COUNSEL. VALERIA DOMINGUEZ: GOOD AFTERNOON YOUR HONOR. DEN
YOU THE ATTORNEY GENERAL VIRGINIA HERE REDEM NECESSARY ON BEHALF OF THE STATE.
MARCIA H. BLUM: AND MAR SHA BLUNL SIFRT DEN YOU THE PUM ^ RECEIVER
^ SEVER ^ SEVERE SORE KWAN KRUS PEN YA. CHIEF JUSTICE RABNER:
WELCOME COUNSEL. MISS DOME, PLEASE. VALERIA DOMINGUEZ: THANK YOU.
I WOULD LIKE TO RESPECTFULLY REQUEST 2 MINUTES FOR REBUTTAL
IF NECESSARY. CHIEF JUSTICE RABNER: THAT'S FINE.
VALERIA DOMINGUEZ: THANK YOU. MAY IT PLEASE THE COURT, DID YOU WORK
THE EARLY MORNING HOURS MUCH MAY DWENT SECOND, 2014, CREDIT MANY JOINED
DEFENDANT AND OTHERS ON A PORCH OF AN A BANTD OND HOUSE IN PATERSON. WHEN CREDIT
MANY SOUGHT TO LEAVE SHORTLY THEREAFTER, DEFENDANT CONFINED HER TO THE PORCH
AND TOLL HER SHE WOULD PAY FOR MONEY HER FRIEND HATD TAKEN FROM DEFENDANT. DID YOU
WORK THE HOUSHS LONG CONFINE MTH THAT ENSUED, DEFENDANT REPEATEDLY
PENETRATED CREDIT MANY ORALLY, VAGINALLY AND SOMETHINGLY AT SOMEONE POINT EVEN DIRECTED
LIST FROENLD TO FEN TRAIT HER AS WELL IN ADDITION TO PHYSICALLY A SAULING
AND VERBALLY TLIT EVENINGS HER. IN RULING THAT THE STATE COULD NOT HAVE CHARGED
DEFENDANT WITH KIDNAPPING, BASED ON CREDIT MS' PROLONGED CONFINEMENT THEREBY
VACATING THE STATE'S KIDNAPPING CONVICTION, THE APPELLATE DIVISION SET TROUBLING
FRES DENT THAT SHRUBBERY VERSED. DESPITE THE PROLONGED CONFINEMENT THE
ANGS FOUND THAT THE CONFINEMENT WAS NEARLY INCIDENTAL TO THE UNDERLYING TO WHAT
IT WRONGLY CHASHLTHS ADVERTISED AS A FOUR TO 5-HOUR CONTINUOUS SEXUAL ASSAULT.
IN SO DOING, THE COURT FOUND THAT THE RIFK OF HARM THE VICTIM FACED DURING THE
CONFINEMENT WAS NOT INDEPENDENT OF THE DANGER POOLED BY SEXUAL ASSAULT AND
THAT NO ADDICTIONAL FORCE WAS USED ABSENT THAT NEED TO COMPLITD SKLG A BUYS BUT
THIS HOLDING FAILS TO GIVE THE STATE THE FWOEN FIT OF ALL FAVORABLE TESTIMONY
AND FAVORABLE REASONABLE IJ FRENSS DRAWN FROM THAT TESTIMONY AND ^ IGNORE THE ^ IGNORE
IT FACT THAT A SKLTH CAN BE COMMITTED IN A MATTER OF MINUTES WITHOUT STRIKING
THE VINL IN THE FACE, WITHOUT FORCIBLY TAKING THE VICTIM'S MOMENT, WITHOUT TLELT
EVENING FUTURE ASSAULTS AND WITHOUT COMMITTING A COHORT TO PENETRATE THE
VINL AS WELL. HERE HAD DEFENDANT NOT COULD BE FIND CREDIT MANY, FOR A SUBSTANTIAL
PERIOD SHE WOULD NOT HAVE BEEN SUBJECTED TO REPEATED SEXUAL ASSAULTS AS WELL AS
PHYSICAL ASSAULTS AND TLITD EVENING HER WITH FUTURE HARM THE PANELS' MISS
INTERPRETATION AND MISAPPLICATION OF THE CASE LAW REGARDING WHAT CONSTITUTES A
CONFINEMENT FOR SUBSTANTIAL PERIOD UNDER THE KIDNAPPING STATUTE WARRANTS
HER V REFURSAL AND REINSTATEMENT OF DEFENDANT'S KIDNAPPING CONVICTION FOR 3
PRIENL REREASONS. FIRST, DECHTSDZ ^ CON ^ CONNECTICUT FINAL NLTD OF C M
WAS NOT MERELY INL DENAL TO THE THAN LIELG SEXUAL ASSAULT IN FACT HERE DEFENDANT
^ CON ^ CONNECTICUT FIEVENL MANY OF KRM WAS SUBSTANTIALLY CRIMINALLY
SIGNIFICANT. THE ^ CON ^ CONNECTICUT FINAL NLTD OF CREDIT MANY TO THE PORCH
STRINLDZ OF HER CLOTHING GAVE DECHTD A FREE HANDS TO DEAL WITH HIS ISOLATED VICTIM
AND JUST BECAUSE DEFENDANT SEXUALLY ASSAULTSED C M DURING THE CONFINEMENT
DOES NOT MINE THAT THE LENGTHY CONFINEMENT COULD NOT SUSTAIN A SEPARATE CHARGE
OF KIDNAPPING. SECOND, EVIDENCE OF INTERRUPTION IN THE
UNDERLYING CRIME HAS NEFR BEEN RIESHD UNDER THE STATUTE AND AS THIS CASE SHOWS IT'S
NOT PARTICULARLY SOUND. NOT ONLY IS IT UNCLEAR WHAT WOULD HAVE CONSTITUTED AN
INTERRUPTION UNDER THE OPINION THE STATE GENERALLY CANNOT CHARGE AN
INTERRUPTION -- CHARGE A DEFENDANT WITH KIDNAPPING IF HE RAPS THE VICTIM DURING
THE CONFINEMENT NLGS THE DEFENDANT TAKES A BREAK OR SOMEONE OR SOMETHING
INTEREST RUNTS THE DEFENDANT. AND EVEN IF AN INTERRUPTION IS APART OF THE ANALYSIS,
THERE IS NO UPON THE DEFENDANT HERE WAS ABLE TO COMMIT ALL OF THE ACTS FOR
AS LOJ AS HE DID WITHOUT THERE BEING ANY BREAKS OR IN RUPTHSS IN BETWEEN THE ASSAULTS.
AND FINALLY THIRD KID NAMG BY CONFINEMENT AND KIDNAPPING FWIE AS PER TAGS
HAS ALWAYS HAVE ALWAYS BEEN SEPARATE SCENARIOS. UNDER BOTH THE STATUTE AND CASE
LAW AND FOR THE PANEL TO SUGGEST THAT THE OUTCOME MAY HAVE BEEN DIFFERENT
HAD THE VICTIM BEEN MOVED OFF THE PORCH IS PROBLEMATIC BECAUSE UNDER THE CONFINEMENT
SCENARIO OF KIDNAPPING THE VICTIMS DID NOT NEED TO BE MOVED. THE SHEER
FACT THAT DEFENDANT WAS ABLE TO CONFINE C M FOR HOURS ONLY THE PORCH REVEAL HOW
ISOLATED THE PORCH WAS AND IT IS UNDENIAL ABL THAT THE LONGER DEFENDANT CONFINED
C M ONLY THE POSH MUCH THE MORE VULNERABLE SHE BECAME. FOR
ALL THESE REASONS THE STATE RESPECTFULLY ASKS THIS COURT TO REVERSE THE JUDGMENT
OF THE APPELLATE DIVISION AND REINSTATE DEFENDANT'S KIDNAPPING CONVICTION.
CHIEF JUSTICE RABNER: MISS DOME, THE APPELLATE DIVISION AS
YOU KNOW CONCLUDED FROM THE RECORD THAT THIS WAS A CONTINUOUS ACT OF SEXUAL ASSAULT
THAT EXTENDED OVER HOURS. CAN YOU POINT TO THE RECORD TO DEMONSTRATE WHY
THAT CONCLUSION WAS WRONG? VALERIA DOMINGUEZ: YES. YES, YOUR HONOR.
SO HERE WE EVER THE VICTIM'S TESTIMONY THAT SHE WAS INITIALLY STRUCK IN
THE FACE AND THAT'S WHEN THE CONFINEMENT BEGAN. THEN SHE TESTIFIED AND AGAIN THE
STANDARDS V REVIEW HERE IS ALL FAVORABLE THE STATE RECEIVES THE BENEFIT
OF ALL FAVORABLE TESTIMONY. SHE TESTIFIED THAT SHE WAS HE NEELD ON HER ARMS AND
STOLE #40DZ FROM HER AND THEN HE FORCED HER ONTO HER NEESZ TO PEFRNL ORAL
SEX AND THEN WE KNOW THAT SHE TESTIFIED THAT THEN SHE WAS REPEATEDLY PENETRATED
VAGINALLY AND ANLLY AND THEN ULTSLY THE DEFENDANT INSTRUCTED HIS FRIEND
TO IF HE WANTED TO PENETRATE HER TO DO SO AS WELL. AND AT THAT POINT SHE WAS THEN
PENETRATED BY BOTH DEFENDANTS. AND IT'S BEEN RECOGNIZED HERE IT'S BEEN
RECOGNIZED BY COURTS THAT SEXUAL ACTS EVEN IF THEY OCCUR WITHIN THE SAME CONTINUING
CRIMINAL EPISODE THEY ARE THEY CAN AMOUNT TO BE SEPARATE AND DISZ STING IN DIG
IN A TEASE AND HERE WE HAVE THE VICTIM TESTIFYING TO BEING ANLLY PENETRATED. VAGINALLY
PENETRATED AND FORCED TO PERFORM ORAL SEX REPEATEDLY. AND TO SUGGEST THAT
THIS WAS ONE FOUR TO 5-HOUR CONTINUOUS SEXUAL ASSAULT IS NOT SUPPORTED BY THE FACTS
THAT SHE TESTIFIED TO VARIOUS SEXUAL ACTS BEING INFLICT UPON HER.
JUSTICE ALBIN: EVEN IF IT WAS CONTINUAL YUS, WHY WOULDN'T THAT CONSTITUTE
SUBSTANTIAL CONFINEMENT? UNDER THE STATUTE? WHY SHOULD THERE BE AN IR
RATIONAL DISTINCTION IF THERE IS SOME SORT OF LIKE SPRAGS IN TIME OF LIKE A MINUTE,
YOU HAVE A KIDNAPPING BUT IF IT'S 10 HOURS OF CONTINUAL ASSAULTS, SEXUAL ACTS
AND THE LIKE, THEN IT SOMEHOW DOESN'T FIT WITHIN THE KITD NAPG STATUTE UNDER
THE CONFINE MTH PIECE. VALERIA DOMINGUEZ: YES, YOUR HONOR. I
COMPLETELY FREE AND THAT'S WHY THIS ADDITION THAT THERE HAD THERE BE AN
INTERRUPTION IN THE UNDERLYING CRIME THAT THAT WOULD HAVE RESULTED IN A DIFFERENT
OUTCOME LEADS TO AB SURD RESULTS. AND IT IS PROBLEMATIC. AND WE WOULD
SUGGEST THE BETTER ANALYSIS IS REALLY LOOKING AS THIS COURT HAS HELD IN LA FRANGS
AND IN A VIN SEE WHETHER HER RISK EVER HARNLT WAS ENHANCED BY THE CONFINEMENT
WHETHER THE CONFINEMENT EXCEEDED THAT WHICH WAS NECESSARY TO COMMIT ANY OF THE
NGDZ LYING CRIMES HERE. AND IN THIS CASE IT ABSOLUTELY DID. IF DEFENDANT
LOOKING AT DEFENDANT'S OWN WORDS THE VICTIM TEFRTD DEFENDANT SAID WHEN SHE ATTEMPTED
TO LEAST PORCH YOU ARE NOT GOING ANYWHERE, YOU ARE GOING TO PAY FOR THE
MONEY HER FRIND HATD TAKEN IF HE INTENDED TO ROB HER HE INTENDED TO FORCE HER TO
PERFORM THE SEXUAL ACT THAT THEY HAD DISCUSSED BEFORE THE CONFINEMENT BEGAN,
THIS CONFINEMENT OF HER LASTING FOR HOURS FAR EXCEEDS THAT WHICH WAS NECESSARY
TO COMMIT A ROIB, TO COMMIT ONE SEXUAL ASSAULT. HERE WE HAVE THE VICTIM BEING
CONFINED FOR HOURS AND SUBJECTED TO SIGNIFICANT HARM THAT CONTINUED TO
INCREASE AS THE NIGHT WENT ON UNTIL SHE WAS ABLE TO ESCAPE. CHIEF
JUSTICE RABNER: HOWEVER ONE LOOKS AT THE RECORD, THIS EPISODE LASTED A VERY LONG
PERIOD OF TIME. YOU HAVE' USED FOUR NAV HOURS A COUPLE OF OF TIMES IN YOUR
ARGUMENT. IS THAT THE RIGHT LENT OF #250I78 ON P RECORD FOR WHAT YOU CONTEND WAS
CONFINEMENT? DWAS THAN THE THERE A PER OF WAITING AROUND UNTIL THE CONFINEMENT
BEGINS? VALERIA DOMINGUEZ: YES, THERE WAS. SO WE KNOW FROM
THE TESTIMONY THAT THE VICTIM CAME TO THE PORCH FRABL AROUND 2 O'CLOCK. SHE TESTIFIED
THAT SHE PURCHASED FOOD FROM A FAST FOOD RESTAURANT THAT CLOSED AT TWO.
