STATE OF NEW JERSEY v. MARIANNE MCINTYRE-CAULFIELD

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1277-17T1

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
May 18, 2018
v.
APPELLATE DIVISION
MARIANNE MCINTYRE-CAULFIELD,

Defendant-Appellant.
_______________________________

Submitted May 8, 2018 – Decided May 18, 2018

Before Judges Fisher, Fasciale and Moynihan.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Accusation
No. 17-09-0823.

Wilentz, Goldman & Spitzer, PA, attorneys
for appellant (Darren M. Gelber, of counsel
and on the brief).

Andrew C. Carey, Middlesex County
Prosecutor, attorney for respondent State of
New Jersey (Brian D. Gillet, Deputy First
Assistant Prosecutor, on the brief).

Lowenthal & Abrams, PC, attorneys for
respondents Parents of W.V. (Michael W.
Landis, on the brief).1

1
This law firm represents individuals who are not parties in
this interlocutory appeal. Rather, the firm is counsel to
plaintiffs in a civil lawsuit against defendant. The
individuals in the civil suit remain opposed to defendant's
request for a Rule 3:9-2 civil reservation.
The opinion of the court was delivered by

FASCIALE, J.A.D.

This is a tragic case involving the death of an infant that

occurred after defendant placed him on his stomach for a nap in

her daycare-home business. Two lawsuits resulted from the

incident. The State charged defendant with second-degree

endangering the welfare of a child,
N.J.S.A. 2C:24-4(a)(2); and

the infants' parents filed a civil lawsuit against defendant

seeking money damages.

The State consented to defendant's admission into pre-trial

intervention (PTI), and agreed to drop the charges if she

successfully completed the program. Enrollment into PTI,

however, required that defendant plead guilty because of the

second-degree charge. Before pleading guilty, defendant's

insurance company disclaimed coverage in the civil matter.

Without insurance – and a civil reservation – defendant faced

disastrous financial consequences if she pled guilty because the

parents could use her plea as an admission of liability. These

consequences created a genuine obstacle to resolving the

criminal charge.

Defendant overcame that impediment by relying on Rule 3:9-2

and requesting, without opposition from the State, that her

guilty plea not be evidential in the civil dispute. Defendant

2 A-1277-17T1
argued that the consequences of her guilty plea in the civil

case – likely devastating financial ruin because she was

uninsured – constituted good cause under the rule. The judge

denied her request and entered the order under review.

The legal question – when enrollment into the PTI program

is contingent on a defendant pleading guilty to a second-degree

charge – is whether the civil consequences of wreaking

devastating personal financial havoc on a defendant constitutes

good cause under Rule 3:9-2. We hold that such a financial

circumstance establishes good cause permitting a civil

reservation. We emphasize that the civil reservation here

eliminated the obstacle to avoiding an unnecessary criminal

trial against defendant, who feared that the civil claimants

would later use her plea of guilty as a devastating admission of

civil liability.

Applying a de novo review to this legal question, State v.

Nash,
212 N.J. 518, 540-41 (2013), we conclude that the judge

erred by denying defendant's request to plead guilty with a

civil reservation. We therefore reverse.

The facts are undisputed. On December 1, 2015, the five-

month-old infant died. Before the State filed the charge, the

parents' first civil attorney notified defendant that he

3 A-1277-17T1
represented the parents, and directed defendant to forward his

representation letter to her "insurance company or legal

representative." Defendant complied.

About a week after receiving the letter from the civil

attorney, the State charged defendant with the offense.

According to defendant's merits brief, the State's theory

"centered on the admitted fact that defendant had placed the

infant on his stomach for a nap." Along these lines, defense

counsel remarked in the brief that the American Academy of

Pediatrics, since the 1990s, has recommended that infants sleep

on their backs in an attempt to reduce infant deaths classified

as Sudden Infant Death Syndrome. The cause of the tragic death,

however, is not before us.

In July 2016, a senior claims representative for

defendant's insurance company – relying on various exclusions in

the policy – issued a letter denying insurance coverage and

refusing to defend defendant in any civil suit arising from the

incident. Without waiving the insurance company's rights to

rely on additional exclusions in the policy, she explained that

no insurance coverage existed because the incident occurred "out

of business pursuits in [defendant's] home." She also

referenced other sections in the policy that would purportedly

justify the insurance company's position. The claims

4 A-1277-17T1
representative "strongly urged [defendant] to retain personal

counsel, solely and completely at [her] own expense, to protect

[her] rights and interests."

Approximately three weeks later, a new civil attorney wrote

defendant. He explained that the parents retained his law firm

to represent them and the estate of the infant. The new

attorney instructed defendant not to destroy any video,

surveillance, or other evidence from the accident scene, and

that if she did, defendant may receive sanctions for spoliation

of evidence. As to the extent of the civil damages proximately

caused by the incident, he added they were "yet unknown."

