Fifth Ward Councilman Michael Yakubov, acting as a resident of the Borough and citizen, pleaded guilty to the Disorderly Persons and Criminal Mischief charges in connection with the theft of a Carl Hokanson campaign sign from a neighbor’s lawn last month. Standing before Judge Thomas A. Vitale in Kenilworth for the almost 30-minute hearing with his attorney, Ernesto Cerimele, Mr. Yakubov admitted to knowingly taking the sign from a neighbor’s lawn and folding it in half, thereby legally damaging property.
In front of a roomful of people who mostly did not know the mayoral candidate from Roselle Park other than, perhaps, members of the Roselle Park Democratic Committee (RPDC) Dan Petrosky and Keith Heyman who sat in the back, Mr. Yakubov – through his attorney – took advantage of a new law that took effect in January of this year which allows for a first-time defendant who commits a disorderly persons or petty disorderly persons offense to take part in a conditional dismissal program. Conditional dismissal stipulates that if a defendant complies with terms and conditions imposed by the court and has not be convicted of any crime during the one-year period, the court is authorized to terminate the probation monitoring and dismiss the proceedings against the defendant and the offense will not be deemed a conviction for purposes of disqualifications or disabilities, but must be reported to the State Bureau of Identification for the purposes of determining future eligibility or exclusion from court diversion programs. In addition, according to Advisory No. 2013-44 released by New Jersey Courts, the law states that a conditional dismissal is not deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under any law of this State. Also, the law allows for a person who has had charges dismissed pursuant to a program of conditional discharge or conditional dismissal to apply for an expungement six months after the entry of the order of dismissal.
Judge Vitale started the proceedings by asking if Mr. Yakubov had been fingerprinted and if a Computerized Criminal History (CCH) was run, both of which are conditions of the program. This started the first of numerous lengthy public discussions regarding the implementation of the Conditional Dismissal with Judge Vitale trying to determine whether these issues should be handled first before judgment was rendered. Even Jon-Henry Barr, the Kenilworth prosecutor, was called into the courtroom, to address the matter. In responding to the judge’s request for a CCH, he stated, “I have been advised by the Roselle Park Police that there is no history. I can also tell you that I am completely confident that we can resolve this today. We do not need to hold this up because if he doesn’t get those fingerprints by the time the dismissal would come, he wouldn’t be entitled to the dismissal so I have no problem with starting the process today and simply allowing the charge to be dismissed.”
“I don’t have any problem with that either. I’m just reading what the guidelines say here,” stated Judge Vitale, “As a condition of application, the defendant must submit to the fingerprint requirements. So I’m assuming that he’s made application already?”
“No your honor [but] he has no objection to being fingerprinted,” interjected defense attorney Cerimele.
It was determined that Mr. Yakubov would get fingerprinted downstairs at the Kenilworth Police Department later in the day. Judge Vitale then explained to Mr. Yakubov, “Assuming that everything is in order, at that point, you will not have to return to court and in six months these charges will be dismissed. Do you understand that?”
Mr. Yakubov responded yes then the judge asked for the factual basis of the case, which meant the defendant had to provide facts regarding his or her admission of guilt for a plea.
Mr. Cerimele asked, “Mr. Yakubov, on Friday October 24th were you home at your present address?”
“And on that date, you were arrested for stealing campaign signs from a neighbor that is located on your street, is that correct?”
“It was one sign,” clarified Mr. Yakubov.
“And that sign was, in fact, not yours?”
“And you do admit taking that sign.”
Judge Vitale accepted the statement and then continued on to the charge of criminal mischief, asking how the sign was damaged.
“I folded the sign,” responded Mr. Yakubov.
“So, the factual basis establishes that you took the sign and not only took the sign but damaged or destroyed the sign,” said Judge Vitale, requiring confirmation.
With that, the judge and the court imposed a $75 application fee for the program, a $50 Violent Crimes Assessment, and a $75 Safe Neighborhoods Assessment for a total of $200 in fees and fines.
Upon further reviewing the guidelines, Judge Vitale asked both attorneys regarding the 12-month period as he cited the New Jersey statute which contradicted the six month period that the prosecutor and defense agreed to for the plea. Mr. Cerimele equated the Conditional Dismissal to a conditional discharge as did Mr. Barr but the judge, referring to the statute, stated that there was no discretion in the statute, stating, “It’s not a period of up to 12 months, it’s for a period of 12 months.”
The discussion then returned to the CCH with Judge Vitale, in referring to seeing the documentation, commenting, “You can’t just assume that it’s a first offense. You have to, under law, review the abstract to make sure it is a first offense, or second or third offense or whatever the case may be because if I don’t and it does gets kicked back …”
Mr. Barr remarked, “Judge, I want . . . to get this resolved today. So let me ask Kenilworth Police if we can get a CCH, get that in front of your Honor, and get this processed that way because I don’t wish to hold it up any longer than necessary.”
“Nor do I,” answered Judge Vitale, “But by the same token I don’t want to skirt the procedural requirements here just to be expedient and that’s for Mr. Yakubov’s benefit as well because the last thing we need is for me not to follow procedures and then when it gets down to probation, they kick it back because something wasn’t done properly which is just a waste of time.”
A conversation regarding the reading of the statute as to whether the judge could even extend the offer a six month period as the wording did not including the wording ‘shall’ or ‘discretion’ began. During the discussion, Mr. Yakubov’s CCH was handing to the prosecutor by a Kenilworth Police officer and then to Judge Vitale who confirmed a clean criminal and driving record.
“If the court is without discretion here, my client will not be opposed to being put on for 12 months,” stated Mr. Cerimele.
Judge Vitale stated he would impose the 12 months but make a recommendation for a maximum of six months, stating that the discretion is up to the state’s probation department.
With that, the judge concluded by stating, “There is an admission of guilt but there is no finding of guilt. Mr. Yakubov is to be placed on an official dismissal status for a period of one year.”
After the hearing Mr. Yakubov had no comment but stated he might issue a release at a later time.