SO IT WAS RIGHT BEFORE 2 O'CLOCK WHERE SHE GOT TO THE PORCH AND THEN WE KNOW FROM
HER OWN TESTIMONY THAT THE FRIEND LEFT TWO TIMES, THE FIRST TIME FOR ABOUT
10 MINUTES AND THE SECOND TIME THE VICTIM ATTEMPTED TO LEAVE AFTER WAITING FOR
30 MINUTES. WE KNOW THAT THERE WAS A PERIOD OF #250I78 WHERE SHE WAS ON
THE PORCH WILLINGLY WOULT BEING CONFINED THAT THE CONFINE. LIKELY BEGAN AROUND
2: 30 TO 2: 40 THIJ KWEE KNOW 2345 HER FRIENDS TESTIFIED THAT SHE SAW THE
VICTIM IN THE STATE THAT SHE WAS IN AFTER IT WAS LIGHT OUT. AND WE KNOW THE OFFICERS
TESTIFIED THAT THEY WERE DISPATCHED TO THE SCENE AT AROUND 6: 30 WHICH IS HOW
WE ESTIMATED THE FOUR TO 5 HOURS. BUT I DO ACKNOWLEDGE AS THE DEFENDANT
NOTES THAT THE LEAD DETECTIVES REPORT HAD THE INCIDENT OCCURRING AT 5: 30 OR ENDING
AT 5: 30 I SHOULD SAY. SO IT IS POSSIBLE THAT THIS ASSAULT WAS 3 HOURS. THESE
ARE ESTIMATES BASED ON WHAT WE HAVE IN THE RECORD. BUT EVEN IF THE CONFINEMENT
LASTED 3 HOURS, WE WOULD STILL BE MAKE CAN THE SAME ARGUMENTS. IT IS STILL
A SUBSTANTIAL A CONFINE MANY FOR A SUBSTANTIAL PERIOD OF TIME.
AND THEN GOING ON TO THE THIRD POINT I HAD WHICH WAS THE THAT THE OUTCOME MAY HAVE
BEEN DIFRP HAD SHE BEEN MOVED, AGAIN, THERE ARE TWO SEPARATE KIDNAPPING SCENARIOS.
AND THEY REQUIRE ONE OF THE OTHER IN ORDER TO SUSTAIN THE CHARGE OR TO WARRANT
THE CHARGE. HERE TO SUGGEST THAT IT MAY HAVE BEEN DIFFERENT HAD SHE BEEN
MOVED REALLY CONSIDER THE FACT THAT UNLAWFUL ^ CON ^ CONNECTICUT FINAL NL ON ITS
OWN SUS TAJTDZ THE KIDNAPPING CHARGE THAT IS A SEPARATE SCENARIO. AND AGAIN,
I WOULD SUGGEST THAT THE FACTS HERE THE VICTIM'S OWN TESTIMONY HERE SUGGESTS THAT
THIS WAS AN ISOLATED LOCATION. WE KNOW THAT IT HAPPENED ON A PORCH OF AN
ABANDONED HOUSE THAT THIS KOIRTD BETWEEN THE HOURS OF TWO TO 6:00 A.M. SO THAT
ALL SUPPORTS THE FACT THAT THIS WAS AN ISOLATED LOCATION AND THE VICTIMS NEED
NOT TO BE MOVED AGAIN A CONFINEMENT THE IS RESTRAINING A PERSON TO WHERE THEY ARE
FOUND. SO REMOVAL IS NOT NECESSARY FOR AN UNLAWFUL CONFINEMENT KIDNAPPING.
CHIEF JUSTICE RABNER: TELL US WHAT FACTORS IN YOUR JUDGMENT
ARE DISTINCT FROM FORCIBLE SEXUAL ASSAULT IN THIS CASE. VALERIA
DOMINGUEZ: I WOULD IN THIS CASE KWEE KNOW THAT SHE WAS INITIALLY STRUCK IN THE
FACE AND THAT SHE DID HAVE EXTENSIVE SHE WAS BLEEDING PROFUSELY FROM THE
FACE AND OFFICERS HAVE TESTIFIED THAT SHE WAS BLEEDING SO FROE FRUS PLEA IT WAS
ACTUALLY DRIPPING FROM HER FACE ONTO HER NECK AND SHE HAD AN OPEN AND SHE ALSO
THE FORCE OF THAT HIT PUSHED HER ONTO A WITH ALL AND SHE HAD A CUT IN THE BACK
OF HER HEAD SO WE DO ALREADY KNOW THAT SHE HAS PRETTY EXTENSIVE POTENTIAL
INJURIES. SHE WAS BLEEDING PROFUSELY SHE HAS A CUT TO HER HEAD AND THEN SHE'S
CONFINED AND PREVENTED FROM SEEKING MEDICAL ATTENTION FOR THOSE INJURIES. AND THEN
WE KNOW SHE TESTIFIED TO ALTHOUGH DEFENDANT WAS ULTIMATELY ACQUITTED OF
THE ROIB SHE TESTIFIED TO THE DEFENDANT KNEELING ON HER ARMS AND TAKING #40DZ FROM
HER AND THEN WE KNOW THAT SHE THEN SAID THE SEXUAL ASSAULTS BEGAN, THAT
SHE WAS INITIALLY FORCED TO PERFORM OSHL SEX ON DEFENDANT AND THEN SHE WAS
VAGINALLY AND ANLLY PENETRATED REPEATEDLY AFRN THAT SHE DESCRIBED IT AS BEING A
CYCLE IN BETWEEN 3 PENETRATIONS. AND THEN WE KNOW THAT THE DEFENDANT INSTRUCTED
HIS FRIEND TO IF HE WANTED TO PENETRATE HER AS WELL TO DO SO WHICH HE DID AND THAT
RESULTED IN HER BEELG ANLLY PENETRATED BY THE CODEFENDANT WHILE FORCED TO
PERFORM ORAL SEX. SO WE KNOW THAT HERE SHE SUFFERED SEPARATE AND DISTINCT
INDIGNITY TEASE SHE SUFFERED REPEATEDLY ANL PENETRATIONS, VAGINAL PENETRATIONS AND
ORAL PENETRATIONS. AND THEN WE KNOW THAT THE DEFENDANT THREATENED HER AT
ONE POINT SAYING THAT HE WOULD COME BACK HE WOULD BECOME HER OPINION P AND COME
BACK FOR HER EVERY NIGHT AND THAT SHE IS SEE WHAT SHE TESTIFIED TO AND FEARED
THAT THAT CAUSED AGAIN SHE TESTIFIED TO THE FEAR THAT THAT HEARING THOSE WORDS
CAUSED HER. SO WE KNOW HERE THAT THERE WERE A NUMBER OF DIFFERENT SEPARATE
HARNLS INFLICTED ON THE VICTIM. AND TO SUGGEST THAT THE ONLY HARM THAT THIS VICTIM
FACED WAS CONTINUED SEXUAL ABUSE DOGS NOT PROPERLY CONSIDER THE FACTS THAT
SHE WAS REPEATEDLY PENETRATED AND THOSE ARE ALL AS THE COURTS HAVE ACKNOWLEDGEED.
JUSTICE TIMPONE: WHY ISN'T THAT JUST AN IN HEERNTD PARTY
DON'T MEAN JUST BUT AN INHERENT PART OF THE SEXUAL ASSAULT AGAINST HER? I DON'T
UNDERSTAND WHY THE KIDNAPPING COMES IN HERE. I THINK WE LOOKED AT THIS
IN BURY IN THE BURY FACTORS, AND IF IT'S NOT AN INHERENT PART OF THE SEXUAL ASSAULT,
KIDNAPPING IS KIND OF REDUNDANT HERE. I MEAN, AND I DON'T SEE KIDNAPPING HERE,
I SEE A PRETTY VIOLENT SEXUAL ASSAULT FOR WHICH HE HAS BEEN CHARGED AND RIGHTFULLY
SO BUT THE KIDNAPPING IS A BIT OF A STRETCH FROM WHERE I SIT.
VALERIA DOMINGUEZ: RESPECTFULLY, YOUR HONOR, I DISAGREE. KIDNAPPING FOR A CONFINE
MANY TO BE FOR A SUBSTANTIAL PERIOD AND THEN TO WARRANT THE SEPARATE
KIDNAPPING CHARGE, THIS COURT IN LA FRANCE SAID YOU HAVE TO LOOK TO SEE WHETHER
THERE IS AN IN HENCEED RISK OF HARJ SEPARATE FROM THE UNDERLYING CRIME AND
HERE WE KNOW THAT SHE WAS SHE FACED REPEATED SEXUAL ASSAULTS. AND THAT THERE IS
A HARM IN EVERY PENETRATION THAT SHE FACED. THERE IS AN ABSOLUTE RISK THAT
INCREASED AND A SEPARATE RISK THAT RESULTS IN BEING FORCED TO PERFORM ANL INTERCOURSE
BEING FORCED INTO VAGINAL INLER COURSE REPEATED ORAL SEX. HER HARM
ABSOLUTELY INCREASED BEYOND THAT WHICH IS NECESSARY. JUSTICE
LAVECCHIA: COUNSEL DOES THE STATE RELY AT ALL ON THE FACT THAT HE CUT OFF HER DRESS
DURING THIS ASSAULT AND NOT ALT THE BEGINNING OF IT BUT LATER DURING THE
EVENT DOES THAT FACTOR INTO THE ANALYSIS THAT YOU BELIEVE WE SHOULD ENGAGE IN?
VALERIA DOMINGUEZ: YES, ABSOLUTELY, YOUR HONOR. BECAUSE
OF COURSE REMOVING A VICTIM'S CLOTHING FOR ANY PURPOSE RENDERS THAT VICTIM VULNERABLE.
MORE VULNERABLE THAN THEY WERE BEFORE. AND THAT IS ABSOLUTELY PART OF THE
ANALYSIS HERE. AND EVEN THOUGH THE APPELLATE DIVISION STATED THAT WE DID NOT
ARGUE THAT THERE IS AN INDEPENDENT PURPOSE ABSENT FOR THE COMMISSION OF THE
SEXUAL ASSAULT, IN REMOVING HER CLOTHING THAT SIMPLY DOESN'T TAKE INTO ACCOUNT
THAT REMOVING A VIMGS' CLOTHING FOR ANY PURPOSE ABSOLUTELY INCREASE GOES
THEIR VULNERABILITY AND THE POTENTIAL FOR HARM. IT MAKES IT HASHD ARE FOR THEM
TO ESCAPE AND ALLOWS FOR ADDITIONAL HARM TO BE IN FLIKSD ON THE VICTIM.
JUSTICE LAVECCHIA: AT WHAT POINT IN TIME WAS THE DRESS CONSULT
OFF? DO YOU KNOW? VALERIA DOMINGUEZ: WE TONE KNOW EXACTLY WHEN
IT WAS CUT OFF BUT SHE DID TESTIFY THAT HE USED THE KNIFE THAT SHE TESTIFIED HE
HELL AGAINST HER NECK IN ORDER TO CUT HER DRESS AND WE DO ALSO KNOW THAT IN THE
DURING THE TRIAL AN OFFICER TESTIFIED THAT THE DRESS WAS IN FACT CUT ALONG THE LENT
OF THE DRESS. WE DON'T KNOW EXACTLY WHEN BASED ON THE TESTIMONY WHEN THAT
OCCURRED. WHEN THE DRIS WAS RIPED. JUSTICE TIMPONE: WASN'T THE REMOVAL
OF THE DRESS ORLT CUTTING OF THE DRESS TO FACILITY THE SEXUAL ASSAULT?
VALERIA DOMINGUEZ: IT CAN BE PART OF FACILITATE GOES THE
SEXUAL ASSAULT BUT IT ABSOLUTELY STAND SHOULD BE CONSIDERED IN THE KIDNAPPING
ANALYSIS. WHEN YOU ARE CONSIDERING WHETHER THE VICTIM FACED AN INCREASED
RISK OF HARM DURING THE CONFINEMENT ABSENT -- JUSTICE
FERNANDEZ-VINA: WOULDN'T IT ALSO IN HIBLT HER ABILITY TO RUN TO GET A WAY?
