SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4521-95T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SCOTT J. SIRVENT,
Defendant-Appellant.
_________________________________________________________________
Argued December 10, 1996 - Decided January 7, 1997
Before Judges Pressler, Stern and Wecker.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County.
Anthony M. Arbore argued the cause for
appellant (Forster & Arbore, attorneys;
Mr. Arbore and Robert G. Wilson, on the
brief and reply letter brief).
Michael F. Jan, Assistant Morris County
Prosecutor, argued the cause for respondent
(John B. Dangler, Morris County Prosecutor,
attorney; Joseph Connor, Jr., Assistant
Prosecutor, on the letter brief).
The opinion of the court was delivered by
STERN, J.A.D.
Defendant, Scott J. Sirvent, appeals from an order of the Law Division denying his motion to dismiss the State's appeal from orders of the Municipal Court of Parsippany-Troy Hills dismissing motor vehicle complaints filed against him, denying his "Motion to Dismiss the summonses and complaints against
defendant as not timely filed under N.J.S.A. 39:5-3," and
remanding the case to the municipal court for trial. Defendant
contends that the municipal complaints were barred as untimely
under N.J.S.A. 39:5-3, that the doctrine of equitable estoppel
cannot be used to render them timely as held by the Law Division
and that, in any event, the State's appeal to the Law Division
from the dismissal of the complaints by the municipal court was
itself untimely.
The alleged offenses occurred on September 22, 1994 when
complaint-summonses for driving while intoxicated (N.J.S.A. 39:4-50), careless driving (N.J.S.A. 39:4-97), and driving without a
license (N.J.S.A. 39:4-29), were issued to the driver of an
automobile stopped by a Parsippany police officer. When
defendant's brother Joseph J. Sirvent (in whose name the tickets
were issued) arrived for the municipal court proceedings on
December 7, 1994, the issuing officer noticed, and the prosecutor
reported, that the person "currently in court" "was not the
person who was stopped by the officer." The prosecutor also
indicated that he would "be moving to amend this charge of the
moment to appear as John Doe because we are concerned about the
possibility of the statute of limitations running on this
matter," but added "[w]e suspect who the other individual is" and
that "[w]hen the other individual is found we will proceed on
these charges and I anticipate other charges as well."
The municipal court judge granted the prosecutor's motion
and amended the complaints against "Joseph J. Sirvent" to name
"John Doe." In his brief before us, defendant states that "[o]n
December 13, 1995, after an investigation by the police, the
motor vehicle charges were brought against Scott Sirvent." He
cites a complaint-summons charging Scott J. Sirvent with
obstructing justice, N.J.S.A. 2C:29-1, and volunteering false
information to a police officer to hinder his own prosecution,
N.J.S.A. 2C:29-3b(1). In his opinion the Law Division judge also
found that "the motor vehicle summons were issued to defendant
Scott Sirvent" on December 13, 1994. While the motor vehicle
complaints apparently were never amended to charge this defendant
by name, the new complaint-summons, after charging the title 2C
offenses, stated "[a]lso MV Summons B151867, B151868, B151869 for
39:4-97, 39:3-29[,] 39:4-50." These are the numbers of the motor
vehicle tickets originally issued in the name of Joseph J.
Sirvent, which had been amended to charge "John Doe."
Defendant expressly acknowledges that he was the person who
was given the summonses after being stopped on September 22,
1994. Nevertheless, on November 15, 1995, he was successful in
convincing a municipal court judge to dismiss the motor vehicle
charges because they were not timely filed against him in his own
name. The State filed an appeal in the Law Division on December
5, 1995, although the orders of dismissal of the case against
"Scott J. Sirvent" were not executed or entered by the municipal
court until December 14, 1995. Defendant argues that the appeal
was untimely following the November 15, 1995 decision and that
the Law Division erred in reversing the dismissal.
