Edward G. Werner, Esq.

Strawbridge Professional Center

212 West Route 38, Suite 200
Moorestown, NJ 08057
http://www.egwlaw.com

Phone: (856) 380-4062

Fax: (609) 265-9637
E-Mail: egw61@yahoo.com

December 22, 2009

Honorable <Judge’s Name>

Mercer County Courthouse
209 South Broad Street
Trenton, New Jersey 08650-0068

Re: Edward G. Werner v. State of New Jersey Department of Law and Public Safety

Dear Judge <Name>

Please accept this letter brief in support of the Plaintiff’s application for an Order to Show Cause.

PRELIMINARY STATEMENT

The Plaintiff relies upon the facts as set forth in the Verified Complaint.

The VCCO operates almost independently of state tax dollars. In most years, the State of New

Jersey taxpayers support the VCCO with less than $1,000,000. It costs approximately $2,500,000 per

year to administer the office, so taxpayers are not even paying the salaries of the people who work

there. The VCCO receives funds from two types of sources; (1) those within the State of New Jersey and

(2) a Federal Government grant. In both cases, the law is absolutely clear. The money must only be

used to pay claims of victims. It may not be diverted to other purposes.

LEGAL DISCSUSSION

(1) New Jersey sources. The two main sources of funds from within New Jersey are (a)

assessments paid by defendants in the various courts throughout the state and (b) surcharges paid by

inmates in the prisons and jails for purchases at their commissaries. For the SFY 09, the VCCO received

approximately $500,000 per month from the assessments paid by defendants in court. (See exhibit 2). The

OPRA request response produced only eight months of these reports, but by averaging the monthly revenue

from the produced reports I have received confirms the VCCO received approximately $5,954,241. In addition,

the agency received a record amount from the commissary surcharge. Again, based on an incomplete OPRA

production the final figures are still out, but based on the Office of Law and Public Safety’s production, the

prison commissary surcharge yielded approximately $2,698,936. In addition, the agency received restitution

from criminals in the amount of $509,290 (See attached June 30, 2009 internal memorandum). That is a total in

New Jersey State revenue of $9,162,467. That figure does not include any state taxpayer money.
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 Under statute NJSA 2C:43-3.1 (6)(a) “The Victims of Crime Compensation [Office] Account shall be a

separate, nonlapsing, revolving account that shall be administered by the Victims of Crime

Compensation [Office]. All moneys deposited in that Account shall be used in satisfying claims pursuant

to the provisions of the ‘Criminal Injuries Compensation Act of 1971’”. This statute is clear – the money

collected for the VCCO must be spent only on claims from victims to that agency and its related administrative

costs. It is illegal to divert those collected funds to any other entity.

(2) Federal Government source. Under the Federal Government’s 1984 Victims of Crime Act

(“ VOCA”), 42 U.S.C.A. Section 10601, each state in the union is provided with a yearly grant. As with the

New Jersey funds, the Federal Government VOCA grant does not come from taxpayers, it is derived from

a fund collected from defendants in the Federal Justice system. For fiscal year 2009, New Jersey was

awarded $5,404,000. That figure is based on a simple formula that applies to every state. Each state’s

crime victim compensation agency is awarded a federal grant in the amount of 60% of the total state

dollars spent. In fiscal year 2007 the New Jersey VCCO spent $9,005,932.71 dollars from New Jersey

sources (source United States Office of Victims of Crime – http://www.ojp.usdoj.gov/ovc/fund/cvfa2009.html ).

Consequently, the federal grant for fiscal year 2009 is $5,404,000.

Below is a chart of the funding provided to the respective crime victim compensation offices throughout

the country through the VOCA grant program:

2009 Crime Victims Fund

Compensation and Assistance Allocations

COMPENSATION ASSISTANCE TOTAL

POPULATION
(July 1, 2008)
FY 2007 Certified FY 2009 2009
STATE Payout ALLOCATION NUMBER PERCENT ALLOCATION
ALABAMA $5,409,673.44 $3,246,000 4,661,900 0.01511 $5,588,807 $8,834,807
ALASKA 953,916.00 572,000 686,293 0.00222 1,249,139 1,821,139
ARIZONA 1,870,977.96 1,123,000 6,500,180 0.02107 7,595,425 8,718,425
ARKANSAS 1,766,076.23 1,060,000 2,855,390 0.00926 3,616,869 4,676,869
CALIFORNIA 51,779,475.00 31,068,000 36,756,666 0.11917 40,622,608 71,690,608
COLORADO 5,933,875.61 3,560,000 4,939,456 0.01601 5,891,780 9,451,780
CONNECTICUT 1,824,712.00 1,095,000 3,501,252 0.01135 4,321,874 5,416,874
DELAWARE 833,312.57 500,000 873,092 0.00283 1,453,044 1,953,044
DISTRICT OF
4,921,797.00 2,953,000 591,833 0.00192 1,146,029 4,099,029
COLUMBIA
FLORIDA 19,478,461.93 11,687,000 18,328,340 0.05942 20,506,733 32,193,733
GEORGIA 6,486,660.56 3,892,000 9,685,744 0.03140 11,072,703 14,964,703
HAWAII 737,872.16 443,000 1,288,198 0.00418 1,906,163 2,349,163
IDAHO 2,190,577.45 1,314,000 1,523,816 0.00494 2,163,357 3,477,357
ILLINOIS 19,339,248.00 11,604,000 12,901,563 0.04183 14,583,006 26,187,006
INDIANA 3,783,962.40 2,270,000 6,376,792 0.02067 7,460,738 9,730,738
IOWA 3,181,234.00 1,909,000 3,002,555 0.00973 3,777,510 5,686,510

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KANSAS 2,210,981.00 1,327,000 2,802,134 0.00908 3,558,736 4,885,736
KENTUCKY 572,066.72 343,000 4,269,245 0.01384 5,160,195 5,503,195
LOUISIANA 1,493,039.00 896,000 4,410,796 0.01430 5,314,709 6,210,709
MAINE 269,453.32 162,000 1,316,456 0.00427 1,937,009 2,099,009
MARYLAND 3,643,983.50 2,186,000 5,633,597 0.01826 6,649,486 8,835,486
MASSACHUSETTS 1,733,760.62 1,040,000 6,497,967 0.02107 7,593,010 8,633,010
MICHIGAN 2,271,751.00 1,363,000 10,003,422 0.03243 11,419,472 12,782,472
MINNESOTA 2,361,435.00 1,417,000 5,220,393 0.01692 6,198,443 7,615,443
MISSISSIPPI 784,014.66 470,000 2,938,618 0.00953 3,707,718 4,177,718
MISSOURI 6,074,724.26 3,645,000 5,911,605 0.01917 6,952,952 10,597,952
MONTANA 579,119.56 347,000 967,440 0.00314 1,556,032 1,903,032
NEBRASKA 99,835.02 60,000 1,783,432 0.00578 2,446,747 2,506,747
NEVADA 3,475,260.58 2,085,000 2,600,167 0.00843 3,338,274 5,423,274
NEW HAMPSHIRE 385,670.34 231,000 1,315,809 0.00427 1,936,302 2,167,302
NEW JERSEY 9,005,932.71 5,404,000 8,682,661 0.02815 9,977,764 15,381,764
NEW MEXICO 1,285,919.00 772,000 1,984,356 0.00643 2,666,071 3,438,071
NEW YORK 18,064,042.00 10,838,000 19,490,297 0.06319 21,775,095 32,613,095
NORTH CAROLINA 4,136,088.00 2,482,000 9,222,414 0.02990 10,566,944 13,048,944
NORTH DAKOTA 499,787.00 300,000 641,481 0.00208 1,200,224 1,500,224
OHIO 12,772,983.75 7,664,000 11,485,910 0.03724 13,037,717 20,701,717
OKLAHOMA 2,302,485.00 1,381,000 3,642,361 0.01181 4,475,905 5,856,905
OREGON 2,277,224.14 1,366,000 3,790,060 0.01229 4,637,130 6,003,130
PENNSYLVANIA 9,808,232.00 5,885,000 12,448,279 0.04036 14,088,213 19,973,213
RHODE ISLAND 1,186,496.17 712,000 1,050,788 0.00341 1,647,013 2,359,013
SOUTH CAROLINA 7,361,471.00 4,417,000 4,479,800 0.01452 5,390,032 9,807,032
SOUTH DAKOTA 237,921.45 143,000 804,194 0.00261 1,377,837 1,520,837
TENNESSEE 9,404,090.04 5,642,000 6,214,888 0.02015 7,284,008 12,926,008
TEXAS 49,617,841.60 29,771,000 24,326,974 0.07887 27,054,684 56,825,684
UTAH 4,287,396.54 2,572,000 2,736,424 0.00887 3,487,008 6,059,008
VERMONT 369,696.91 222,000 621,270 0.00201 1,178,162 1,400,162
VIRGINIA 2,142,046.00 1,285,000 7,769,089 0.02519 8,980,533 10,265,533
WASHINGTON 5,992,022.00 3,595,000 6,549,224 0.02123 7,648,960, 11,243,960
WEST VIRGINIA 2,222,874.00 1,334,000 1,814,468 0.00588 2,480,625 3,814,625
WISCONSIN 1,687,092.66 1,012,000 5,627,967 0.01825 6,643,341 7,655,341
WYOMING 1,078,941.00 647,000 532,668 0.00173 1,081,446 1,728,446
AM. SAMOA 0.00 0 64,827 0.00021 270,763 270,763
GUAM 0.00 0 175,991 0.00057 392,107 392,107
N. MARIANA IS. 0.00 0 86,616 0.00028 294,548 294,548
PUERTO RICO 927,103.41 556,000 3,954,037 0.01282 4,816,123 5,372,123
VIRGIN ISLANDS 157,829.25 95,000 109,840 0.00036 619,898 714,898
TOTAL 303,272,443 181,963,000 308,451,035 1.00000 363,797,025 545,760,025

