SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0522-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EUGENE LAVERGNE, a/k/a

EUGENE MARTIN LAVERGNE,

Defendant-Appellant.

______________________________

Submitted January 14, 2019 – Decided

Before Judges Fasciale and Rose. 

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 12-11-

1894.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Louis H. Miron, Designated Counsel, on the 

brief).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Monica do 

Outeiro, Assistant Prosecutor, of counsel and on the 

brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

January 29, 2019
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A grand jury returned two separate indictments against defendant 

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

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

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

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

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

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

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

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

first appeal. 

On appeal, defendant argues:

POINT I

THE TRIAL COURT ERRED BY DENYING 

[DEFENDANT]'S MOTION TO DISMISS THE 

INDICTMENT BECAUSE [A] MONMOUTH 

COUNTY GRAND JURY DID NOT HAVE 

JURISDICTION TO HEAR THE CASE AND 

RETURN AN INDICTMENT AGAINST 

[DEFENDANT].

A. [Defendant] Did Not Waive His Right 

to Raise a Jurisdictional Challenge to the 

 

1

 Defendant is a disbarred attorney. See In re LaVergne, 212 N.J. 427 (2012). 
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Monmouth County Grand Jury. (Not 

Raised Below).

B. The Trial Court Abused its Discretion in 

Not Dismissing the Indictment on the 

Grounds That the Grand Jury Lacked 

Jurisdiction.

We affirm. 

I.

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

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

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

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

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

arranged to have the matter heard in Middlesex County. 

Approximately one year later, the Monmouth County Prosecutors Office 

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

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

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

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

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

defendant. Immediately upon the State's presentation of defendant's case, 
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defendant filed an OTSC seeking the recusal of the MCPO and the first judge, 

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

defendant's motions.

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

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

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

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

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

County. 

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

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

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

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

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

notwithstanding the existence of an acknowledged conflict of interest. The 

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

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

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

1986). The judge noted that "[t]he supervisional duties of the [first judge] 
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include charging the grand jury, administering the oath . . . , [and] discharging 

the grand jury at the end of their term." 

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

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

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

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

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

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

judicial involvement whatsoever" and that defendant did not suffer any 

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

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

Defendant mischaracterizes the fact by stating 

that [the first judge] empaneled the grand juries to hear

. . . defendant's case[s]. This was not an investigatory 

grand jury which is empaneled for the purposes of 

investigating a case. It was a standard . . . grand jury 

empanelment to sit [eighteen] weeks . . . , [one] day a 

 

2

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

[i]n the event of the disqualification or inability for any 

reason of a judge to hear any pending matter before or

after trial, another judge of the court in which the matter 

is pending or a judge temporarily assigned to hear the 

matter shall be designated by the Chief Justice or by the 

Assignment Judge of the county where the matter is

pending . . . .
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week, and to get everything from drug cases, to 

homicides, to bad checks, to apparently [defendant]'s 

matter.

. . . .

It is a simple fact that [the first judge] had no 

direct contact with defendant's case. And his role in 

swearing in a jury and using standard language and 

form promulgated from the conference of Assignment 

Judges had absolutely no prejudicial [e]ffect, nor any 

[e]ffect whatsoever on this defendant. And no rational 

person would conceive that there's even an appearance 

of impropriety.

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

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

motions.

In January 2017, defendant appeared before another judge in Middlesex 

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

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

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

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

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

denied. 
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II.

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

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

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

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

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

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

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

a guilty plea represents a break in the chain of events 

which has preceded it in the criminal process. When a 

criminal defendant has solemnly admitted in open court 

that he is in fact guilty of the offense with which he is 

charged, he may not thereafter raise independent claims 

relating to the deprivation of constitutional rights that 

occurred prior to the entry of the guilty plea.

[411 U.S. at 267.] 

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

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

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

States Supreme Court concluded that the defendant could raise a double 

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

The Court held that a guilty plea does not waive a claim when "the charge is one 
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which the State may not constitutionally prosecute." Id. at 62 n.2. The Court 

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

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

is prohibited by the United States Constitution. Ibid. 

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

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

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

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

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

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

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

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

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

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

Super. at 509.

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

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

"constitutional protection" like the Double Jeopardy Clause of the Fifth 

Amendment that would prevent a trial from taking place at all. Garoniak, 164 
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N.J. Super. at 348. Defendant's contention is not that the State was prohibited 

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

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

indictment. If defendant wanted to subsequently challenge the grand jury 

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

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

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

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

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

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

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

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

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

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

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

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

 

3

 Pursuant to Rule 3:9-3(f), "a defendant may enter a conditional plea of guilty 

reserving on the record the right to appeal from the adverse determination of any 

specified pretrial motion. If the defendant prevails on appeal, the defendant 

shall be afforded the opportunity to withdraw his . . . plea." 
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(1997)). Accordingly, defendant's argument regarding [the first judge's] 

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

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

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

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

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

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

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

and corresponding with defense counsel." 

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

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

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

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

this appeal. We stated:

Here, defendant offers no support for his 

proposition that Rule 1:12-3 prohibited [the first judge] 

from empaneling a grand jury or assigning other judges 

to handle defendant's case, including the grand jury 

presentation. By its plain language, Rule 1:12-3(a) 

requires the assignment judge or the Chief Justice to 

designate another judge "to hear any pending matter 

before or after trial" if the judge hearing the matter is 

disqualified. Nor is there any support for defendant's 

proposition that where the case is ultimately transferred 
11 A-0522-17T4

to a different county after indictment, but prior to 

arraignment, a conflict by [the first judge] creates a 

jurisdictional issue mandating the dismissal of the 

indictment in the absence of any finding of prejudice, 

perceived or actual, in the grand jury presentation. On 

the contrary, we are satisfied that [the first judge's] 

ministerial and insubstantial acts "did not 'substantially 

undermine' the objectivity of the charging process or 

case harm to the defendant." [State v. Murphy, 110 N.J. 

20, 35 (1988)].

[LaVergne, slip op. at 31.]

Affirmed.