VALERIA DOMINGUEZ: YES. JUSTICE FERNANDEZ-VINA: WOULDN'T
THAT BE CONSIDERED ALSO. VALERIA DOMINGUEZ: YES ABSOLUTELY,
YOUR HONOR. COMPLETELY AGREE WITH THAT. SO NOT ONLY DOGS IT FACILITATE
THE XHITHS OF THE UNDERLYING SEXUAL ASSAULT BUT IT DOES IT MRAKS HER MORE
VULNERABLE BECAUSE SHE IS UNLIKELY TO ESCAPE YOU KNOW BEING WITHOUT
CLOTHING. SO IT ABSOLUTELY SHOULD STILL FWEE A FACTOR IN THE KIDNAPPING ANALYSIS.
CHIEF JUSTICE RABNER: IS THERE ANYTHING YOU WOULD LIKE TO
ADD? VALERIA DOMINGUEZ: SO THE THREE MAIN POINTS WOULD BE
THAT HERE IT IS OUR POSITION THAT THIS CONFINEMENT WAS NOT MERELY INCIDENTAL TO
THE UNDERLYING SEXUAL ASSAULT, BUT PARTICULARLY IN LIGHT OF EVERYTHING
THAT THE VIRM TESTIFIED TO AND THAT NEEDS TO BE CONSIDERED EVEN THOUGH THAT SHE
WAS EVEN IN HER TESTIMONY SHOULD BE CONSIDERED AS TO ALL THE SEPARATE
SEXUAL ACTS THAT SHE ENDURED DURING THIS TIME. AND WE DISAGREE WITH THE APPELLATE
DIVISIONS CHARACTERIZATION OF THIS BEING ONE SINGLE CONTINUOUS SEXUAL ASSAULT.
IT IS NOT SPOERTDED BY THE FACT AND IT DOESN'T TAKE INTO ACCOUNT THE SEPARATE
HARM THAT EXISTS WHEN YOU ARE FORCED INTO PERFORMING DIFFERENT SEXUAL ACTS. AND
THAT WE WOULD DISAGREE WITH THE ANALYSIS THAT THERE NEEDED TO BE AN
INTERRUPTION IN THE UNDERLYING ASSAULT IN ORDER TO WARRANT A KIDNAPPING CHARGE.
IT IS NOT CLEAR WHAT THAT WHAT WOULD CONSTITUTE AN INTERRUPTION AND IT
POTENTIALLY LEADS AS YOUR HONOR RECOGNIZED POTENTIALLY AB SURD RESULTS AND THEN
LASTLY, THAT THE FACT THAT SHE WASN'T REMOVED SHOULD NOT PREVENT THE STATE FROM
BEING ABLE TO CHARGE A KIDNAPPING IN THIS CASE BECAUSE OF WHAT THE KIDNAPPING
BASED ON THE UNLAWFUL CONFINEMENT. AND THEN WE WOULD JUST ASK THE COURT TO AGAIN
I RESPECTFULLY ASK THE COURT TO REVERSE THE DISTINCTION OF THE APPELLATE
DIVISION AND REINSTATE DEFENDANT'S KIDNAPPING CONVICTION.
CHIEF JUSTICE RABNER: THANK YOU MISS DOME MISS BLOOM TEST TEST
CHIEF JUSTICE RABNER: MISS BRUM? RESPONDENT: I WOULD HAVE TO
ASK THE COURT TO LOOK AT WHAT THE APPELLATE DIVISION SAID BECAUSE I
THINK THEY SUMMARIZED THE FACT ACCURATELY WHEN THEY SAID THIS WAS A SINGLE COURSE
OF UNINTERRUPTED CONDUCT. THE CRIMINAL CONDUCT MAY HAVE TAKEN ON BOTH CHAPTER
12 AND CHAPTER 14 ASSAULTS, BUT THERE WAS NO DELINEATED BREAK OR STOP IN THIS
COURSE OF CONDUCT. THE CRITICAL ASSESSMENT FOR KIDNAPPING IS WHETHER THE
DEFENDANT WAS HOLDING THE VICTIM FOR ANY REASON OTHER THAN TO COMMIT THE
UNDERLYING OFFENSE AND THERE WAS NO POINT AT WHICH SHE WASN'T HELD, FORCED OR
THREATENED, EXCEPT TO COMMIT THE UNDERLYING OFFENSE. THE OFFENSES
HERE WERE HORRIBLE, THIS WAS A NIGHT MAYOR, BUT THAT DOESN'T ALTER THE FACT THAT
WHAT HE DID WAS ASSAULT HER, THERE WAS NO TIME WHEN SHE WAS BEING HELD THAT
SHE WASN'T ALSO BEING EITHER PHYSICALLY ASSAULTED OR EXALTED.
JUSTICE ALBIN: CAN I STOP YOU THERE, I'M LOOKING AT THE STATUTE WHICH SEEMS TO
SAY PRECISELY THE OPPOSITE OF WHAT YOU SAID, 13.1 SESSION IF HE UNLAWFUL
CONFINES ANOTHER FOR A SUBSTANTIAL PERIOD WITH THE FOLLOWING PURPOSE, ONE OF THEM
IS TO COMMIT A SEXUAL ASSAULT, THAT'S A KIDNAPPING RPGS IT DOESN'T HAVE TO BE
FOR ANOTHER PURPOSE, THE PURPOSE HERE OF THE CONFINEMENT WAS TO SUBMIT A
SEXUAL ASSAULT, WHY DOES IT HAVE TO BE SOMETHING ELSE IN THE MIX.
RESPONDENT: I'M NOT ARGUING SOMETHING ELSE, I'M SAYING THE STATUTE WOULD OVERRUN
ALL OF THE SUBS STIFF OFFENSES IF IT WAS INTERPRETED LITERALLY AND IT NEVER
HAS, THE COURT HAS INTERPRETED IT NORTHBOUND TO NARROW IT SO THAT KIDNAPPING SDNTSDZ
SUBSUME THE UNDERLYING OFFENSES AND THE WAY IT HAS ALWAYS BEEN INTERPRETED
IF YOU AVOID THAT ABSURD OVER READING OF IT IS THAT THERE HAS TO BE A REASON OTHER
THAN TO FACILITATE THE UNDERLYING OFFENSE. JUSTICE ALBIN:
TELL ME IF I'M MISTAKEN, THE REASON WHY THIS COURT HAS USED THE ENHANCED RISK OF
HARM OR INCIDENTAL TO IS WHEN THE PERIOD OF THE CRIME IS VERY SHORT, IS
A VERY SMALL PERIOD OF TIME, THE COURT HAS NEVER DEALT WITH A CONTINUOUS COMMISSION
OF CRIMES OVER A 5 HOUR PERIOD OR THREE HOUR PERIOD AND NOT CONSIDERED THAT
TO BE A SUBSTANTIAL PERIOD, OR AT LEAST A SUBSTANTIAL PERIOD SO THAT IT WOULD GO
TO THE JURY FOR ITS DECISION. AM I OFF THE BAT? RESPONDENT:
I AGREE WITH YOUR HONOR THAT THERE HAS A FINITE AMOUNT OF TIME THAT HAS BEEN APPLIED
IN ORDER TO DETERMINE WHETHER THE CONFINEMENT WAS SUBSTANTIAL AND IT IS
NECESSARY FOR SOMEBODY TO HOLD SOMEBODY -- HOLD THE VICTIM FOR A SUBSTANTIAL PERIOD OF
TIME TO EVEN MAKE THE THRESHOLD OF KIDNAPPING. BUT THAT'S NOT SUFFICIENT
TO DETERMINE KIDNAPPING. WHAT YOU ALSO NEED IS TO SHOW THAT IT WAS SOMETHING OVER
AND ABOVE THE HOLDING, THE CONFINEMENT, IN ORDER TO COMMIT THE UNDERLYING
OFFENSE. AND THERE IS NO DELIBERATED BREAK HERE AT WHICH TIME THE VICTIM WAS BEING
HELD FOR ANY REASON OTHER THAN THE CONTINUING SERIES OF ASSAULTS.
JUSTICE ALBIN: SO YOU'RE TELLING US THAT IF SOMEONE CONTINUOUSLY ASSAULTS
A PERSON OVER A PERIOD OF 10 HOURS, NONSTOP, NO BREAK, NO INTERRUPTION, THAT'S
NOT GOING TO BE A SUBSTANTIAL PERIOD FOR PURPOSES OF 13-1.
RESPONDENT: I'M AGREEING WITH YOUR HONOR THAT THE WORD SUBSTANTIAL PERIOD ARE
SATISFIED, I'M SAYING THAT'S NECESSARY EVEN TO GET IT TO THE KIDNAPPING THRESHOLD,
BUT IT'S NOT SUFFICIENT, YOU NEED THE ADDITIONAL FACTOR OF WHETHER THEY WERE BEING
HELD FOR SOME REASON OTHER THAN TO COMMIT THE OFFENSE. JUSTICE
ALBIN: WHERE IS THAT IN THE STATUTE, I'M LOOKING FOR THAT, WHERE IS THAT, SHOW
ME. RESPONDENT: YOUR HONOR, IT IS NOT SPELLED OUT IN THE
STATUTE, IT IS THE WAY THE COURT HAS BEEN CONSTRUING IT SO THAT THE KIDNAPPING
OFFENSE DOESN'T OEFR RUN ALL OF THE OTHER OFFENSES. IF YOU'RE GO BEING TO
DRAW SOME LINE AT SOME POINTER, EVERY ROBBERY ESSENTIALLY REQUIRES A CONFINEMENT,
EFR RAPE REQUIRES A CONFINEMENT, I SUGGEST EVERY HOMICIDE REQUIRES A CONFINEMENT,
SO THE COURT HAS ALWAYS LOOKED FOR SOME CONFINEMENT BEYOND WHAT WAS NECESSARY IN THE
UNDERLYING OFFENSE AND THAT'S WHAT'S MISSING HERE. I WOULD ALSO DISAGREE
WITH WHAT'S BEEN SAID EARLIER ABOUT THE ISOLATION, THE DEFENDANT NEVER ISOLATED
THE VICTIM, HE CONFINED HER ON A PORCH THAT WAS IN PUBLIC VIEW, WHETHER SLED
CLOTHING ON OR SHE DIDN'T HAVE CLOTHING ON SHE WAS IN PUBLIC VIEW FROM THE MOMENT
SHE WENT ON THE PORCH, SHE'S THE ONE WHO SAID SHE SAW, MISS M IS THE ONE WHO
SAID SHE SAW HER FRIEND AND STOO MEN ON THE PORCH AND THEN SHE SUMMONED HER OWN
FRIEND WHO PASSED BY TWO HOURS LATER AND HELPED HER ESCAPE, SHE WAS IN PUBLIC YOU BE
VIEW THE WHOLE TIME, THE STREET WAS KNOWN FOR PROSTITUTION TRAFFICING, SHE
SAID THERE WAS A BOW DAY GA IMMEDIATELY NEXT DOOR, SHE WAS IN PUBLIC VIEW, THIS
WAS NOT ISOLATED, AND IT HAS NOTHING TO DO WITH WHETHER SHE WAS MOVED, THE
ONLY REASON THE APPELLATE DIVISION REFERRED TO MOVING WAS THAT THEY HYPOTHESIZED
THAT IF HE HAD MOVED HER INTO THE HOUSE THEN SHE WOULD HAVE BEEN OUT OF
PUBLIC VIEW, SHE WOULD HAVE BEEN ISOLATED. BUT THIS OFFENSE WAS COMMITTED FROM
START TO FINISH IN PUBLIC VIEW. AND THE OTHER ASPECT THAT I WANTED TO
EMPHASIZE IS THAT THERE WAS NO DELINEATED BREAK, THAT THIS WAS A CONTINUING COURSE
OF EVENTS. THERE WAS NOTHING DESPERATE ABOUT THIS THAT CONVERTED IT FROM THE
HOLDING HER FOR THE ASSAULT INTO THE KIDNAPPING. WE HAVE ALWAYS LOOKED AT
KIDNAPPING AS SOMETHING OVER AND ABOVE THE UNDERLYING OFFENSE, AND THERE WAS NO
POINT AT WHICH THE THREAT OF FORCE OR THE ACTUAL FORCE THAT WAS BEING SUPPLIED
AGAINST HER WASN'T IN SERVICE OF COMMITTING ONE OF THESE HORRIBLE OFFENSES.