We deal first with the appealability of the municipal court dismissals. Defendant's argument addressed to the appealability is twofold. He contends that because the municipal court judge noted the dismissals on the back of the motor vehicle complaints on November 15, 1995, the prosecutor's appeal was untimely because it was filed beyond the ten days in which an appeal had to be taken pursuant to R. 3:24. He also contends that the subsequent dismissal orders of December 14, 1995 were a nullity by virtue of the prior dismissals, and that the December 5, 1995 notice of appeal could not apply to a subsequently entered dismissal.
Defendant's arguments have some facial appeal. R. 1:3-4(c) prohibits enlargement of the ten-day period for appeals under R. 3:24. However, the reference in R. 1:3-4(c) to the prohibition of enlargement of time refers to "R. 3:24 (appeals to the Law Division from interlocutory orders of courts of limited criminal jurisdiction)" (emphasis added).
As we explained in State v. Burten, 207 N.J. Super. 53, 57-62 (App. Div. 1986), the reference to R. 3:24 in R. 1:3-4(c) was adopted when R. 3:24 permitted only applications for review of interlocutory orders of a municipal court and at a time when only a defendant could appeal from a final judgment of a municipal court, pursuant to R. 3:23. See R. 3:23 ("Appeals from Judgments of Conviction in Courts of Limited Criminal Jurisdiction"). When the Supreme Court amended R. 3:24 in 1979 to permit the State to
appeal from pre-trial or post-trial dismissals, following the
evolution of case law concerning such appeals from dispositions
that have no jeopardy consequences,See footnote 1 the parenthetical reference
to R. 3:24 in R. 1:3-4(c) was not amended to delete the reference
to interlocutory appeals. As a result, in Burten, supra, we had
to consider the impact of the parenthetical reference in R. 1:3-4(c) to interlocutory orders.
We concluded that there was no preclusion to an enlargement
of the time in which the State could appeal from the dismissal of
a complaint embodied in a final judgment. See Burten, supra, 207
N.J. Super. at 59-60. We stated that:
In view of the differences between
interlocutory appeals and appeals from final
judgments, it is not surprising that in the
usual case in which the defendant is the
appellant from a municipal court, the rules
draw a distinction between enlargement of the
time for appeal to the Law Division from
interlocutory and final orders of the
municipal court. R. 1:3-4(c) prohibits the
enlargement of time for appeals to the Law
Division from interlocutory orders by a
defendant as well as the State. On the other
hand a defendant may upon a showing of good
cause and the absence of prejudice obtain an
extension of not more than 20 days to appeal
to the Law Division from a final municipal
court judgment. R. 1:3-4; R. 3:23-2. While
it would be desirable for the rules to
establish expressly what is the limitation on
enlargement of the time for the State to
appeal, in the absence of such a rule we hold
that the State upon demonstrating good cause
and the absence of prejudice may obtain an
enlargement of not more than 20 days, the
same period afforded a defendant, to appeal
from a pre-trial or post-trial judgment of a
court of limited criminal jurisdiction
dismissing a complaint.
[Id. at 61-62.See footnote 2]
R. 3:23-2 was thereafter amended, effective January 1, 1987,
to allow a defendant twenty days to appeal from a judgment of
conviction, instead of ten days enlargeable by another ten days
to a period not exceeding twenty days. In 1992, the reference to
R. 3:23-2 in R. 1:3-4(b) was deleted, and relaxation of the
twenty-day period was prohibited by its incorporation into R.
1:3-4(c). In the interim, R. 1:3-4(c)'s parenthetical reference
to "interlocutory orders" with respect to R. 3:24 remained
unchanged.
R. 3:24 was again amended on June 9, 1989, effective on June
19, 1989. At that time the Supreme Court authorized municipal
court judges to entertain motions to suppress arising out of
warrantless searches with respect to matters which can be tried
within their jurisdiction. See also R. 3:5-7(a). The amendment
to R. 3:24 implemented that jurisdiction by further amending R.
3:24(b) to permit the prosecutor to appeal from the grant of a
motion to suppress as if it were a final judgment. As to such
appeals, the Supreme Court also provided, in R. 3:24(c), that the
prosecutor could appeal from the grant of a motion to suppress
within thirty days after entry of the order suppressing evidence.