At some point, defendant applied for admission into the PTI

program. In January 2017, the criminal division manager

recommended rejection of the PTI application, and an assistant

prosecutor issued a rejection letter in February 2017. But the

parties in the criminal case engaged in further negotiations and

eventually, in September 2017, the prosecutor consented to

defendant's enrollment in the PTI program for a period of

thirty-six months. Although the parents initially objected to

PTI, the record reflects they were ultimately unopposed to

defendant's enrollment into the program.

The prosecutor notified defendant that – in addition to the

standard PTI conditions – she had to plead guilty to the second-

5 A-1277-17T1
degree charge. For second-degree offenses, such a requirement

is also mandated by
N.J.S.A. 2C:43-12(g)(3)(a). A few days

later, on September 14, 2017, the parties appeared before the

judge at the plea hearing. The parents were there and

participated in the hearing by giving a statement.

Defendant filled out her plea forms and specifically raised

the subject of pleading guilty with a civil reservation under

Rule 3:9-2. The filled-out forms reflect that the parties

acknowledged that the State would dismiss the criminal charges

if defendant successfully completed PTI – which is also

consistent with
N.J.S.A. 2C:43-12(g)(3) – and that "counsel [is]

to request [a] civil reservation." At the end of plea hearing,

the judge addressed defendant's Rule 3:9-2 request. He "signed

off" on the request, but then reserved decision. The following

colloquy occurred:

[Judge:] I understand there is a request for
a civil reservation. . . . I don't know if
the State is going to take any further
argument or application with respect to
that.

[Assistant Prosecutor:] Judge, we'll submit
to the [c]ourt on that issue.

[Judge:] . . . If the family has counsel,
they may wish to be heard on that . . . and
I'll give them the opportunity to do so.
So, I'll . . . carry that for ten days
before I make a ruling in case any
additional documentation is submitted.

6 A-1277-17T1
I've signed off on the order.

[Emphasis added.]

In the State's merits brief, an assistant prosecutor (without

obtaining an order permitting the supplementation of the record)

supplied us with a copy of an August 11, 2017 email she wrote to

defense counsel – before the plea hearing and preparation of the

plea forms – stating that the State could not agree to the civil

reservation. But at the plea hearing, as the quoted colloquy

reflects, the State submitted on the issue. Although the

infant's parents later objected to the reservation, the State

never filed opposition.

In October 2017, the judge issued the order under review

denying her request. One month later, the parents filed their

civil wrongful-death complaint against defendant, as well as a

declaratory judgment suit against the insurance company. They

alleged that the insurance company wrongfully denied coverage, a

defense, and indemnification for the incident.

In December 2017, a senior claims representative wrote

defendant reiterating that there existed no insurance coverage

for the parents' claim for damages related to the incident. She

explained that the "claim falls squarely in the purview of the

'business exclusion' in the [p]olicy." It is undisputed that

7 A-1277-17T1
defendant operated the daycare business out of her home on the

day of the incident.

II.

On appeal, defendant maintains that the judge erred as a

matter of law. Defendant contends that she established good

cause to accept her guilty plea with a civil reservation that it

not be evidential in the civil lawsuit. Defendant adds that she

showed good cause especially because her plea deal, and the

statute, reflect the State would drop the charges if she

successfully completed PTI. Defendant urges us to reverse the

order.

It is well known that guilty pleas in criminal proceedings

are evidential in a related civil case as a statement by a party

under N.J.R.E. 803(b)(1). Maida v. Kuskin,
221 N.J. 112, 125

(2015). However, "[f]or good cause shown[,] the court may, in

accepting a plea of guilty, order that such plea not be

evidential in any civil proceeding." R. 3:9-2. "The purpose of

[Rule 3:9-2] is to avoid an unnecessary criminal trial of a

defendant who fears that a civil claimant will later use [her]

plea of guilty as a devastating admission of civil liability."

Stone v. Police Dep't of Keyport,
191 N.J. Super. 554, 558 (App.

Div. 1983). Defendant realized this purpose by pleading guilty

to the charge.

8 A-1277-17T1
Case law has defined two examples of what constitutes good

cause under Rule 3:9-2. First, "'good cause' exists for a no-

civil-use agreement when such an agreement is necessary to

remove an obstacle to a defendant's pleading guilty to a

criminal charge." State v. Haulaway, Inc.,
257 N.J. Super. 506,

508 (App. Div. 1992). Second, good cause may "be shown to grant

a reservation where the civil consequences of a plea may wreak

devastating financial havoc on a defendant." State v.