JUSTICE SOLOMON: BUT THE JURY WAS ASKED THAT SPECIFIC QUESTION,
WHETHER IT WAS IN HEARING THE UNDERLYING OFFENSE OR SEPARATE AND APART FROM, HELD
AT 95 POINT, ASSAULTED, PHYSICALLY, NOT SEXUALLY SPECIFICALLY, BUT PHYSICALLY
ASSAULTED AND SKULTED OVER A LONG PERIOD OF TIME AND THE JURY WAS ASKED THAT
SPECIFIC QUESTION AND CHARGED NOT ADHERING TO ACCOUNT SEPARATE OFFENSE, THE
CONFINEMENT INDEPENDENT OF THAT POSED BY THE SEPARATE OFFENSE, AND THEY HEARD ALL
THE EVIDENCE, THE 95, THE PUNCHING IN THE FACE, THE CUTTING HER DRESS OFF
WITH THE 95, THE REPEATED SKAULTS, THE TWO AND A HALF TO 4 HOURS, THEY HEARD ALL
THAT AND DECIDED THAT WAS SEPARATE IN ADDITION TO AND INDEPENDENT OF THE
SEXUAL ASSAULT. NOW YOU WANT US TO OVERTURN THAT FINDING BY THE JURY AFTER ALL
THE EVIDENCE THAT THEY HEARD. THAT'S, ISN'T THAT WRONG, IT'S NEVER BEEN DONE
BEFORE IN A KIDNAPPING CASE STT. RESPONDENT: TECHNICALLY YOUR HONOR
THIS IS REALLY AN APPEAL FROM THE DENIAL OF THE MOTION FOR JUDGEMENT OF
ACQUITTAL AT THE POINT THAT THE STATE RESTED, SO THAT'S WHAT WE'RE APPEALING, THAT
THE COURT AS THE GATEKEEPER WAS SUPPOSED TO APPLY THE MEANING OF KIDNAPPING
TO SEE IF THERE WAS SOMETHING OVER AND ABOVE THE FORCE USED TO HOLD HER, WHETHER
IT WOULD BE ACCIDENT OCCUR 55 GETTING TO THE JURY, SO, YES, THE --
JUSTICE SOLOMON: BUT THE APPELLATE DIVISION DECIDED THAT ISSUE BASED UPON NO
SEPARATION, NO BREAK, NO REMOVAL, THE THINGS THAT I'M SUGGESTING TO YOU AREN'T
CONSISTENT WITH WHAT THE EVIDENCE WAS, WHAT THE JURY CONSIDERED AND WHAT
THE JURY DECIDED. RESPONDENT: WELL, IT IS NOT INSIST R
INCONSISTENT WITH THE EVIDENCE, I WOULD RESPECTFULLY DISAGREE WITH RESPECT TO
A BREAK. BECAUSE THE STATE GETS THE INFERENCE FROM ITS WITNESS AND EVERYTHING SHE
SAID, SHE IS ESSENTIALLY THE ONLY ONE WHO TOLD US WHAT WENT ON AND SHE EXPLAINED
THAT THIS WAS A CONTINUOUS OFFENSE, THERE WAS NO TIME WHEN SHE STOPPED, THERE WAS
A BREAK, HE HELD ME, BUT HE DIDN'T ASSAULT ME. JUSTICE SOLOMON:
SO WHEN JUSTICE ALBIN SAID SOMEBODY IN THIS POSITION PUNCHED AT 95 POINT, CUTOFF
HER DRESS AND REPEATEDLY EXALTED BY TWO PEOPLE FOR WHAT, 5 HOURS, 6 HOURS,
24 HOURS? RESPONDENT: A LENGTHY PERIOD. JUSTICE
SOLOMON: PARDON ME. RESPONDENT: A LENGTHY PERIOD.
JUSTICE SOLOMON: WELL THIS WAS ABOUT AS LONG -- THIS COURT HAS FOUND A HALF
AN HOUR WAS LONG ENOUGH, WE KNOW IT WAS A LOT LONGER THAN THAT, IT WAS AT LEAST
2 AND A HALF, MAY HAVE BEEN 5. IT WAS A LONG TIME. RESPONDENT:
THE DURATION ITSELF IS NOT -- I'M SORRY, YOUR HONOR, I THOUGHT YOU WERE DONE.
JUSTICE SOLOMON: I AM DONE. RESPONDENT: OKAY,
THE DURATION ITSELF IS NOT DESPOSITIVE WHAT HAS ALWAYS BEEN KEY IS WHETHER THE
HOLDING WAS FOR SOMETHING OVER AND ABOVE THE ACTUAL COMMISSION OF THE
UNDERLYING OFFENSE, THAT'S WHAT KIDNAPPING IS TRIGGERED, KIDNAPPING ISN'T THE HOLDING
-- JUSTICE SOLOMON: THAT'S NOT WHAT THE STATUTE SAYS.
RESPONDENT: BUT THAT'S HOW IT'S ALWAYS BEEN CONSTRUED BECAUSE OTHERWISE
IT WOULD SUBSUME THE UNDERLYING OFFENSES. JUSTICE SOLOMON:
ISN'T THAT WHY THE JURY IS ASKED THAT QUESTION? THE JURY IS SPECIFICALLY ASKED
IN THE LIGHT OF ALL THE EVIDENCE, WAS THE CONFINEMENT A SEPARATE THING,
AND THERE'S A LOT OF EVIDENCE THAT A LOT OF STUFF WAS GOING ON BESIDES SEXUAL ASSAULT
FOR A PRETTY LONG PERIOD OF TIME AND THE JURY SAID YEAH AND THE APPELLATE
DIVISION SAID NOTWITHSTANDING WHAT THAT EVIDENCE WAS, THE QUESTION WAS PUT TO THE
JURY, NOTWITHSTANDING WHAT THAT EVIDENCE WAS YOU NEED A BREAK IN TIME OF
GOD KNOWS WHAT LENGTH, MAYBE IT WAS A MINUTE, 5, HALF AN HOUR, YOU NEED A BREAK
IN TIME, YOU NEED A REMOVAL, YOU NEED CONDITIONS THAT THE STATUTE DOESN'T
PROVIDE FOR AND THAT NO CASE LAW SAYS YOU HAVE TO HAVE. RESPONDENT:
THERE IS NO CASE LAW THAT TALKS ABOUT A BREESHGS WHAT THE CASE LAW TALKS ABOUT WAS
WERE YOU HOLDING THE PERSON FOR ANYTHING OTHER THAN THE COMMISSION OF THE
UNDERLYING OFFENSES AND BASED ON MISS M'S OWN TESTIMONY THIS WAS JUST A CONTINUOUS
SEAR RISES OF SAULTS. INITIALLY IT TOOK ON AN A NON SEXUAL ASSAULT, HE
PUNCHED HOER, BUT THEN WITHOUT DELAY HE WENT INTO THE SEXUAL ASSAULT, TLA NO TIME
WHEN SHE WAS BEING HELD THAT SHE WASN'T BEING ASSAULTED.
JUSTICE ALBIN: WHERE IS THIS OTHER THAN LANGUAGE THAT YOU KEEP ON REFERRING TO?
RESPONDENT: YOUR HONOR, I AGREE IT IS NOT LITERALLY VERBATIM
IN THE STATUTE, IT'S THE WAY THIS COURT AND OTHER COURTS HAVE BEEN CONSTRUING IT.
JUSTICE ALBIN: WHERE DID YOU LIVE WE EVER SAID USING OTHER
THAN, OTHER THAN FOR THE PURPOSES OF COMMITTING THE OFFENSE, WHERE IS THAT.
RESPONDENT: THAT THERE HAS TO BE AN ENHANCED HARM BEYOND --
JUSTICE ALBIN: THAT'S DIFFERENT, THAT'S DIFFERENT, RAPING SOMEONE FOR 5 HOURS
A JURY MIGHT DECIDE THAT'S ENHANCED HARM, PUNCHTH SOMEBODY IN THE FACE,
PERMITTING SOMEONE TO ANALLY PENETRATE, THAT'S DIFFERENT FROM THE UNDERLYING OFFENSE.
RESPONDENT: THE SEVERITY OF THE ASSAULT UNDER THE CODE
DETERMINES THE DEGREE OF THE OFFENSE, THE SEVERITY OF THE ASSAULT DOES NOT CONVERT
A SEXUAL ASSAULT INTO A KID YAPPING. WHAT I THINK THE STATE IS LOOKING
FOR WHEN IT GETS REALLY BAD BECAUSE IT GOES ON FOR AWHILE SOMEHOW THAT CONVERTS
A SEXUAL ASSAULT, A LONG TIME ONGOING SEXUAL ASSAULT INTO A KIDNAPPING.
JUSTICE FERNANDEZ-VINA: MISS BLUM, IN A CAR JACKING FOR ROBBERY AND
THE PERSON IS TAKEN IN THE CAR AND THEY'RE IN THE CAR, COULD THAT BE KIDNAPPING
THERE, BECAUSE THE CAR JACKING WAS FOR THE PURPOSE OF STEALING THE CAR AND
WHATEVER THE PERSON HAD IN IT, BUT THEY WENT ACROSS STATE LINES OR THEY WENT TO
NORTH JERSEY AND THEY HELD THE PERSON IN THE CAR FOR THE WHOLE PERIOD OF TIME,
UNDER YOUR THEORY YOU COULD NEVER HAVE KIDNAPPING IN THERE BECAUSE THE INTENT WAS
TO KAUR JACK AND STEEL THE MOENL. RESPONDENT: CROSSING STATE
LINES -- JUSTICE FERNANDEZ-VINA: FORGET THE STATE
LINES, I WENT TOO FAR, STAY IN NEW JERSEY, WE'RE QUARANTINED SO SAY STAY IN NEW JERSEY.
RESPONDENT: OKAY. I HADN'T CONSIDERED IT BUT ON THE PRINCIPAL
THAT IF THE VICTIM WAS BEING HELD ONLY FOR THE PURPOSE OF THE CAR JACKING, THEN
I'M NOT SURE I SEE HOW YOU CAN COULD THIS VERT A CAR JACKING INTO A KIDNAPPING.
JUSTICE FERNANDEZ-VINA: EVEN THOUGH THEY'RE HELD IN THE
CAR FOR HOURS WHILE THEY'RE DRIVING IN NORTH JERSEY, ALLUDING THE POLICE, IT STILL
WOULDN'T BE A KIDNAPPING UNDER YOUR INTERPRETATION.
RESPONDENT: IT WAS PRIMARILY FOR THE PURPOSE OF THE CAR JACKING, THIS WAS ENTIRELY
FOR THE MURPS OF COMMITTING THE ASSAULT, THEN THERE WAS NOTHING THAT CONVERTED
THIS INTO A KIDNAPPING. WHAT THE COURT HAS SAID AND THIS IS MAYBE GOING BACK TO
WHAT JUSTICE ALBIN WAS SAYING, THE ASSAULTS, THE ONLY WAY THE COURT HAS
BEEN FINDING KIDNAPPING IS IF THERE WAS AN ADDITIONAL HARM BEYOND THE ACTUAL ASSAULT
AND THERE WERE ROBBERY CASES WHERE THEY SAID HOLDING THE PERSON IN THE HOUSE
OR EVEN TYING UP THE PERSON DURING THE COURSE OF THE ROBBERY, WHICH OBVIOUSLY IS
A CONFINEMENT, IS NOT WHAT CONVERTED THE RON RE INTO A KIDNAPPING, IT WAS
LEAVING THE PEOPLE AFTERWARDS REMAINING CONFINED AFTER THE ROBBERY WAS OVER AND
THE THIEF LEFT, OR CONFINING IN ONE CASE I THINK IT WAS LAFRANCE WHERE THE VICTIM
WAS BOTH ROBBED AND RAPED, IT WASN'T THAT BOTH OFFENSES WERE COMMITTED AGAINST
THE VICTIM THAT CONVERTED IT INTO A KIDNAPPING, IT WAS THAT THE VICTIM'S HUSBAND
WAS TIED UP, THAT FORCED HIM TO BE FURTHER ISOLATED, SEE THERE WAS ALWAYS
SOMETHING MORE THAN THE UNDERLYING HOLDING FOR THE COMMISSION OF THE OFFENSE.
IT IS TRUE THAT I CAN'T THINK OF A CASE THAT THE ABSOLUTE DURATION WAS
NECESSARILY AS LONG AS THIS CASE, BUT THE DURATION ITSELF HAS NEVER BEEN THE REASON
TO CONVERT WHAT IS A SUBSTANTIVE CRIMINAL OFFENSE INTO A KIDNAPPING. AND IF I
MAY I WOULD ALSO WANT TO POINTER TO THE HOLDING IN THE NIGHT, THAT MAY SOUND LIKE
IT DOESN'T HELP ME BUT I WOULD LIKE TO POIRNT OUT THAT THE VICTIM'S OWN TESTIMONY
WAS SHE SAID I STAYED THERE BECAUSE HE PUT A 95 ON ME, THE HOLDING WITH
THE 95 WAS FOR THE POINT OF FORCING ERR HER TO SUBMIT TO THE OFFENSE, THE DRESS
IS A RED HERRING. JUSTICE FERNANDEZ-VINA: WASN'T IT ALSO
TO FORCE HER TO STAY THERE, HE POINTED THE 95 SO SHE WONDER LEAVE BEFORE
THE ASSAULT BEGAN, THAT'S HOW I READ IT, MAYBE I READ IT WRONG.