See R. 3:24(c). R. 3:24(d) was simultaneously adopted with
respect to the scope of an appeal to the Law Division from the
grant of a motion to suppress.
As with the amendment to R. 3:24 in 1979, the reference in
R. 1:3-4(c) to interlocutory orders was not amended at the time
of the 1989 amendments. Hence, we hold that the approach taken
in Burten with respect to the interrelationship between R. 1:3-4(c) and R. 3:24 is still viable, and that the ten-day period in
which the State may appeal from a pretrial dismissal of a
municipal court complaint may be enlarged to a maximum of twenty
days.See footnote 3
We reject defendant's arguments that the appeal was untimely even under the Burten rationale with respect to final judgments. The Law Division judge ruled that, given the 1987 amendment to R. 3:23-2 and the Burten rationale, the State should have a similar twenty-day period in which to appeal under R. 3:24. Alternative ly, the judge held that there was "good cause" for the ten-day extension and an "absence of prejudice" because defendant had been aware of the charges.
Defendant contends that the municipal court complaints were
dismissed on November 15, 1995 when the municipal court judge
noted the dismissals on the back of the motor vehicle complaints
and that, therefore, the ten days ran on November 25, 1995
(actually, November 27, 1995 because November 25 was a Saturday,
see R. 1:3-1). Defendant further contends, as noted above, that
the ten day period in which to appeal is not enlargeable, and
alternatively asserts that even if the Burten rationale is
applicable, the State has not shown "good cause" or the "absence
of prejudice" warranting the extension to December 5, the
twentieth day following dismissal. See Burten, supra, 207 N.J.
Super. at 61.
The parties dispute whether the dismissals were entered by
the notations on the back of the complaints on November 15, 1995,
or by the judge's entry of the orders of dismissal one month
later on December 14, 1995. However, we need not develop in
detail the procedure for dispositions in municipal courts or the
interrelationship between R. 3:1-4 ("Orders; Form; Entry") and
Part VII of the rules. See R. 7:1 (incorporating Part III
rules). As in Burten:
We find it unnecessary to decide whether
or not the time to appeal to the Superior
Court, Law Division, from a judgment of
dismissal should be measured from the entry
of the judgment or the prosecuting attorney's
notice of its entry. Undoubtedly in practice
the attorneys or interested persons are
usually present when cases are decided in a
municipal court and thus when there is a
prosecuting attorney the date of entry of the
judgment and the date of his knowledge of its
entry is ordinarily the same. Here we will
assume without deciding that the ten days
runs from entry of the judgment of dismissal
even [when] the prosecuting attorney had no
knowledge of the disposition in the municipal
court until [a later date].
[Burten, supra, 207 N.J. Super. at 58-59.]
A municipal prosecutor was present in court on November 15, 1995
and unsuccessfully opposed defendant's application to dismiss the
motor vehicle charges. We will, therefore, assume that the
dismissals were entered, for appealability purposes, when the
judge indicated, on the record at the proceedings of November 15,
1995, that the complaints would be dismissed. He also noted the
dismissal on the back of the complaints that day. Hence, the
State had to file its appeal by November 25, 1995. But as there
is no limitation directed to the time in which the State could
seek enlargement of the ten-day period in which to appeal, the
State could seek an additional ten days "before or after" that
period expired, R. 1:3-4(a), provided the appeal was actually
filed by December 5, 1995. Hence, the Law Division could grant
the enlargement at the time it heard the municipal appeal.
We conclude that the Law Division did not abuse its
discretion by entertaining the appeal filed in the Law Division
on December 5, 1995. In that connection we note that the motor
vehicle complaints served upon defendant were never actually
amended from "John Doe" to specifically name him and that the new
complaint charging defendant with the 2C offenses and referring
to the motor vehicle complaints was not dismissed. Thus
although the State's rationale for "good cause" related to a
question concerning whether the County or Municipal prosecutor
was going to file the appeal and how municipal funds could be
generated to pay the filing fee - the State had reason to believe
that the case against Scott Sirvent was not, in fact, dismissed
on November 15, 1995. In any event, the extension until December
5 for filing the appeal was not inappropriate.