Award figures rounded to nearest thousand.

Column 1 - FY 2007 qualifying victim compensation payments.

Column 2 - FY 2009 total compensation award.
Column 3 - State population and Puerto Rico estimates based on July 1, 2008, Bureau of Census estimates. Territories based on 2000 Census.
Column 4 - Each state's percentage of the United States and territories population.
Column 5 - FY 2009 allocation provides $500,000 base for states and $200,000 base for territories, balance spread using state percentage of United States
population.
Column 6 - Total allocation for compensation and assistance.

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 Parenthetically, by reducing the amount New Jersey spent on victims this year, the next federal grant will

be considerably lower than it has been. To illustrate, if when the figures are calculated for the current fiscal year

the New Jersey VCCO spends only $4,000,000 in state source funds, its consequent federal grant will be only

$2,400,000. So by failing to pay victims’ claims as they are supposed to, it not only deprives victims

today, it will eliminate the recurring revenue stream from the federal grant, necessitating further

deprivation to victims.

Just like the state funds, the VOCA grant must be used for payments to victims through the crime victim

compensation agency. As plainly stated on the VOCA website, “Every state administers a crime victim

compensation program that provides financial assistance to victims of both federal and state crimes. VOCA

allows states to use up to 5 percent of crime victim compensation grant funds for administering the crime victim

compensation grant program. Any portion of the allowable 5 percent that is not used for administrative

purposes must be used for awards of compensation to victims.”

source: http://www.ojp.usdoj.gov/ovc/publications/factshts/vococvf/fs_000310.html).

In 1984, VOCA established the Crime

Victims Fund (hereinafter referred to as
the Fund) in the U.S. Treasury to
receive deposits from fines, penalties,
and bond forfeitures levied on criminals
convicted of federal crimes. The Fund is
administered by OVC to support the
activities authorized by VOCA.
OVC makes annual VOCA crime
victim compensation grants from the
Fund to eligible states and territories.
The primary purpose of these grants is
to supplement state efforts to provide
financial assistance and reimbursement
to crime victims throughout the Nation
for costs associated with crime, and to
encourage victim cooperation and
participation in the criminal justice
system.
With the exception of most property
damage and loss as explained in these
Final Guidelines, state crime victim
compensation programs may use VOCA
compensation grant funds to pay for
eligible expenses allowed by state
compensation statute, rule, or other
established policy.
(Source: VOCA Final Guidelines DEPARTMENT OF JUSTICE; Office for Victims of Crime; [OJP(OVC)–1319]
Victims of Crime Act Victim Compensation Grant Program

New Jersey Criminal Law

“NJSA 2C:30-2. Official Misconduct. A public servant is guilty of official misconduct when, with purpose to

obtain a benefit for himself or another or injure to or deprive another of a benefit:

(b) He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the

nature in the nature of his office.

