State v. Hanson

• Decision Date: 05 February 1960
• Docket Number: No. A--790,A--790
• Citation: 59 N.J.Super. 434,157 A.2d 847
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John A. HANSON, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 434

59 N.J.Super. 434

157 A.2d 847

STATE of New Jersey, Plaintiff-Respondent, v. John A. HANSON, Defendant-Appellant.

No. A--790.

Superior Court of New Jersey.

Appellate Division.

Argued Jan. 25, 1960.

Decided Feb. 5, 1960.

Franklin W. Kielb, Flemington, for appellant.

William L. Boyan, Deputy Atty. Gen., for respondent (David D. Furman, Atty. Gen., attorney).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant appeals from a judgment of the Warren County Court finding him guilty of drunken driving. He was sentenced to serve a three-month term in county jail and his driver's license was revoked for a period of ten years. The prison sentence and revocation were mandatory under N.J.S.A. 39:4--50, this being defendant's second drunken driving conviction. The first was in February 1955, at which time his driver's license was revoked for two years under the same statute. It was restored in February 1957, when the Director of Motor Vehicles, pursuant to R.S. 39:5--32, N.J.S.A., issued a validated license which defendant was to carry with him for three years.

A validated license, commonly known as a 'red' license, from its color, is issued upon the termination of the revocation period imposed by a municipal magistrate or the Director of Motor Vehicles. On its reverse side appears the reason for the revocation of the original driver's license, the date and nature of the offense, and the dates of the revocation and restoration. When the validated license period terminates, the regular license is automatically returned to the driver. Division of Motor Vehicles, Rules Governing Issuance and Administration of Validated Driver Licenses (July 1, 1952).

Defendant was arrested for drunken driving April 13, 1958. The complaint filed with the municipal court carried the word 'red' after the driver's license number. The matter was heard some eight months later; the magistrate found defendant guilty as charged, sentenced him to three months in county jail and revoked his license for ten years. Defendant thereupon appealed to the Warren County Court, in accordance with R.R. 3:10--1 et seq. Such an appeal is heard De novo. R.R. 3:10--10(a).

Defendant's contention in the County Court was that he had not received a fair trial because the municipal magistrate had before him a complaint indicating that defendant's license was 'red.' To assure complete justice the State offered to obliterate from the complaint any reference to a 'red' license and to have the case tried before a County or Superior Court judge, specially assigned, who did not know that defendant had or was alleged to have a validated license.

Instead of acting on the offer, defendant moved before the County Court to have the complaint dismissed on the ground that its reference to a 'red' license was fundamentally unfair, highly prejudicial, and militated against an impartial hearing. The State countered with a motion to amend the complaint by deleting any reference to a 'red' license. The county judge denied defendant's motion and granted the State's.

Defendant then sought leave to appeal under R.R. 2:2--3(a) from the order denying his motion. This Part denied leave to appeal, but suggested at the oral argument that considerations of fairness would seem to call for a retrial of the matter before a judge who knew nothing of defendant's license's being 'red.' Thereupon the State again offered to have the case heard De novo by a judge without knowledge of the prior offense. Defense counsel requested an opportunity to discuss the matter with his client. He eventually declined to act on our recommendation, stating that 'the item of the judge is immaterial.' Accordingly, the order denying leave to appeal contained no provision that the matter be heard by a judge without prior knowledge of the case, and directed the County Court to proceed in accordance with R.R. 3:10--1 et seq.

The case came on for hearing on the merits before Judge Schechter, the only county judge in Warren County, who, of course, knew that defendant's license was 'red' because he had earlier heard the motion to dismiss the complaint. He found defendant guilty as charged, and entered the judgment required by law and now before us on appeal.

Defendant argues two grounds for reversal: (1) the original presence of the word 'red' on the complaint deprived him of a fair trial De novo before the County Court; and (2) the statement in the notice of appeal of the nature of the offense and the sentence imposed, required under R.R. 3:10--3, was highly prejudicial because it brought to the attention of the county judge the fact that defendant had previously been convicted of drunken driving, so that in the circumstances the rule operated to deprive defendant of due process of law. Nowhere is it contended that defendant was not guilty of drunken driving.

At the start of the oral argument counsel for defendant suggested that it would perhaps be inappropriate for this Part of the Appellate Division to hear the appeal because my two colleagues sat in the Part when it heard the motion for leave to appeal. Under direct questioning the suggestion blossomed into a motion that the two judges disqualify themselves. The motion was summarily denied.

Counsel cited no authority, statutory or otherwise, for disqualification. None of the grounds set out in N.J.S. 2A:15--49, N.J.S.A., is applicable--kinship, prior representation of a party, prior opinion upon the matters in question, or personal interest in the litigation. No other ground suggests itself. As we said in Clawans v. Schakat, 49 N.J.Super. 415, 420, 140 A.2d 234 (1958), a judge is not required to withdraw from the hearing of a case upon the mere suggestion that he is disqualified to sit; indeed, it would be improper for him to do so unless the alleged cause of recusation is known by him to exist or be shown by proof to be true in fact.

Denial of leave to appeal from an interlocutory order or judgment is a not uncommon occurrence, particularly in light of what this court said in Romano v. Maglio, 41 N.J.Super. 561, 567--568, 125 A.2d 523 (1956). In denying leave the court does not, of course, presume to pass upon the merits of the cause in any respect, either as to the issues that may then suggest themselves or, surely, as to issues which may emerge after the matter has been fully heard at the trial level.

Counsel also complained that the Attorney General's office had requested the clerk to assign the appeal to this Part of the Appellate Division instead of Part B. This is not so; all that was done was to call the clerk's attention to the fact that Part A had previously considered the motion for leave to appeal. The practice has been for the clerk to assign an appeal to whatever Part has dealt with the case in any prior aspect. The reason is fairly obvious: the Part already knows something of the background of the case and there is a resultant saving of judicial time.

We address ourselves to the contention that the mere presence of the notation 'red' on the original complaint was prejudicial and denied defendant a fair trial because it served to acquaint the county judge of the previous drunken driving conviction. Initially, it may be observed that validated ('red') licenses may be issued in cases other than drunken driving. Indeed, most of them are. Under the New Jersey point system recently inaugurated by the Division of Motor Vehicles, a driver amassing 12 or more points within a three-year period dating from the latest violation becomes subject to a hearing before the Director on a rule to show cause why his driving privilege should not be revoked. Only moving violations such as speeding, careless or reckless driving, ignoring a traffic signal, leaving the scene of an accident, and the like, are charged against the driver's record. From 3 to 12 points may be charged against a driver; involvement in a fatal accident (if held responsible), or driving or permitting another to drive while under the influence of intoxicating liquors or drugs, carries the maximum. Accordingly, the word 'red' on the complaint could have covered any number of situations.

Dealing with the matter more fundamentally, it may be conceded that, in principle, a trial judge sitting in a quasi-criminal proceeding like the present one should not be apprised prior to his determination of guilt or innocence of the fact that the defendant had previously been convicted of an offense involving revocation of his license. See State v. Kociolek, 23 N.J. 400, 418--420, 129 A.2d 417 (1957). Although many of the provisions of the Motor Vehicle Act require that the trial judge know about a defendant's prior record--see, for example, N.J.S.A. 39:3--19.1 (omnibus registration), 39:3--80 (rubber tire equipment), 39:3--84.3 (overweight and oversize (except overloading)), 39:4--49 (tampering with vehicle), 39:4--50 (drunken driving), 39:4--52 (racing on highway), 39:4--128.1 (stopping or slowing down for...