RESPONDENT: THE FACTS ARE IF YOU LOOK AT PAGE 128 OF THE JULY 282016 TRANSCRIPT
THAT'S WHERE THE VICTIM'S TESTIMONY STARTS TALKING ABOUT THE DETAILS OF THE
OFFENSE AND SHE SAYS ON LINE 8 THE PROSECUTOR ASKS HER UPPER FORCESED Z TO PERFORM
SEXUAL ABILITIES AND HER ANSWER IS AND I QUOTE HE HAD A 95 TO ME AND IT GOES ON
LIKE THAT, SHE SAYS WHEN DID HE TAKE OUT THE 95 AND THE VICTIM SAYS AFTER
I START MOVING AROUND AND FIRST SHE SAYS I WAS ON MY KNEES TO PERFORM THE INITIAL
ACT OF ORAL SEX AND THEN SHE SAYS AFTER I START MOVING AROUND AND TRYING
TO GET AWAY I KEPT SAYING NO, I DON'T WANT TO DO THIS AND THAT'S WHEN THE 95 CAME
OUT. JUSTICE FERNANDEZ-VINA: DOESN'T THAT SUPPORT
WHAT I JUST ASKED YOU, THE 95 WAS USED TO PREVENT HER FROM RUNNING AWAY, NOT TO
FACILITATE THE SEXUAL ABILITY. RESPONDENT: NO I THINK IT'S
THE OPPOSITE. JUSTICE FERNANDEZ-VINA: I READ THE SAME
THING YOU READ BUT MY TAKE IS DIFFERENT THAN YOURS. RESPONDENT: THE
VICTIM SAID SHE TRIED TO RESIST SUBMITTING TO THE SEXUAL ACT BUT HE BROUGHT OUT
A 95 SO I SUBMITTED FISHGS THAT'S NOT WHAT YOU READ, THAT'S YOUR INTERPRETATION.
RESPONDENT: SHE SAID I WAS ON MY KNEES SHS IMMEDIATELY BEFORE
THAT SHE SAYS I WAS ON MY KNEES IN ORDER TO COMMENCE GIVING HIM ORAL SEX VMENTS
I'M SORRY TO HAVE TO INDULGE IN THIS, IT'S AWNING COMFORTABLE DISCUSSING
IT BUT IT'S ESSENTIAL FOR EXPLAINING THE OFFENSE, SHE SAYS THAT'S HOW THE SEXUAL
EPISODE STARTED, THE DEFENDANT MADE HER GET ON HER KNEES IN FRONT OF HIM TO
COMMIT THE ORAL SEX AND SHE SAID -- AND IN FACT THE PROSECUTOR DESCRIBED IT AS
YOU TRANSCRIBED TO WRIGGLE AWAY AND HER ANSWER WAS HE HELD A 95 TO ME THAT'S WHY
I STAYED, IT'S ALMOST IMPOSSIBLE TO DISTINGUISH BETWEEN HOLDING THE 95 ON
HER TO MAKE HER COMMIT THE SEXUAL OFFENSE AND HOLDING HER THERE JUST TO HOLD HER.
JUSTICE FERNANDEZ-VINA: DOESN'T THE STATE GET THE BENEFIT
OF EVERY DOUBT OF THAT TESTIMONY? DOESN'T THE STATE GET THE BENEFIT?
RESPONDENT: I DON'T SEE ANY DOUBT THAT HE WAS HOLDING HER BUT TO COMMIT THE
SEXUAL OFFENSE, THERE WAS NO POINT, HE DIDN'T HOLD HER FOR A MOMENT BEYOND THE
COMMISSION OF THE ASSAULTS, HE DIDN'T -- IT WAS NO DELINEATED POINT WHERE
HE SAID -- WHERE SHE DESCRIBED, SHE DESCRIBED AN ONGOING EVENT, AND I'M USING THE
WORD UNINTERRUPTED -- JUSTICE FERNANDEZ-VINA: MA'AM, WE
RESPECTFULLY DISAGREE, MAYBE SOMEBODY ELSE HAS A QUESTION, WE RESPECTFULLY
DISAGREE ON THE READING OF THE TRANSCRIPT. RESPONDENT: OKAY,
IF I MAY JUST RETURN TO THE IDEA THAT SHE WAS ISOLATED. SHE WAS IN PUBLIC VIEW
THE WHOLE TIME, SHE DESCRIBED HERSELF AS HAVING SEEN WHAT WAS GOING ON ON THE
PORCH WHICH IS WHY SHE JOINED THEM AND IT WAS TWO O'CLOCK IN THE MORNING SO THERE WAS
ENOUGH LIGHT FOR HER TO SEE THINGS AT THAT HOUR AND SHE DIDN'T JUST SEE
SHADOWS SHE SAW HER FRIEND AND TWO MEN AND THEN HER OWN FRIEND SAW HER LATER AND
MADE HER OUT, COULD SEE SHE WAS IN DISTRESS AND ASKING FOR ASSISTANCE,
YOU'RE NOT ISOLATED WHEN PEOPLE SEE YOU AS THEY PASS BY, SO --
JUSTICE ALBIN: WOOISHLD THAT MAKE A DIFFERENCE? IF SOMEONE IS TIED TO A POLE IN
THEIR BACKYARD AND NEIGHBORS CAN SEE THE PERSON AND THE PERSON IS HELD THERE
FOR A PERIOD OF 24 HOURS, ARE YOU GOING TO SAY THAT THAT PERSON IS NOT KIDNAPED,
THAT THAT DOESN'T CONSTITUTE A SUBSTANTIAL PERIOD? WHY WOULD IT MAKE A
DIFFERENCE? UNDER CERTAIN CIRCUMSTANCES WHY WOULD THAT MAKE A DIFFERENCE?
RESPONDENT: THERE'S A DIFFERENCE BETWEEN SUBSTANTIAL PERIOD AND ISOLATION.
THE COURT HAS TOLD US THAT ISOLATION INCREASES THE RISK OF HARM. MY POINT
STREET THERE WAS NO ISOLATION AND THAT THE RISK OF HARM WAS NOT INCREASED. IF SHE WAS
IN PUBLIC VIEW THE WHOLE TIME. IF YOU'RE OUT IN PUBLIC THE DEFENDANT MAY BE ABLE
TO PUT GREATER HARM ON HER. IN THIS INSTANCE SHE DIDN'T LEAVE BECAUSE OF
THE 95 BUT THE ISOLATION WAS NOT INCREASED, TAKING OFF HER DRESS REALLY WAS NOT
THE REASON THAT SHE STAYED, SHE MADE THAT CLEAR, SHE WAS ALREADY BEING HELD
WITH THE 95 AND THE 95 WAS BROUGHT OUT SOLELY FOR THE PURPOSE OF HOLDING HER.
JUSTICE ALBIN: I DON'T THINK IT'S GOING TO REALLY MAKE A BIG
DIFFERENCE TO THE VICTIM IF SHE'S RAPED FOR 5 HOURS ON A PORCH AT DUSK OR WHEN
IT'S DARK OR IN A ROOM. MAYBE SHE'S MORE ISOLATED IN THE ROOM, BUT IN TERMS
OF THE NATURE OF THE OFFENSES, THAT DOESN'T SEEM TO BE A BIG DISTINGUISHING POINT.
RESPONDENT: AND THE DEFENDANT WOULD BE GUILTY OF SEXUAL
ASSAULT, WOULD BE CONVICTED OF SEXUAL ASSAULT, IT'S JUST THAT THE ADDITIONAL CRIME
OF KIDNAPPING WAS NOT MADE OUT UNDER THOSE CIRCUMSTANCES. AND THE COURT
HAS YET TO SAY THAT THE ABSOLUTE DURATION CONVERTS WHAT IS A SEXUAL ASSAULT INTO
A KIDNAPPING. THESE ARE UNUSUAL FACTS BUT THEY'RE NOT FACTS THAT THE DEFINITION
OF THE TERM OF KIDNAPPING. THE HOLDING, THE DETENTION, WAS I KNOW DIVISIBLE FROM
THE UNDERLYING SUBSTANTIVE OFFENSES, THERE WAS NOTHING THAT ADDED TO WHAT
WENT ON THAT MADE IT, THAT CONVERTED WHAT WAS A PROLONGED SEXUAL OI FENCE, A PROLONGED
NASTY SEXUAL OFFENSE INTO A KIDNAPPING. UNLESS THE COURT
HAS ANY OTHER QUESTIONS? CHIEF JUSTICE RABNER: THANK YOU MISS BRUM,
MISS DOMINGUEZ, DID YOU WANT TO OFFER REBUTTAL? APPELLANT:
CAN YOU HEAR ME? CHIEF JUSTICE RABNER: YES.
APPELLANT: OKAY. JUST VERY BRIEFLY, YOUR HONOR, 3 QUICK POINTS. I DID -- I FAILED
TO MENTION THAT THE LENGTH OF TIME IS ABSOLUTELY STILL A FACTOR, WHILE IT'S
NOT THE SOLE DETERMINATIVE FACTOR IT SHOULD BE CONSIDERED AND IT STILL IS, AS THIS
COURT ACKNOWLEDGED IN LAFRANCE THAT YOU CONSIDER NOT ONLY THE DURATION BUT
THE ENHANCED RISK OF HARM AND WE WOULD SUGGEST THAT THE APPELLATE DIVISION HERE
DID NOT PROPERLY CONSIDER HOW LONG THIS CONFINEMENT WAS AND THE IMPORTANCE
AND WEIGHT OF THAT. SECOND, AGAIN, JUST REITERATING THAT IT'S
NEVER BEEN APART OF THE CASE LAW FOR KIDNAPPING THAT THERE NEEDS TO BE APP. DELINEATED
BREAK, AN INTERRUPTION, AND AGAIN, AS I ARGUED EARLIER, IT JUST LEADS TO
POTENTIALLY ABSURD RESULTS AND IT'S NOT CLEAR WHAT WOULD EVEN CONSTITUTE A BREAK,
WHEN THAT WOULD BE MET. AND EVEN BASED ON THESE FACTS, WE ARGUE THAT THERE
ABSOLUTELY NEEDS -- IT'S IMPOSSIBLE FOR THIS TO HAVE HAPPENED AS THE VICTIM TESTIFIED
IT DID FOR AS LONG AS IT DID WITHOUT THERE HAVING BEEN ANY BREAKS. IF NOTHING
ELSE FROM MOVING FROM PHYSICALLY ASSAULTING HER TO THEN STARTING TO
SEXUALLY ASSAULT HER AND ENGAGE IN ALL OF THOSE SEXUAL ACTS THAT HE INFLICTED ON
HER. AND THEN LASTLY THE TESTIMONY AS TO THE 95, KNIFE, THE
KNIFE IS THE NO NECESSARY IN ORDER THOM COMMIT A SEXUAL ASSAULT, SO TO SUGGEST
THAT THE KNIFE WAS TAKEN OUT TO SEXUALLY ASSAULT THE VICTIM IT'S NOT SUPPORTED
BY WHAT THE VICTIM TESTIFIED TO. AND YOU DON'T NEED A KNIFE IN ORDER TO SEXUALLY
ASSAULT, THAT'S A SEPARATE THING, IT'S SEPARATE FROM THE SEXUAL ASSAULT,
THAT'S A SEPARATE HARM IN AND OF ITSELF. AND THEN JUST WE WOULD ASK AGAIN THAT
THE COURT -- RESPECTFULLY ASK THE COURT TO REVERSE THE DECISION OF THE APPELLATE
DIVISION AND READ AND SIGN STRAIGHT DEFENDANT'S KIDNAPPING CONVICTION.
CHIEF JUSTICE RABNER: THANK YOU, COUNSEL, WE'LL TAKE IT UNDER
THE MATTER UNDER ADVISEMENT. CHIEF JUSTICE RABNER: IN THE MATTER OF
BANK LEUMI U.S.A. VERSUS EDWARD JUDGE CLOS CAN WIE PLEASE HAVE APPEARANCES
OF COUNSEL? JORDAN D. WEINREICH: GOOD AFTERNOON YOUR
HONOR. JORDZ AND WINE RIFRP FROM THE FOIFRNL SHERMAN WELLS VILS AND SAIL MANL
APPEARING ON BEHALF OF PLAINTIFF BANK LEUMI U.S.A. PETER R. BRAY:
PETER ARE BRA BE AS IN BOY R A WHY, FOR CLOS AND CLOS AND COMPANY.