Defendant also argues that the appeal filed on December 5,
1995 was premature and that no timely appeal was filed following
the entry of the December 14 orders of dismissal. However, on
the thesis that the orders were not entered until December 14,
1995, the State's notice of appeal, dated December 5, 1995, was
filed before the ten-day time period embodied in R. 3:24 elapsed
(or even began). Thus, while a party may well be able to secure
dismissal of a premature notice of appeal filed before the order
appealed from is entered, once the order was entered the Law
Division could proceed with the appeal absent a prior dismissal
of the premature notice. Cf. Echelon Glen Coop. v. Voorhees
Township,
275 N.J. Super. 441 (App. Div.), certif. denied,
138 N.J. 272 (1994) (jurisdiction of Tax Court continued in the
absence of a motion to dismiss appeal where statutory
prerequisite to appeal had not been satisfied); Palm Beach
Mercantile Co. v. Ivers,
2 N.J. Super. 5, 9 (App. Div. 1949)
("[T]he circumstance that the judge did not sign the order until
the day after the appeal was taken, does not affect the merits
and should not be permitted to deprive the aggrieved party of his
appeal.")
We affirm the Law Division's determination that the municipal court improperly dismissed the DWI, careless driving and driver's license motor vehicle complaints. Defendant argues that the complaints against him were untimely because of N.J.S.A. 39:5-3, which provides in pertinent part:
When a person has violated a provision of this subtitle [Motor Vehicle and Traffic Laws], the judge may, within 30 days after the commission of the offense, issue process directed to a constable, police officer or the director for the appearance or arrest of the person charged.
We need not decide whether this provision constitutes a statute of limitations, an issue expressly reserved by the Supreme Court. See State v. Celmer, 80 N.J. 405, 419 (1979), cert. denied, 444 U.S. 951, 100 S. Ct. 424, 62 L. Ed.2d 321 (1979); see also State v. Brennan, 229 N.J. Super. 342 (App. Div. 1988); State v. Latorre, 228 N.J. Super. 314 (App. Div. 1988); State v. Wallace, 201 N.J. Super. 608 (Law Div. 1985). Here, copies of the complaints were personally served upon defendant before his release on the complaint-summonses. Defendant at oral argument before us expressly confirmed that he was the person who received the summonses at the time the complaints were issued.See footnote 4 Stated differently, defendant acknowledges that the complaint-summonses in his brother's name were served upon him when he was stopped or
before his release from the police station the night he was
stopped and the tickets were issued.
R. 7:6-1(a) authorizes the use of "a uniform traffic ticket"
embodying the summons and complaint in traffic cases. That form
was used in this case. R. 7:6-1(b) provides for the issuance of
complaints charging traffic offenses. It provides:
(b) Issuance. The complaint may be made and
signed by a law enforcement officer, or by
any other person, but the summons shall be
signed and issued only by such officer, or
the judge, clerk or deputy clerk, municipal
court administrator or deputy court
administrator of the court in which the
complaint is, or is to be filed. R. 7:3
relating to warrants and summons in respect
of nonindictable offenses generally, shall be
applicable to cases involving a traffic
offense, except as otherwise herein provided.
In cases involving traffic offenses where
bail is to be fixed, the judge, clerk or
deputy clerk, municipal court administrator
or deputy court administrator of the court
where the complaint is filed shall determine
that there is probable cause to believe that
the offense has been committed and that the
defendant has committed it. In all other
cases involving traffic offenses there shall
be no requirement for a finding of probable
cause.
N.J.S.A. 39:5-3, regarding the issuance of process, was fully
complied with in light of the issuance of process pursuant to R.
7:6-1(b).
