters as supervisory issues, communication skills, cultural diversity, and the nondiscrimination requirements of the Decree. The State Police also will take steps to continue to improve its trooper coach program for new troopers. The Independent Monitor selected by the parties will evaluate all training currently provided by the State Police regarding traffic stops, and will make recommendations for improvements.
7) Auditing by the New Jersey Attorney General's Office (¶¶110-113): The State Attorney General's Office will have special responsibility for ensuring implementation of the Decree. The Office will conduct various audits of State Police performance, which will include contacting samples of persons who were the subject of a State Police traffic stop to evaluate whether the stops were appropriately conducted and documented. The Office also will audit State Police implementation of the Management Awareness Program, and procedures used for receiving, investigating, and resolving misconduct allegations.
8) State Police Public Reports (¶114): The State Police will issue semiannual public reports containing aggregate statistics on certain law enforcement activities, including traffic stop statistics.
9) Independent Monitor (¶¶115-121): An Independent Monitor, who will be an agent of the court, will be selected by the United States and the State of New Jersey to monitor and report on the State's implementation of the Decree. The responsibilities of the Monitor will include evaluating samples of trooper incident reports, supervisory reviews of incidents, and misconduct investigations, supervisors' use of the Management Awareness Program, and the use of non-disciplinary procedures to address at-risk conduct.
10) Decree Term (¶131): The basic term of the Decree will be five years, however, based on the State's record of compliance, the United States and the Independent Monitor may agree to a request by the State to shorten the term of the Decree if the State has been in substantial compliance for at least two years. Joint entry of this Decree is in the public interest since it provides for expeditious remedial activity and avoids the diversion of federal and State resources to adversarial actions by the parties. Additionally, the proposed Decree does not conflict with the collective bargaining agreements between the State Police and its troopers, as noted in the Decree at ¶128. For the reasons discussed above, entry of the Decree is lawful and appropriate. Therefore, the United States and the State jointly move for entry of the Consent Decree.
II. Appellant’s pending appeal in the Superior Court of Paterson entails the same pattern of deprivation of civil rights under color of law.
On August 10, 2010, another police officer, from the township of Little Falls, spotted defendant’s 1987’s Acura-Legend, stopped the defendant, did not like the “beat-up” old car and issued two citations to defendant.
At trial, in the Little Falls’ Municipal Court, the involved police officer lied about his motive in stopping defendant’s car, his motive for issuing the two citations, and could not tell whether he was driving west or east on the street where he stopped defendant’s car. The prosecutor of the Little Falls’ Municipal Court and the presiding judge colluded to find defendant guilty and fined Plaintiff $354.00 without stay of judgment.
As such, in a matter on merely one month, appellant was sentenced by two municipal court judges based on mere speculations by police officers who failed to exercise their official duties with due diligence.
For all the aforementioned reasons, Appellant’s pending legal matter in the Superior Court of Paterson should be consolidated with the above entitled action and presented to a jury.
III. Defendant is entitled to trial by jury in face of the blatant deprivation of his constitutional rights by state officers acting under color of law
Defendant-appellant brings this action against the State of New Jersey after many years of being subjected to the collusion of police officers, prosecutors and judges of municipal courts in promoting the abuse of discretion by poorly trained and poorly educated police officers. As stated above, two police officers, from two different towns, imposed harsh citations based on either mere speculation or mere disliking of the car, color of skin, or national origin of defendant.
A trial by jury is a constitutional right in criminal procedures where defendant would be subjected to severe financial punishments and deprivation of driving privileges and persistent harassment by lawless police officers.
prayer
Wherefore, this legal matter involves two police officers, who acted under color of law to deprive defendant of rights, privileges, or immunities secured or protected by the Constitution and the laws of the United States, and to which the State of New Jersey have agreed to comply with the [ten provisions] ordered by Honorable Mary L. Cooper, U.S.D.J., on 30th day of December 30, 1999, defendant-appellant prays that this court shall grant his request for trial by jury in order to expose the pervasive violation of the civil rights of citizens by the state agencies and state officials.
Respectfully submitted.
Mohamed F. El-Hewie
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