CHIEF JUSTICE RABNER: WELCOME COUNSEL. MR. WINE RIFRP MREEGS GO
AHEAD. JORDAN D. WEINREICH: TUN. AS I MENTIONED
MATD REPLIES THE COURT MY NAME IS JORDZ AND KWIEN RIEFRP IFRN WITH THE FOINL
SHERL NARN WELGS FAST EAR SANL SFANL A SPEERG ON BEHALF OF PLAINTIFF BANK LEUMI
YOU GOES A BEFORE THIS COURT IS A QUESTION CERTIFIED FROM THE THIRD CIRCUIT REGARDING
THE SCOPE OF THE ENTIRE CONTROVERSY DOCTRINE AS IT APPLIES TO MOTIONS TO
SNIGS FOR FAILURE TO STATE A CLAIM. WE SUBMIT THAT THE ISSUE FRD BY THE CERTIFIED
QUESTIONS STRAIGHTFORWARD AS A MATTER OF FAIRNESS SHOULD A PARTY BE FEENL
LIESED FOR SUCCESSFULLY NOFRG TO DISMISS ON NONE MORE TIER YUS CLAIMS PUT ANOTHER
WAY DO THE COURT RULES PARTICULARLY RULE 462 E PUNISH A PARTY TEE FOR BEING
RIGHT. WE SUBMIT THAT THE ANSWER IS OF COURSE NO. WE ASK THIS COURT TO CLARIFY
THE REACH OF THE ENTIRE CONTROVERSY DOCTRINE CONTINUES TO GENERALLY RUN
PARALLEL TO FEDERAL CLAIM PRO CLUGS DEFENDANTS ON THE ON THE OTHER HAND ASK THIS
COURT TO VASTLY SPANLD THE SCOPE OF THE DOCTRINES PREINCLUSIVE REACH. INDEED,
A DWOPTING DEFENDANTS POSITION WOULD RESULT IN A FUNDAMENTALAL CHANGE TO RULE 4
62 AND WOULD BE A DEE PAR DRUR FROM THIS COURT'S PRONOUNCEMENT THAT PRECLUSION
UNDER THE ENTIRE CONTROVERSY DOCTRINE IS A REMEDY OF LAST RESORT. THE BEST STARTING
POINT HERE IS THE TEXT OF THE RULE IT RECEIVE. RULE 462 EXPLICITLY PERNLT
A LITIGANT TO FILE A PREANSWER MOTION TO DISMISS WITHOUT A CAVEAT. THE ONLY LIMITATION
ON SUCH A MOTION AS SET FORTH IN THE RULE IS THAT IT SHALL BE MADE BEFORE
PLEADING IF A FURTHER PLEADING IS TO BE MADE IN OTHER WORDS IT IS TO BE NAD BEFORE
FILING AN ANSWER. THERE IS NOTHING IN THE TEXT OF THE RULE THERE IS KNOWING IN
THE COMMENTS TRI OF THE RULE AND THERE IS KNOWING IN THE CONTROLLING CASE LAW THAT
PROVIDES ANY INDICATION THAT PREVAILING ON A PREANSWER MOTION TO DISMISS
KONLS WITHIN THE PUNITIVE CONSEQUENCE OF PRECLUSION. IN SHORT, THE RULE ADVOCATED
FOR BY DEFENDANTS WOULD TURN A PREANSWER MOTION TO DISMISS INTO A TYPE OF
PROCEDURAL GAMBLE. IF THE MOTION IS DENIED, IT IN KWHOELG OR IN PART, THERE IS NO
PRECLUSION BUT IF THE MOTION IS MERITORIOUS AND GRANTED IN FULL,
PRECLUSION ATTACHES. WE WOULD SUBMIT, YOUR HONORS THAT SUCH AN UNCERTAIN AND PRECARIOUS
RULE DOES NOT MAKE ANY SENSE. AND THAT IS REFLECTED IN DEFENDANT'S OPPOSITION.
INDEED THE CENTER PIECE OF THEIR OPPOSITION IS THAT SOMETHING PREINCLUSION A
DISMISSED DEFENDANT SHOULD FROED TO FILE IT IS CONDITIONS IN THE SAME AKSZ
FROM WHICH IT WHAT GOES JUST DISMISSED. SUCH A PROCEED URM PATH HOWEVER IS NOT
ACTUALLY AVAILABLE DEFENDANTS SIMENT REPLY MADE THAT UP. AND IT'S DEPENDENT
UPON OTHER DEFENDANTS REMAINING IN THE CASE. THEREBY THROWING ANOTHER VARIABLE
INTO THE PRECLUSION MIX. AN AFRMENT TIFR ANSWER TO THE CERTIFIED QUESTION
WOULD IN EFFECT RENDER RULE 462 NO LONGER PERMISSIVE. MOTIONS NTSDZ THAT RULE
WOULD AS A PRACTICAL MATTER BE PRIBTED IF A DEFENDANT EVEN REMOTELY LIKELY
IS EVEN REMOETDLY LIKELY TO HAVE A POTENTIAL KM AGAINST A PLAINTIFF. AS THOSE
DEFENDANTS WOULD BE FOERTSED TO CHOOSE BETWEEN ONE THE SUBSTANTIAL RISK
OF FORFEITING ANY AFFIRMATIVE CLAIMS OR TWO, LITD GAITING AN AND DEFENDING AGAINST EVEN
THE MOST FRIVOLOUS CLAMGS. AT ANY TIME A MOTION IS CONTEMPLATED AN ATTORNEY
WILL NEED TO ADVISE THEIR CLIENTS OF THE SUBSTANTIAL RIFK OF WHICH WAFRGD ANY CLAJS
THEY MAY HAVE NO MATTER HOW REMOTE THOSE CLAMENTS MAYBE. AS A RESULT, PARTIES
FORCED TO PRESEARCH THEIR RIGHTS BY ASSERTING KMS THAT THEY NJAA HAVE OTHERWISE
BEEN WILLING TO FOREGO. THE POINT OF THE DOCTRINE IS TO CONSOLIDATE LITIGATION
IN AS' BEEN PROPERLY STARTED KNOW THE TO COMPELLING ADDITIONAL LITIGATION. THAT'S
NOT PROMOTING JUDICIAL ECONOMY. NOW, IN THAT REGARD WHAT SHOULD NOT BE
LOST HERE IS THAT THE ENTIRE CONTROVERSY DOCTRINE IS ONE SOMETHING THE GOAL IS
FAIRNESS TO THE LITIGANTS AND TO THE COURT SYSTEM AS A WHOLE. WHAT THIS
COURT HAS REFERRED TO AS THE DWIN PILLARS OF THE ENTIRE CONTROVERSY DOCTRINE.
THE COURT HAS MADE CLEAR THAT THE BOUNDARIES OF THE DOCTRINE ARE NOT
LIMIT LESS AND THIS COURT HAS MADE CLEAR THAT THE PURPOSE OF THE DOCTRINE IS NOT
TO BAR MERITORIOUS CLAIMS AND THERE COURT HAS ALSO MADE CLEAR THAT MANDATORY
JOINDER SHOULD NOT BE CONFUSED WITH MANDATORY PRECLUSION. FOR BLEE CLUGS TO ATTACH
A COURT MUST DETERMINE THAT IF A PARTY HAS HADZ A FAIR REASONABLE OPPORTUNITY
TO PURSUE ITS CLAIMS IN A PRIOR ACTION. UNDER RULE 461 B A DEFENDANT THAT FILES
A PREANSWER MOTION TO DISMISS DOES NOT HAVE TO FILE A RESPONSIVE PLEADING
UNTIL 10 DAYS AFTER THE MOTION IS DENIED AND RULE 471 IS CLEAR A KMS ARE TO BE
ASSERTED IN A PLEADING. THESE RULES ARE UNAMBIGUOUS AS TO THE SEQUENCE
OF EVENTS THUS NO ANSWER NO KMS AND UNTIL SUCH TIME AS THE ANSWER MUST BE FILED,
THE DEFENDANT HAS NOT EXPENDED ITS OPPORTUNITY TO SUBMIT KMS. NOW OFRLSLY
THIS COURT HAS NOT ADDRESSED THIS ISSUE DROEKLY WHICH IS WHY WE ARE HERE BUT THE
APPELLATE DIVISION ADDRESSED A SIMILAR SITUATION IN ALL STATE V. CHERRY HILL PAIN
WHERE IT DISMISSED DEFENDANTS FILED A SEPARATE SUTD AGAINST THE PLAINTIFFS
AND THOSE MRVS DEFENDANTS MOVER TO DISMISS ON ENTIRE CONTROVERSY GROUNDS WHICH
THE TRIAL COURT GRAVENTED. IN THAT CASE THE APPELLATE DIVISION REVERSED
FINDING THAT IT WOULD BE UNFAIR TO REQUIRE A PARTY TO PARTICIPATE IN AN ACTION WHEN
THAT PARTY COULD EXTRICATE ITSELF SIMPLY BY FILING A MOTION ATTACKING THE
SUFFICIENCY OF THE PLEADINGS. FURTHER, THE ENTIRE CONTROVERSY DOCTRINE EXTENDS
BEYOND FEDERAL CLAIM PRECLUSION IN ONLY LIMITED CIRCUMSTANCES. AS SUCH,
FEDERAL CASE LAW IN THE SAME CONTEXT WOULD PROVIDE THIS COURT WITH A GUIDE POST
AND THOSE FEDERAL CASES UNIVERSALLY HOLE THAT A PARTY THAT FILES A SUCCESSFUL
PREANSWER MOTION TO DISMISS HAS NOT FILED A PLEADING, PRECLUSION UNDER FEDERAL
RULE 13 A OF THE FACTUAL XULS TRY KM RULE ONLY APPLIES TO CLAIMS THAT HAVE
THAT SHOULD HAVE BEEN SOMETHING. FOR THESE REASONS THE COURT SHOULD FIND THAT
NUJS XULS RECONDITIONAL RULE DOES NOT APPLY UNTIL THERE HAS BEEN SOME SORT
OF FORMAL PLEADING REQUIRED AND WHERE A PREANSWER MOTION TO DISMISS IS GRANTED,
THE REQUIREMENT HAS NOT BEEN TRIGGERED. WE SUBMIT URNS THAT THIS
INTERPRETATION OF THE ENTIRE CONTROVERSY DOCTRINE AND V RULE 462 THE ONLY ONE THAT
MAKES SENSE AND IS THE CORRECT ONE. ASZ SUCH WE RESPECTFULLY
SUBMIT THAT THE COURT SHOULD ANSWER THE CERTIFIED QUESTION IN THE NEGATIVE.
YOUR HONORS, I WOULD LIKE TO ANSWER IN I QUESTIONS YOU NJAA
HAVE. JUSTICE FERNANDEZ-VINA: MR. WINE RIFRP. JORDAN
D. WEINREICH: YES. JUSTICE FERNANDEZ-VINA: KWOU AGREE IN ORDER
FOR RULE 438 TO APPLY THERE HAS TO BE AN A LOSE GAS STATION ON THE MERITS IN ORDER
TO PROCEED WITH DISMISSAL? JORDAN D. WEINREICH: I AM SORRY
THE. A. WOULD YOU AGREE THAT PURNT TO RULE 4: 30 A THE ENTIRE CONTROVERSY
DOCTRINE RULE, IN ORDER FOR THE RULE TO APPLY IT HAS TO BE A DISMISSAL OR
ADJUDICATION ON THE MERITS THE PROERD A JUDZ INDICATION IS NOT SUFFICIENT?
JORDAN D. WEINREICH: PROCEDURAL YES I WOULD AGREE WITH
THAT. JUSTICE FERNANDEZ-VINA: OKAY. NOW, 462 E, IF ARGUMENTS
ARE MADE OUTSIDE THE PLEADINGS AND TURN INTO SUMMARY JUDGMENT MOTION OBVIOUSLY
IS AN ADJUDICATION OF THE NERTS WHEN THERE IGS NO ARGUMENT RAISED 0 UNDER 4
62 E OUTSIDE THE SPLEETSDZING SIMPLY A MOTION TO DISMISS, IS THERE A CASE THAT SAYS
THAT IS AN A JUDZ INDICATION ON P MERITS? DO YOU UNDERSTAND THE DIFFERENCE
BETWEEN. JORDAN D. WEINREICH: I DO YES. A. SUMMARY JUDGMENT
AND THE ONE THAT IS NOT? JORDAN D. WEINREICH: YES. HERE I THINK
THE DISTINCTION IS THAT WHERE A MOTION IS CONVERTED TO A MOTION FOR SUMMARY
JUDGMENT, UNDER 462 E THE COURT DOES CONSIDER THE COURT SO CHOOSES TO CONSIDER
EVIDENCE OUTSIDE THE PLEADINGS THE PROCEDURES THE SAME THE SAME MOTION
AND THE SAME RULES APPLY. JUSTICE FERNANDEZ-VINA: SUMMARY JUDGMENT
MOTION IS AN A JUD KALGS ON P NERTS CLEARLY OPPOSITION IS ALLOWED
AFFIDAVITS UNDER RULE 1666 ARE ALLOWED IN ORDER TO SUPPORT CERTAIN FACTS THAT ARE
PERHAPS NOT FOUND IN THE PLEADINGS. IN A 462 E WHERE THERE IS NO ARGUED
OUTSIDE THE PLEADINGS IT REMAINS A 462 EMOTION. IS THAT A -- A JUD INDICATION
OF MERITS EVEN THOUGH THERE IS NO FACTS CONSIDERED OTHER THAN THE INITIAL
PLEADING? JORDAN D. WEINREICH: NO IT IS NOT AN
ADJUDICATION ON THE MERITS NECESSARILY. JUSTICE FERNANDEZ-VINA: OKAY
SO UNDER 462 E IS DOLT KNOWS CONVERT INTO A SUMMARY JUDGMENT JUDGMENT MOTION
THE RULES REQUIRE BY THE COURT IF YOU ARE SUCCESSFUL IN A 462 E SIMPLY ONLY THE
MOTION WITHOUT HAVING BEEN KWERTDED TO SUMMARY JUDGMENT DOES THE CAVEAT
JDZ 430 A APPLY THAT IT IS NOT A MRIK IF IT IS NOT AN ADJUDICATION ON THE MERITS?