The issue before the municipal court dealt not with issuance
of process to defendant, but with the name of the defendant who
was, in fact, stopped and served. Cf. State v. Bain,
212 N.J.
Super. 548, 553 (App. Div.), certif. denied,
107 N.J. 68 (1986).
An argument, similar to the one advanced by defendant, was
properly rejected by the Law Division in State v. Rondinone,
291 N.J. Super. 489 (Law Div. 1996). There, the Law Division was
confronted with a motion to dismiss a DWI complaint-summons
served upon a driver who was in possession of and produced
somebody else's license. The summons was issued in the name of
the licensee. As Judge Conte explained:
[D]efendant's argument that the summonses
should be dismissed ... fails since the
defendant was issued a summons at the scene
of the violation on August 20, 1994, albeit
in the wrong name. The fact that the summons
was issued in the name of Michael Ottomanelli
does not change the fact that defendant was
personally issued process thereby giving him
sufficient notice of the violation so that he
was not forced to defend a stale claim.
Therefore, process was issued within thirty
days of the occurrence as directed by
N.J.S.A. 39:5-3 and defendant's convictions
for [violations of chapters 3 and 4 of Title
39] must not be reversed on statute of
limitations grounds.
[291 N.J. Super. at 496.]See footnote 5
See also Latorre, supra, 228 N.J. Super. at 329 ("Given the fact
that [defendant] was or should have been aware of [the] essential
facts [embodied in the complaint] ... had the State moved timely
to cure the defect even at the trial date (notwithstanding that
the ... limitation of N.J.S.A. 39:5-3 had expired) such relief
would have been appropriate"). Moreover, R. 7:10-2 specifically
provides that the municipal court:
may amend any process or pleading for any
omission or defect therein, or for any
variance between the complaint and the
evidence adduced at the trial but no such
amendment shall be permitted which charges a
different substantive offense (other than a
lesser included offense). If the defendant
is surprised as a result of such amendment,
the court shall adjourn the hearing to some
future day, upon appropriate terms.
See also R. 3:7-4 with regard to indictable offenses; State v.
Gillison,
153 N.J. Super. 65 (Law Div. 1977) (denying a motion to
dismiss an indictment because the perpetrator was misnamed).
In light of our holding, we need not consider the State's
argument that the doctrine of equitable estoppel provides a basis
for tolling the time limits of N.J.S.A. 39:5-3.
The judgment of the Law Division is affirmed, and the matter is remanded to the municipal court of Parsippany for further proceedings.
Affirmed.
Footnote: 1See, e.g., United States v. Scott,
437 U.S. 82,
98 S. Ct. 2187,
57 L. Ed.2d 65 (1978); State v. Lynch,
79 N.J. 327, 340-43
(1979). See also Reports of the Supreme Court Criminal Practice
Committee Parts I and III regarding Rules 2:3-1(b), 3:24 and 7:4-2,
103 N.J.L.J. 413, 417 (May 3, 1979).
Footnote: 2On remand, the Burten prosecution was dismissed on
preemption grounds. See State v. Burten,
219 N.J. Super. 339
(App. Div. 1986), aff'd o.b.,
219 N.J. Super. 156 (App. Div.),
certif. denied,
107 N.J. 144 (1987).
Footnote: 3Like the panel in Burten, we believe that it is still
"desirable for the rules to establish expressly what is the
limitation on enlargement of the time for the State to appeal"
from a final judgment in a municipal court. 207 N.J. Super. at
61. Accordingly, we are referring the matter to the Criminal and
Municipal Practice Committees with the request that they make
their recommendations known to the Civil Practice Committee which
has primary rule recommendation jurisdiction with respect to the
rules of general application embodied in Part I.
Footnote: 4We need not consider the procedure to be utilized for
deciding the issue if defendant contested this fact.
Footnote: 5Judge Conte also noted that
when the original summons ... was dismissed,
the charges remained pending until the
identity of the real defendant could be
ascertained. Since the original summons was
deficient in that it incorrectly identified
defendant, the Superior Court [Law Division]
on appeal from the municipal court conviction
has a duty to amend the original complaint
pursuant to R. 3:23-8(c) despite the passage
of thirty days beyond the date of the
offense.
[Id. at 499.]
Here, the municipal court complaints were amended to charge "John Doe" and should have been reamended to charge defendant once it was established that the uniform traffic tickets were issued to
him. However, the Law Division could amend the "John Doe" complaints based on the appeal following their dismissal even if there was no application to the municipal judge to do so.