State v. Barnes

Decision Date22 September 1980
Citation84 N.J. 362,420 A.2d 303
PartiesSTATE of New Jersey (City of Newark), Plaintiff-Appellant, v. Buck BARNES, Defendant-Respondent. STATE of New Jersey (City of Newark), Plaintiff-Appellant, v. Ronald UNDERWOOD, Emanuel Wright, James Wright and Earl Wright, Defendants- Respondents.
CourtNew Jersey Supreme Court

Thomas W. Matthews, Asst. Corp. Counsel, Newark, for plaintiff-appellant (Salvatore Perillo, Corp. Counsel, attorney; Thomas W. Matthews, Newark, and Michael R. Paglione, legal intern, Maplewood, on the brief).

Jeffrey E. Fogel, Newark, for defendants-respondents (Rutgers University-Newark, Urban Legal Clinic, attorneys).

Edwin H. Stern, Deputy Atty. Gen., for amicus curiae Atty. Gen. of New Jersey (John J Degnan, Atty. Gen., attorney; Edwin H. Stern, of counsel and on the brief; William T. Koch, Jr., legal assistant, South Orange, on the brief).

The opinion of the Court was delivered by

CLIFFORD, J.

The question presented is whether the State may appeal from a county court1 determination at a criminal trial de novo, R. 3:23-8, that a municipal ordinance is unconstitutional.

The defendants, Buck Barnes, Ronald Underwood, Emanuel Wright, James Wright and Earl Wright, were charged with a total of 116 violations of a Newark municipal ordinance regulating peddlers on the city streets.2 Defendant Barnes was tried on one of the complaints against him in Newark Municipal Court and found guilty on June 28, 1977. Although the record is not clear, it is apparent that guilty pleas to the remaining 115 complaints were entered by Barnes and the other defendants. A variety of fines, suspended prison sentences and probation terms were imposed by the municipal court.3

All the defendants appealed to the then Essex County Court. Their appeals were consolidated for a trial de novo on the record pursuant to R. 3:23-8. It appears that the only issue raised in that court was the constitutionality of the ordinance. In an unpublished opinion issued January 4, 1978, the county court found the ordinance under which the defendants were convicted to be unconstitutionally vague and overbroad on its face. A judgment reversing the convictions and acquitting the defendants was entered on March 21, 1978.

The State appealed the constitutional question to the Appellate Division. On May 8, 1979 that court dismissed the appeal, leaving the county court judgment of acquittal in full force and effect. 168 N.J.Super. 311, 315, 403 A.2d 7 (1979). The dispositive question was the State's right to appeal, an issue raised sua sponte by the court during oral argument. The Appellate Division held that the appeal was precluded as not coming within the terms of R. 2:3-1. 168 N.J.Super. at 314, 403 A.2d 7. At the time of the appeal from the county court determination of unconstitutionality R. 2:3-1(b) provided that the State could appeal from "a judgment of the trial court entered before or after trial dismissing an indictment accusation or complaint * * *."4 The Appellate Division found that the State could not appeal because the constitutionality of the ordinance had not been raised "before or after trial" but rather had been raised during the de novo hearing in the county court. 168 N.J.Super. at 314, 403 A.2d 7.

We granted the State's petition for certification to address the issue of whether the appeal is precluded by either our Rules or the double jeopardy clauses of the federal and state constitutions. 81 N.J. 349, 407 A.2d 1223 (1979). We now reverse.

I

It is by now well established that a constitutional challenge to a criminal enactment is properly raised for the first time at a trial de novo. State v. Celmer, 157 N.J.Super. 242, 245-46, 384A.2d 894 (App.Div.1978), rev'd on other grounds, 80 N.J. 405, 404 A.2d 1 (1979). See also State v. Damiano, 142 N.J.Super. 457, 361 A.2d 631 (Law Div.1978) (where constitutionality of statute is dispositive of appeal, waiver of trial de novo is appropriate). The better practice for a municipal court is "to assume that an act is constitutional until it has been passed upon by the Appellate Court, unless it is so clearly in contravention of the constitution that there can be no reasonable doubt about it * * *." In re Woodland Ave. Drain, East Orange, 39 N.J.L.J. 362, 363 (Essex Cir.Ct.1916); see Legg v. Passaic County, 122 N.J.L. 100, 4 A.2d 300 (Sup.Ct.), aff'd o. b., 123 N.J.L. 263, 8 A.2d 574 (E. & A.1939).