IN OTHER WORDS CAN YOU CAN YOU APPLY THE EVEN TIER CONTROVERSY DOCTRINE
WHEN YOU SIMPLY SUCCEED ON THE 462 EMOTION? JORDAN D. WEINREICH:
NO. I DON'T BELIEVE THE ENTIRE CONTROVERSY DOCTRINE APPLIES. WHEN WELL, E
TAKE THAT BACK IF YOU ARE THE FATHER THAT BROUGHT THE CLAIM AND DISMISSED.
JUSTICE FERNANDEZ-VINA: YES. JORDAN D. WEINREICH:
YES. JUSTICE FERNANDEZ-VINA: ON WHAT BASIS?
JORDAN D. WEINREICH: IF THE. JUSTICE FERNANDEZ-VINA: THERE
HAS BEEN NO CONSIDERATION ON ANYTHING OUTSIDE THE PLEADINGS NO FACTS SO
I AM ASKING IF THERE IS A CASE THAT SUGGESTS THAT A PLAIN 462 EFRMENT MOTION WITHOUT
IT HAFRGD BEEN CONVERTED INTO A SUMMARY JUDGMENT NOTION UNDER 466, IS THAT
IF THAT IS CONSIDERED AN ADJUDICATION ON P MERITS AND IF IT IS NOT, HOW CAN THE
ENTIRE CONTROVERSY DOCTRINE 430 A APPLY THEN? JORDAN D.
WEINREICH: SORRY. I MISREAD YOUR QUESTION BEFORE BECAUSE MY XURT CUT OUT A
LITTLE BIT SO I DON'T HAIF A KASZ THAT SAYS A DISMISSAL WITHOUT PREJUDICE
IS A DECISION ON THE MR. ERTS THAT KWO BAR SUBSEQUENTLY BRING THAT GO CLAIM AGAIN
OBVIOUSLY SOMEBODY HAS THEIR COMPLAINT DISMISSED WITHOUT PREJUDICE IT COULD
BE REFILE THE CLAIM OR AMEND THEIR COMPLAM TO TRY TO CORRECT WHATEVER DEFICIENCIES
THERE WERE SO WHAT HAPTD WITH RESPECT TO THE CERTIFIED QUESTION ACTUALLY
IS NOT ABOUT AFFIRMATIVE CLAIM BROUGHT BY THE PLAINTIFF IT'S WELL WHAT HAPPENS
WHEN I'M THE DEFENDANT AND I'VE MOVED TO DISMISS DO I GIVE UP MY RIGHT TO
BRING ANY KMS THAT I WOULD HACH OTHERWISE HAD. JUSTICE ALBIN:
WHICH MINE A FAILURE TO STALT A CLAIM CAN BE PRESENTED ON A MOTION BEFORE AN
ANSWER OR IT COULD BE ACTUALLY SUBMITTED IN AN ANSWER, MATD PART OF AN ANSWER,
CORRECT? JORDAN D. WEINREICH: CORRECT YOUR HONOR.
JUSTICE ALBIN: IF IT'S MADE PART OF AN ANSWER, AND THEN YOU MOVE FOR A DISMISSAL,
DOES THE ENTIRE CONTROVERSY DOCTRINE APPLY? ARE YOU FOLLOWING ME?
JORDAN D. WEINREICH: I DO. SO IN THAT CASE HAVE YOU
ASSERTED AN I CONDITIONAL IN THE ANSWER BECAUSE THAT'S. JORDAN D.
WEINREICH: JUSTICE ALBIN: WHEN WELL YOU WOULD HAVE BEEN REQUIRED
TO ANSWER AND TYPICALLY WITH YOUR ANSWER I THINK JUSTICE FERNANDEZ-VINA VEEN WOULD
SAY YOU WOULD LAIF TO FILE A KM THAT WOULD BE PROBABLY TIMELY NO.
JORDAN D. WEINREICH: I WOULD AGREE. SO UNDER YOUR QUESTION.
JUSTICE FERNANDEZ-VINA: THAT'S RULE 45. JORDAN D. WEINREICH: I
WOULD. JUSTICE ALBIN: INL LOOKING TO OUR RESIDENTS EXPERT
GO AHEAD. JORDAN D. WEINREICH: IF YOU FILE YOUR ANSWER
AND YOU ASSERT YOUR KM AND SUBSEQUENTLY MOVE TO DISMISS, WHICH IS ONE OF THE ARGUMENTS
THAT WAS MADE ACTUALLY BOTH BY JUDGE LA NAR RUST IN HIS DECISION I BELIEVE
BY DEFENDANT IN THEIR BRIEF, IT IS A DIFFERENT MOTION BUT NO THE ENTIRE CONTROVERSY
DOCTRINE DOES NOT APPLY BECAUSE YOU ALREADY. JUSTICE ALBIN:
THE REASON THE ON REASON WHY I AM RAISING IN IS BECAUSE IF A CASE IS DISMISSED
BECAUSE OF FAILURE TO STATE A CLAIM ON A MOTION OR BECAUSE IT IS INSERTED
IN AN ANSWER, IT IS STILL NOT ON THE MERITS, CORRECT? JORDAN
D. WEINREICH: YES. JUSTICE ALBIN: SO THE MERITS PIECE OF IT
REALLY DOESN'T MAKE A DIFFERENCE IT IS REALLY THE TIMEING, IT'S THE TIMEING OF WHETHER OR
NOT THE MOTION IS FILED BEFORE THE PLEADING. AND THAT DETERMINES WHETHER
OR NOT THE ENTIRE CONTROVERSY DOCTRINE IS GOING TO BE TRIGGERED. AM I RIGHT ABOUT
THAT? JORDAN D. WEINREICH: THAT'S A CERTIFIED QUESTION YES.
MY ARGUMENT IT IS NOT TRIGGERED BUT THAT'S A CERTIFIED QUESTION BEFORE THE COURT.
CHIEF JUSTICE RABNER: OTHER QUESTIONS ANYONE? ANYTHING YOU
WOULD LIKE TO ADD COUNSEL. JUSTICE LAVECCHIA: I WAS JUST GOING TO
SAY COUNSEL THAT YOUR ARGUMENT IS ALONG THE LINES IF YOU HAD FILED A PREANSWER
MOTION FOR LACK OF SUBJECT MATTER JURISDICTION, NO ONE WOULD BE CLANLING THAT
YOU HAD TO FILE A KM AT THE SAME TIME THAT YOU PROCEEDED SO THE 462 MOTION
TO DISMISS WHAT YOU BELIEVED TO BE A BASELESS CLAIM SHOULD BE TREATED THE SAME
WAY AS A DECISION THAT DOESN'T TRIGGER YOUR OBLIGATION TO FILE A COUNTERCLAIM
AT THAT POINT IN TIME SIMPLY BECAUSE YOUR ADVERSARY STARTED A LAWSUIT THAT WAS
BASELESS. JORDAN D. WEINREICH: THAT'S RIGHT YOUR HONOR.
I THINK OUR ARGUMENT IS UNDER THE RULES WE EVER THE PROCEED RUSHL RIGHT TO FILE
A PREANSWER MOTION TO DISMISS. AND ONCE YOU DO THAT, IF THE MOTION IS GRANTED
THEN THE CASE AGAINST THAT PARTY IS OVER AND THEY'RE FREE TO ASSERT WHATEVER CLAIMS
THEY MAY HAVE BECAUSE THEY HAVE NEVER HAD THE REQUIREMENT TO FILE A PLEADING
IN THAT ACTION. HOWEVER, IF THEY ARE NOT SUCCESSFUL IN THE MOTION OR ONLY PARTIALLY
SUCCESSFUL, THEN 461 IS TRIGGERED AND 10 DAYS LATER A RESPONSIVE PLEADING
MUST BE FILED IN WHICH ANY XULS REKJS MUST BE A SOERTED THEREIN.
JUSTICE LAVECCHIA: UNDERSTOOD. THANK YOU. CHIEF JUSTICE RABNER:
ANYTHING YOU WITH LIKE TO ADD COUNSEL. JORDAN D. WEINREICH:
NO YOUR HONOR AS I MENGSZED I WOULD SKWUSZ LIKE TO RESOIFR ANY TIME I HAVE LEFT
OVER FOR REBUT IT ISAL. CHIEF JUSTICE RABNER: SO I DIDN'T RECALL
YOU MENTIONING THAT BUT WE'LL WELCOME YOU BACK ASZ WE WENTD UNDER.
JORDAN D. WEINREICH: THANK YOU IFRMTH MR. BRA RESPONDENT:
THANK YOU. MAY IT PLEASE THE COURT, THERE ARE A COUPLE OF THINGS THAT WERE DURING
THE COUNSEL'S ARGUMENT THAT I THINK WARRANT A LITTLE MORE DISCUSSION, AND
THAT IS FIRST OF ALL, CLEARLY, THE RULE AS I UNDERSTAND THE RULE, AND IT'S FUNNY
SOMETIMES I'LL SAY TO TRIAL JUDGES YOU KNOW WHAT, I DIDN'T MAKE THE RULES,
THE COURT DID, IT'S OURS TO FOLLOW, AND HERE WE ARE, YOU'RE THE FINAL ARBITERS
OF WHAT THE DIMENSIONS OF THIS RULE IS CLEARLY AND WHAT IS INTENDED BY IT, AND
SO I FEEL, YOU KNOW, I'M JUST TRYING TO POINT OUT WHAT THE RULE IS UNDERSTOOD
TO BE BY THOSE THAT BRING IN THE VINEYARDS SO TO SPEAK. BUT SINCE 1977 IF NOT
BEFORE, BLANCH CHARRED STOOD FOR THE PROPOSITION THAT YOU'RE NOT SUPPOSED
TO WITHHOLD A CLAIM, THAT THE WHOLE PURPOSE BEHIND THE ENTIRE CONTROVERSY DOCTRINE
IS TO PUT ALL THE CARDS ON THE TABLE, IT'S BECOME REFINED OVER THE WHATS IT
DECADE NOW SINCE, AND YOU'RE WELL AWARE AND I NEED NOT TELL YOU WHAT THOSE
REFINEMENTS ARE, BUT POINTEDLY, THE THRESHOLD NOTION THAT IF YOU HAVE A CLAIM YOU
CAN'T JUST HOLD IT AND KEEP IT IN YOUR HIP POCKET AND WALK AWAY SOMEWHERE
ELSE AND BRING IT, PARTICULARLY WHEN IT'S TRANSACTION ALLEY RELATED, AND ALSO YOU CAN'T
SAY GEE, I DIDN'T KNOW, THE WARNINGS ARE THERE, YOU DON'T EVEN HAVE TO BE
CONVERSANT WITH THE CASE LAW, YOU JUFT LOOK AT LUL 4:7-1 AND BY THE WAY SOMEWHERE
A TYPO GOT IN MY BRIEF AND REFERRED TO 7--5, IT'S MEANT TO BE 7-1 BUT THAT'S
THE COUNTERCLAIM RULE AND IN BLACK AND WHITE IT WARNS THAT BY THE WAY IF THIS IS
A TRANSACTIONAL CLAIM THAT YOU HAVE AND UNASSERTED IT MAY BE BARRED BY THE RULE.
NOW, HERE THERE'S NO QUESTION THAT BANK LEUMI KNEW THEY HAD THIS CLAIM AND
THERE'S NO QUESTION THEY WITHHELD IT AND THERE'S NO QUESTION THAT STRATEGY WAS
INVOLVED, BECAUSE AFTER ALL WE FIND OUT A FILE -- AS A MATTER OF FACT, THAT'S
WHERE I MADE THE MOTION IN FEDERAL COURT BY THE WAY, I DIDN'T MOOUF BEFORE ANSWERING,
I MOVED THAT THEY DIDN'T -- THE ENTIRE CONTROVERSY DOCTRINE RULE HAD BEEN
VIOLATED AND THEN I SUBSEQUENTLY MOVED TO DISMISS. THE DIFFERENCE, BY THE WAY,
HOWEVER, IS IS THAT -- AND THAT PROCEDURAL I'M NOT SAYING THAT PROCEDURAL NUANCE
SHOULD REALLY MAKE A DIFFERENCE IN THE POLICY OF THE RULE AND THE REACH
OF THE RULE, BUT THE DIFFERENCE IS WHEN WE PREVAILED IN FEDERAL COURT THAT WAS
THE END OF THE CASE, IT WAS DONE, THERE WAS NO FURTHER CASE EXTANT. IN A
STATE COURT WHEN PREVAILED ON ITS MOTION, THE CASE CONTINUED, THAT CASE IS ALIVE
TODAY AND STILL HAS NOT BEEN TRIED AT ANY TIME UP UNTIL THE FINAL JUDGEMENT THE
COURT UNDER THE I THINK IT'S LOM BAR DOE VERSUS MASS SO OR MACY, IT'S A
SUPREME COURT OPINION, THE COURT CAN VACATE EVEN SUMMARY JUDGEMENTS, I.E.