Tsilimidos, 364 N.J. Super. 454, 459 (App. Div. 2003).

Defendant showed good cause under both examples.

The judge's ruling presented a Hobson's choice for

defendant – either forgo PTI and take her chances at a criminal

trial, or have the guilty plea be evidential in the civil case

and face a ruinous judgment. The purpose of Rule 3:9-2,

however, obviates such a choice. We disagree with the judge's

rationale in several important respects.

The judge observed there was no pending civil lawsuit at

the time of the plea. That is true. But the plain text of the

rule, and the case law interpreting it, does not make its

applicability dependent on a filed lawsuit. The lack of a

pending civil lawsuit is not determinative, especially here

where the statute of limitations (SOL) would not run for

approximately nineteen and one-half years.
N.J.S.A. 2A:14-21

9 A-1277-17T1
(applying the SOL to an action on behalf of a minor). Making

eligibility for a Rule 3:9-2 request dependent on the filing of

a civil complaint – something that is beyond the control of a

defendant – is beyond the scope of the rule.

Rule 3:9-2 applies to a defendant who "fears that a civil

claimant will later use" the plea as an admission of civil

liability. Stone,
191 N.J. Super. at 558. The existence of a

good faith fear – that a civil claimant will later use the

guilty plea as an admission of liability in a civil case –

triggers the rule. That fear is readily apparent here: on

behalf of the parents and estate, two separate civil attorneys

wrote defendant; one sent her a letter even before the State

filed the second-degree charge. They directed defendant to

notify her insurance company or legal representative regarding

the incident; and the second attorney informed defendant that

destruction of any evidence subjected her to a spoliation claim,

and that the damages in the civil case were "yet unknown." And

as it turned out, defendant received the civil complaint about a

month after the judge entered the order.

Although the judge remarked that defendant did not provide

evidence of her pre-existing financial condition, the rule and

case law require no such showing. Nevertheless, the disclaimer

by her insurance company, on two occasions, for the claims

10 A-1277-17T1
directly associated with the incident, as well as the insurance

company's repeated refusal to defend defendant in the eventual

civil action, demonstrated the precarious financial situation

that defendant faced. Under the facts of this case, the self-

evident financial predicament supported defendant's good faith

basis that a civil lawsuit would wreak financial havoc.

The judge based his decision in part on defendant's failure

to challenge the insurance company's disclaimer position by not

filing a declaratory judgment lawsuit. Imposing such a

requirement would be inconsistent with the purpose of Rule 3:9-

2. Like the SOL, requiring defendant to adjudicate an

insurance-coverage declaratory judgment lawsuit could take years

to resolve. Certainly the reservation accomplishes the purpose

of the rule, which is designed in part to "eliminate an obstacle

to a plea and avoid an unnecessary criminal trial." Tsilimidos,

364 N.J. Super. at 459.

The judge concluded the request was premature because

defendant had not yet completed PTI. But the failure to

complete the program is unrelated to her fear that the civil

claimants would use the plea as an admission of liability.

Defendant faces serious consequences in the criminal case –

including a presumption of imprisonment of up to ten years,

N.J.S.A. 2C:43-6(a)(2) – if she does not successfully complete

11 A-1277-17T1
PTI. One has nothing to do with the other. Waiting until the

expiration of the three-year PTI term before adjudicating her

Rule 3:9-2 request is not an option for many reasons.

Like conditioning eligibility for making the civil

reservation request on the civil claimants first filing a

personal injury complaint, or making eligibility for the

reservation dependent on her own filing of a declaratory

judgment lawsuit, staying defendant's request for the completion

of her PTI three-year term is fraught with practical problems.

For instance, both the criminal and civil cases would likely be

stayed pending completion of PTI. The delays would implicate

defendant's constitutional speedy-trial rights in the criminal

case, witness memories in both actions would lapse over time,

and there would be an enormous cost to the civil claimants and

defendant – financially and emotionally – of having the stayed

lawsuits remain unresolved.

Finally, the judge determined that there existed no

evidence that defendant bargained for the civil reservation as

part of her plea. But the plea forms verify that the civil

reservation was a part of the negotiations. Importantly, when

questioned at the plea hearing about defendant's request for a

civil reservation, the State "submitted" on the issue. It

voiced no objection. Thus, the State did not indicate in the

12 A-1277-17T1
plea forms or on the plea record that it objected. And it did

not file opposition after the judge "signed off" on the order,

during the ten-day period while he was waiting for the family's

objection. Nevertheless, defendant showed her good faith belief

that the guilty plea would wreak devastating financial havoc,

which is sufficient in-and-of-itself to establish good cause.

Reversed.

13 A-1277-17T1

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