Here the defendants correctly preserved their constitutional attack until the trial de novo. Had they followed the court rules in so doing, this drama of errors might very well never have been staged.5 At a trial de novo a defense that the dispositive statute or ordinance is unconstitutional shall be raised by motion and determined in accordance with R. 3:10. See R. 3:23-8(d). R. 3:10-3 provides explicitly that the defense of unconstitutionality must be raised by motion before trial or within ten days of a verdict of guilty. The rule goes on to state that such defenses shall not be considered during trial.

Not only did the defendants fail to make the requisite motion before trial, but the county court proceeded to determine the constitutional issue at trial. To compound these errors, the State apparently failed to object at any point. Thus the present appeal begins to resemble the unanswered question posed by the United States Supreme Court in Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), namely, what are the consequences for "a defendant who is afforded an opportunity to obtain a determination of a legal defense prior to trial and nevertheless knowingly allows himself to be placed in jeopardy before raising the defense"? Id. at 393, 95 S.Ct. at 1065, 32 L.Ed.2d at 277.

In view of the importance of the issue raised and our disinclination to permit any party to profit from inattention to the rules of court, we relax the requirements that the parties have failed to observe, R. 1:1-2, and now address the double jeopardy issue. Cf. State v. Currie, 41 N.J. 531, 197 A.2d 678 (1964) (defendant failed to raise double jeopardy claim before trial). See also State v. Schwarcz, 123 N.J.Super. 482, 303 A.2d 610 (Law Div.1972) (court will treat unconstitutionality defense as having been raised before trial). However, the bench and bar can scarcely expect future disregard of the Rules to be treated with a similar indulgence.

II

Defendants contend that the double jeopardy clause precludes the State's appeal of the county court's reversal based on the unconstitutionality of the ordinance. Although there are five defendants and 116 complaints, 115 of the complaints involved guilty pleas. Those pleas carry over to a trial de novo and in that proceeding there may be no relitigation of factual issues as to guilt. State v. Mull, 30 N.J. 231, 152 A.2d 572 (1959); State v. Schrier, 30 N.J. 241, 152 A.2d 578 (1959).

However, the entry of guilty pleas will not bar a defendant's challenge to the constitutionality of the ordinance. Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); see State v. Garoniak, 164 N.J.Super. 344, 396 A.2d 360 (App.Div.1978), certif. den., 79 N.J. 481, 401 A.2d 236 (1979). As explained by the United States Supreme Court in Menna :

* * * a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. Here, however, the claim is that the State may not convict the petitioner no matter how validly his factual guilt is established. The guilty plea, therefore, does not bar his claim. (423 U.S. at 62 n. 2, 96 S.Ct. at 242 n. 2, 46 L.Ed.2d at 198.)

As to those defendants who pleaded, a successful government appeal of the county court determination could not subject them to successive prosecution or multiple punishment but only in reinstatement of their guilty pleas. Hence, the double jeopardy clause does not present any impediment to the State's appeal in those cases.

III

The double jeopardy claim of defendant Barnes arises in a different context, he having gone to trial and suffered conviction in the municipal court. Resolution of that claim calls for more exacting analysis.

The double jeopardy clause of the Fifth Amendment of the United States Constitution provides " * * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." This federal constitutional requirement is made applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). We have consistently applied double jeopardy principles which accord with the federal constitution because its language is broader than our own state constitution's double jeopardy clause, Article 1, paragraph 11.6 State v. Lynch, 79 N.J. 327, 340, 399 A.2d 629 (1979); State v. Rechtschaffer, 70 N.J. 395, 404, 360 A.2d 362 (1976). But see State v. Farmer, 48 N.J. 145, 168, 224 A.2d 481 (1966), cert. den., 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967) (despite language difference in state and federal constitution double jeopardy clauses, clauses are coextensive in application).

The double jeopardy clause serves three related purposes:

(i) It protects against a second prosecution of an offense after acquittal of the same offense.

(ii) It protects against a second prosecution of an offense after conviction of the same offense.

(iii) It protects against multiple punishments for the same offense.

(North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969).)...

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