DECISIONS ON THE MERITS. SO THEY WALKED AWAY FROM A LIVING, BREATHING CASE
TO FILE WHERE THEY THOUGHT THEY WOULD HAVE A MORE RECEPTIVE PLACE FOR THEIR POSITION
OBVIOUSLY. THOSE KIND OF CONSCIOUS DECISIONS OF WITHHOLDING A CLAIM WE
SAY ARE WHAT THE RULE IS DESIGNED TO PREVENT. NOW THEY ARGUE BY THE
WAY, AND HOOERZ JUST -- THEY ARGUE THAT WELL, IT WASN'T AN ADJUDICATION ON THE
MERITS, WELL, HELLO, THAT RULING WHICH WAS IN PART CONVERTED, WAS ABSOLUTELY A
N A JOOD OCCASION ON THE MERITS AND IT CAN BE, BY THE WAY, AND IT CAN BE BY THE
WAY AND IS FREQUENTLY IN SUCH A MOTION SETTING. SOMETIMES IT'S ADMITTEDLY
PROCEDURAL WHERE THE COURT SIMPLY SAYS YOU DIDN'T PARTICULARIZE THE ALLEGATIONS
WITH A SUFFICIENT DEFINITION AND THEREFORE I'M DISMISSING ALBEIT WITHOUT
PREJUDICE TO GIVE YOU ANOTHER CHANCE TO COME BACK. BUT THERE ARE SITUATIONS WHERE
THE COURT RULES ON THE MERITS THAT LOOK, HEY, I DON'T CARE HOW YOU CHARACTERIZE
THOSE FACTS, YOU DON'T HAVE A CAUSE OF ACTION AS A MATTER OF LAW, THAT'S CERTAINLY
AN ADJUDICATION ON THE MERITS, THAT SORT OF A DETERMINATION.
NOW, I AGREE THE PROCEDURAL NUANCE SHOULDN'T BE A DETERMINATIVE FACTOR, BUT THE
FACTOR AS PER THE CASE LAW IN PARTICULAR THE SUPREME COURT CASE AND MORE
PARTICULAR THE MOST RECENT PRONOUNCEMENT THAT CASE INVOLVING THE BORES GOLDMAN FORM
AND DE-MA TRAP LIST, I'M MISPRONOUNCING THEIR NAME BUT I'M CLOSE, AND THERE
THE COURT RULED THAT THERE ARE OBVIOUSLY EQUITABLE CONSIDERATIONS, NOW IN THIS SITUATION
LEUMI DIDN'T HAVE A FAIR OPPORTUNITY HERE TO HAVE THEIR CLAIM HEARD, THEY HAD
EVERY OPPORTUNITY TO HAVE THEIR CLAIM HEARD, THEY COULD HAVE FILED THIS COUNTERCLAIM
IN THE CASE AND THEY COULD HAVE #2350I8D IT AFTER, OR DONE WHAT THE CASE LAW
PROVIDES AND THERE'S A CASE INVOLVING WHERE JUDGE PRESSLER IN BROWN VERSUS BROWN
-- I ACTUALLY -- JUSTICE ALBIN: SO COUNSEL, COUNSEL, IN THIS
CASE, WHY WOULD THE BANK THINK IT WOULD HAVE TO FILE A COUNTERCLAIM. IT FILES A
MOTION BEFORE ANY PLEADING IS REQUIRED, GETS THE CASE DISMISSED, IT'S OVER, SO
LIKE WHY WOULD THEY THINK THAT THEY WOULD THEN FILE A PLEADING AFTER THE
CASE IS DEAD? RESPONDENT: A, THE CASE IS NOT DEAD, THE CASE
IS -- THE CLAIM AGAINST THEM IS DEAD. JUSTICE ALBIN: SO FROM THAT ARE
PERSPECTIVE -- RESPONDENT: I HEAR YOU, I HEAR YOU, I
UNDERSTAND, BUT POINTEDLY THEY WOULD THINK IF THEY LOOKED AT THE RULES OF COURT
AND THE CASE LAW, THEY WOULD KNOW -- JUSTICE ALBIN: SO WHAT ARE
THEY SUPPOSED TO SAY? THEY FILE A MOTION, THE JUDGE SAYS HEY, THERE'S NO CLAIM
AGAINST YOU, THEY DON'T HAVE TO FILE A PLEADING AND THEN FIGURE HEY LET ME -- WHY
DON'T I GET BACK INTO THIS CASE, JUST FILE A COUNTERCLAIM AND BE IN A COURT WHERE
I DON'T WANT TO BE? WHY WOULD THEY DO THAT? RESPONDENT: BECAUSE
THAT'S WHAT THE -- A, THE RULE, THE ENTIRE CONTROVERSY DOCTRINE RULE SUGGESTS
THAT THAT'S WHAT THEY HAVE TO DO, OR AT LEAST AT A MINIMUM IF YOU TAKE A
LOOK AT LIKE BROWN VERSUS BROWN, JUDGE PRESSLER FOUND THE ISSUE WAS AMENDMENT BUT
THE SAME IF YOU'RE IN DOUBT YOU FILE AN APPLICATION AND SAY I DON'T WANT
TOK HERE BUT I DON'T WANT TO RUN THE RISK OF BEING IN THE WRONG PLACE AND BEING
BARRED, YOU FILE A MOTION. THE COURT: SO THIS IS A DOCTRINE
GROUNDED IN EQUITY. WHAT EQUITABLE INTEREST IS SERVED BY BARRING A SECOND
ACTION WHEN YOU HAVE A SITUATION WHERE THE CASE IS COMPLETELY MERIT LESS AND CAN BE
DISPOSED OF WITHOUT ANY DISCOVERY, WITHOUT ANY FURTHER PROCEEDINGS?
RESPONDENT: WELL, OKAY. A ADMITTEDLY THERE'S A CASE RIGHT NOW BY A TRIAL JUDGE
THAT SAYS THAT, B, MORE IMPORTANTLY, YOU'RE GOING TO END UP POTENTIALLY
WITH VERY INCONSISTENT RESULTS TO THE CONSEQUENCES OF SUBORDINATION AGREEMENTS
AND THE LIKE, BECAUSE THAT CLAIM ALSO IN THE STATE COURT CASE WOULD BE TRIED,
SO YOU FIGURE YOU END UP WITH LEUMI GETTING ONE RESULT IN FEDERAL COURT AND KLOSS
IN A CLAIM AGAINST -- ENDING UP WITH A TOTALLY DIFFERENT RESULT. I'LL JUST
TELL YOU THE SPECIFICS SO YOU UNDERSTAND I'M NOT TAKING SOMETHING OUT OF THIN AIR.
IN THE CASE, THE CLAIM IS THAT HEY, YOU KNOW WHAT, YOU GOT THE MA NEAR FURNITURE,
YOU GOT ME TO SIGN THIS AGREEMENT AND YOU UNDERSTOOD THAT I WAS GETTING
PAID INTEREST, YOU AS A MATTER OF FACT ENTICED ME TO SIGN A SUBSEQUENT ONE WITH
THE PROMISE I WOULD HAVE MORE INTEREST, AND NOW I'M BEING SUED BY LEUMI
UNDER THAT SAME SUBORDINATION AGREEMENT, THEY'RE CLAIMING THAT THAT MY GETTING
INTEREST WAS FRAUDULENT AND THAT I OWE THEM A MILLION PLUS BUCKS. SO IN THE
FEDERAL COURT LEUMI COULD END UP PREVAILING AND ON THEIR THEORY THAT MY CLIENTS
HELD BACK, WITH THE CLAW BACK OF INTEREST PAID, AND IN THE STATE COURT THEY COULD
BE WELL, YOU KNOW WHAT, THE AGREEMENTS REALLY DIDN'T REQUIRE THAT AND
THEREFORE THERE WAS NOTHING WRONG WITH HAVING THAT DONE. THAT'S THE PRACTICAL
PROBLEM WITH LETTING THEM JUST GO OVER -- JUSTICE FERNANDEZ-VINA:
COUNSEL THERE'S NOTHING IN THE TRIAL COURT ANY LONGER BECAUSE THAT CASE WAS
DISMISSED. YOUR ARGUMENT MIGHT HAVE BEEN A LITTLE MORE PERSUASIVE IF THEY HAD
FILED AN ANSWER YOU COULD ARGUE 471 MANDATORY PERMISSIVE COUNTERCLAIM BUT IN THIS
CASE NO ANSWER WAS FILED, SIMPLY A MOTION TO DISMISS, SO IF AN ANSWER HAD BEEN
FILED, YOU KNOW, IT'S MORE PERSUASIVE THAT YOU HAVE TO FILE A MANDATORY
COUNTERCLAIM ALTHOUGH SOME ARE OEFRNL PERMISSIVE, THEY'RE NOT REQUIRED, BUT HERE
NO ANSWER WAS FILED AT ALL SO WHY WOULDN'T THE PARTY FILE AN ANSWER WHEN THEY
CAN FILE A MOTION TO DISMISS. RESPONDENT: WELL, MY POINT IS
THAT FILING AN ANSWER IS A HUNDRED PERCENT SKALT GO FORM OVER SUBSTANCE,
YOU CAN GET THE SAME RESULT BY FILING AN ANSWER AND THEN MOVING, SO MAKING AN ANSWER
THE SEE IN A KWA KNOWN FOR KEEPING IT IN YOUR HIP POCKET AND MUSING IT
ELSEWHERE, SHUNTS BE AN ANSWER. YOU MAY SAY -- JUSTICE FERNANDEZ-VINA:
OKAY, IF YOU FILE AN ANSWER IN CONJUNCTION WITH YOUR MOTION TO DISMISS FAILURE
TO STATE A KAUK, THEN IT'S GOING TO GO TO THE VERY LEAST SUMMARY JUDGMENT, IF YOU
HAVEN'T FILED IS A MOTION, 471 DOESN'T COME INTO PLAY, 471 OATH COMES INTO
PLAY WHEN YOU FILE AN ANSWER, SO IT WOULD BE INARTFUL FOR LACK OF A BETTER TERM
FOR A TO KNOW TO FILE AN ANSWER WITH A COUNTERCLAIM WHEN HE'S JUST SEEKING TO
DISMISS YOUR COMPLAINT. RESPONDENT: 471 DOES NOT REQUIRE A
N ANSWER BY THE WAY AT THE TIME. JUSTICE FERNANDEZ-VINA: HOW
DO YOU FILE A COUNTERCLAIM WITHOUT AN ANSWER, COUNSEL?
RESPONDENT: HOW CAN YOU? WELL, I BELIEVE IF YOU FILED A MOTION.
JUSTICE FERNANDEZ-VINA: HAVE YOU DONE THAT IN YOUR LONG CAREER?
RESPONDENT: HAVE I DONE IT IN MY OWN CAREER, PROBABLY NOT, PROBABLY NOT, THAT
DOESN'T MEAN YOU CAN'T DO IT, MY POINT IS THAT YOU CAN CLEARLY FILE A MOTION
WITH THE TRIAL JUDGE AND SAY HEY YOU KNOW WHAT, I HAD THIS CLAIM, I CAN EITHER
-- I DON'T WANT TO BE HERE, I DON'T WANT TO FILE A COUNTERCLAIM BUT I DON'T WANT
TO BE PRECLUDED SO EITHER PERMIT ME TO FILE IT AND THE COURT CAN ALWAYS
PERMIT A FILING, OR GIVE ME AN ORDER THAT SAYS I'M NOT PRECLUDED.
JUSTICE ALBIN: SO, COUNSEL, AND CHIEF JUSTICE TOUCHED ON THIS, BECAUSE THE ENTIRE
CONTROVERSY DOCTRINE IS A DOCTRINE OF EQUITY, WHY SHOULD THE PARTY WITH THE
MERITLESS CLAIM BE ABLE TO COMMAND THE FORUM? RESPONDENT: WELL,
THAT'S ALMOST A SELF ANSWERING QUESTION, ALTHOUGH UNDER OUR RULES THE PLAINTIFF
CAN PICK A FORUM AND THE RULES DON'T SAY, YOU KNOW, BY THE WAY, PLAINTIFF, IF YOUR
CLAIM IS DEEMED TO BE MERITLESS AT 1 POINT THAT SELECTION, WE'LL ENTERTAIN A
TRANSFER OF FORUM OR SOMETHING, I MEAN PLENTY OF CLAIMS GET DISMISSED AND THE RULE
IS NOT TO SELECT THE FORUM. THE COURT: ANYTHING ELSE YOU'D
LIKE TO PRESENT? RESPONDENT: NO. THE
COURT: THANK YOU MR. BRAY. MR. WEINREICH DID YOU WANT TO OFFER BRIEF REBUTTAL?
RESPONDENT: JUST BRIEFLY, I WOULD JUST NOTE --
THE COURT: HOLD ON ONE SECOND. DID WE LOSE MR. BRAY? I'M AFRAID HE MIGHT HAVE
CLICKED OFF FROM THE ARGUMENT. MR. WEINREICH, YOU HAVE A DIFFICULT QUESTION
OF DECIDING WHETHER YOU'D LIKE TO WAIVE REBUTTAL PERHAPS.
RESPONDENT: I WILL WAIVE REBUTTAL. THE COURT: THANK YOU. WE WILL
TAKE THE MATTER UNDER ADVISEMENT.