Official misconduct is a crime of the second degree. If the benefit…deprived or sought to be deprived, is of a
4
value of $200.00 or less, the offense of official misconduct is a crime of the third degree.”

In the case at hand, the Department of Law and Public Safety has deliberately deprived crime victims

throughout the state of benefits to which they are entitled in millions of dollars, far exceeding the $200

threshold to establish a crime of the second degree. In New Jersey, there is a presumption of incarceration for

crimes of the first and second degree.

New Jersey Crime Victim Compensation Office Statute, Case Law, and Administrative Code

The VCCO exists pursuant to NJSA 52:4B. “…the nature of the area in which the [VCCO] functions requires

an emphasis upon an individual approach, which may be granted only by granting the [VCCO] a wide area of

discretion. We further note that courts have expressed approval of broad delegations of power to

administrative agencies.” In Re Ethel Hollywood , 124 N.J. Super 50, 54 , 304 A.2d 747 (1973).

Unfortunately, there have been occasions at which crime victims have had to take formal legal action to

compel the VCCO to do what it is supposed to do – use the funds at its disposal to assist innocent victims of

violent crime. In 1973, the VCCO denied compensation to a rape victim on the grounds that she waited too

long to apply. “On September 15, 1973, eighteen year old Elizabeth White was the victim of a brutal

criminal assault and rape as a result of which she suffered severe bodily injuries, including a broken jaw,

“tremendous” facial bruising and other head injuries. Plaintiff was hospitalized until September 26, 1973 and

her jaw was wired shut until September 26, 1973.” White v. VCCB , 76 NJ 368, 370, 388 A.2d 206 (1978).

In ruling the VCCB was arbitrary and capricious in denying Ms. White’s application for technicalities, the Court

stated, “The manifest purpose of the Act is the humane and remedial one of attempting to compensate

innocent victims of violent crimes by providing a measure of relief from the economic consequences of their

misfortune.” White v. VCCB , 76 NJ 368, 380, 388 A.2d 206 (1978).

“The Act vests broad discretion in the [VCCO] … to determine whether payment of compensation is

warranted based upon any circumstances it determines to be relevant (N.J.S.A. 52:4B-10(c)).” Puntasecca v.

VCCB 214 N.J. Super. 368,371, 519 A.2d 890 (1986). In finding the VCCO had the discretion to compensate a

crime victim who was the victim of arson even though arson was not then an enumerated crime under the

statute, the Court concluded: “This is clearly committed to the expertise of the [VCCO] which has been

delegated broad discretion under the statute.” Puntasecca v. VCCB 214 N.J. Super. 368, 374, 519 A.2d 890

(1986).

In addition to the statutory and case law authority directing the VCCO to be mindful of the underlying

purpose of the agency when determining eligibility of claims, the VCCO’s administrative code is explicit:

“These rules shall be liberally construed by the [VCCO] to permit it to discharge its statutory function and secure

equitable determinations in all matters before the [VCCO].” NJAC 13:75-1.2 (2006). “In any matter not

expressly governed by these rules or by statute, the [VCCO] shall exercise its discretion.” NJAC 13:75-1.3

(2006).

CONCLUSION

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 The Defendant has wrongfully refrained from compensating innocent victims of violent crime during the

State Fiscal Year 2009. It has denied applications from crime victims at a historically high ratio even

though it had more money at its disposal than would be necessary to pay many of the claims it denied.

This situation is troubling first and foremost because the innocent victims of violent crime have been

revictimized by the very agency that is supposed to be assisting them.

The immediate issue that needs to be determined is – What did they do with all that money? If they did

not use the funds to compensate victims, and the funds are not reflected on their financial statement, then

where are they? It appears they were diverted or possibly even embezzled. In either event, the Department of

Law and Public Safety has broken the law.

The remedy requested, an accounting of the funds delivered to the VCCO, should be an easy exercise. All it

requires is for the Defendant to demonstrate that it still has all of the funds that were raised for it to

compensate victims. If the Defendant has done nothing wrong, this will be simple. If, on the other hand, it has

diverted the funds, then it must replace them immediately so that crime victims receive the assistance they

need.

Respectfully submitted,

Edward G. Werner
Plaintiff pro se