State v. LaResca

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: DREIER
• Citation: State v. LaResca, 631 A.2d 986, 267 N.J.Super. 411 (N.J. Super. App. Div. 1993)
• Decision Date: 13 October 1993
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John LaRESCA, Defendant-Appellant.

Page 411

267 N.J.Super. 411

631 A.2d 986

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

Superior Court of New Jersey Appellate Division.

Argued Sept. 21, 1993.

Decided Oct. 13, 1993.

Thomas M. Mulcahy, Bedminster, for appellant (Purcell, Ries, Shannon, Mulcahy & O'Neill, attys., Mulcahy and Pamela J. Minetto, on the brief).

Karimu F. Hill-Harvey, for respondent minor child (Hill-Harvey, on the brief).

No brief was filed on behalf of respondent State of New Jersey.

Before PRESSLER, DREIER and BROCHIN, JJ.

The opinion of the court was delivered by

DREIER, J.A.D.

Defendant appeals from a Law Division order affirming two decisions of the Irvington Municipal Court: the first denying his motion for an order that his guilty plea not be admissible in a civil matter, and the second refusing to reopen defendant's careless driving conviction based upon his guilty plea. We find that both decisions were dependent upon factual determinations which should not have been made without an evidential hearing, and therefore we remand this matter with directions to the trial court.

On April 30, 1991, defendant was involved in a motor vehicle accident in Irvington. He was issued a summons, signed by an Irvington police officer, for careless driving. N.J.S.A. 39:4-97. A week later defendant received seven additional summonses issued on the complaint of Karimu Harvey, Esq. who had been retained to represent a minor severely injured in the accident. Ms. Harvey thereafter requested that the summonses be reviewed by the Essex County Prosecutor's Office under its policy of scrutinizing accidents involving death or serious injury. In November 1991 the summonses were returned to the Irvington Municipal Court, and in December, counsel received notice of the first hearing, which was scheduled for January 23, 1992. At defendant's request, the municipal court adjourned the hearing and rescheduled the matter for a February 13, 1992 "conference." Defendant's attorney informed Ms. Harvey of the conference by two letters in January.

On February 6, 1992, a week before the conference, Ms. Harvey informed defense counsel, the municipal prosecutor and municipal court that she intended to "prosecute the traffic offenses charged against" defendant. ¹ The letter further informed all parties that Ms. Harvey could not attend the conference due to a prior commitment and requested that the trial judge set the matter down for trial on one of several available dates listed therein.

On February 11, 1992, defendant's attorney checked with the Irvington Municipal Court clerk concerning the status of the February 13 conference. He was informed that a "trial" was scheduled for the 13th and that the defendant should appear and be ready to proceed. Apparently, Ms. Harvey had not been informed that her request for an adjournment had been acted upon and apparently denied, and that the matter was proceeding to trial rather than for a conference two days hence.

The Irvington municipal prosecutor, the defendant and defense counsel appeared as directed before the Irvington Municipal Court on February 13, 1992. The municipal court judge requested that counsel confer while he dealt with other matters. Thereafter, counsel informed the court that defendant would plead guilty to careless driving and that the other charges would be dismissed as merged with the careless driving charge. The judge agreed. Defense counsel then immediately requested that the plea of guilty not be admissible in a subsequent civil proceeding. According to his certification, defense counsel had already agreed with the municipal prosecutor concerning the non-evidential nature of the plea. The record shows the following:

THE COURT: Just for the record, this case has been before the Court at least on two other occasions. There was an accident, an individual was injured seriously. I have talked to all of the attorneys involved in the case and it's my understanding that the person is not dead, it wasn't fatal, but was injured. I have no problems with the careless driving plea based on that. The status of the injury has been determined. A plea of guilty to careless driving is accepted.

[DEFENDANT'S ATTORNEY]: Your Honor, I make one other request that pursuant to the Municipal Court Rule, whose number escapes me at the moment, I would like the plea of guilty not to be used at a subsequent civil proceeding which I anticipate will be filed as a result of the personal injury that did occur as a result of the accident.

THE COURT: [Mr. Prosecutor?]

[THE PROSECUTOR]: No objection to a sealing.

THE COURT: You send it in on a motion and I'll sign it for sealing.

[DEFENDANT'S ATTORNEY]: Thank you, Your Honor.

On February 21, 1992, as instructed, defense counsel submitted a motion to have the plea entered on a non-evidential basis pursuant to R. 7:4-2(b). Ms. Harvey received notice of the disposition of the case at or about the time defense counsel forwarded his motion to seal the record of the plea. She advised the municipal court by letter that she objected to the manner of disposition of defendant's charges and requested that the "matter be opened and set down for trial." She also filed a motion for leave to appeal to the Law Division, but the Law Division adjourned any argument on the motion until after the scheduled hearing on the motion for sealing then pending in the municipal court. On April 2, 1992, defense counsel and Ms. Harvey appeared before the Irvington Municipal Court. ² After a brief discussion concerning the propriety of a motion to reopen, the matter was adjourned until May 7 to permit briefing. On the adjourned date, and after oral argument, the municipal court judge denied Ms. Harvey's motion to reopen, and also denied defendant's motion to have his plea be non-evidential in a civil proceeding. Having prevailed on this aspect of her motion, Ms. Harvey withdrew her pending appeal in the Law Division. Defense counsel then appealed, contending that either the municipal court plea should remain non-evidential in a civil proceeding or defendant should be permitted to withdraw his guilty plea and proceed to trial on the careless driving charge.

Ordinarily, the withdrawal of the plea would require that all of the pending charges be reinstated. However, the municipal court judge determined specifically that the additional complaints were duplicative of the careless driving charge, and that the additional complaints would be dismissed. Ms. Harvey's appeal from this ruling was dismissed. We need not therefore consider in detail defendant's challenge to the issuance of the seven traffic summonses by Ms. Harvey. ³ Even if the careless driving conviction is vacated, the seven private complaints would not be reinstated.

Defendant raises five arguments on this appeal.

POINT I

Defendants' right to a fundamentally fair trial pursuant to the due process clause of the Fifth and Fourteenth Amendments is violated as a result of this particular interest complainant's role as private prosecutor.

(A) Defendant LaResca assigns error to the Superior Court dicta that the issue of whether or not Ms. Karimu Harvey may proceed as private prosecutor was irrelevant to the proceedings before it and not an issue on appeal.

(B) Ms. Karimu Harvey failed to obtain the proper consent of the prosecutor to proceed as a private prosecutor in this matter.

(C) Ms. Harvey's position as the private prosecutor for criminal charges she leveled against Defendant LaResca evidences a clear conflict of interest that contravenes Defendant LaResca's right to a fundamentally fair trial.

POINT II

Defendant LaResca seeks specific performance of the plea agreement entered into with the Irvington Municipal Prosecutor and consented to by the Municipal Court.

(A) Defendant assigns as error the finding by the Superior Court that the Municipal Court Judge did not affirmatively rule on the non-evidential use of Defendant LaResca's plea at the February 13, 1992 hearing.

POINT III

Defendant LaResca's guilty plea was conditioned upon approval of his request that the plea be non-evidential in any subsequent civil matter.

POINT IV

Karimu Harvey acting as counsel for [injured minor] waived any rights available pursuant to N.J.S.A. 39:5-52 by failing to appear at the Municipal Court hearing on February 13, 1992.

(A) Any obligation to contact Ms. Harvey prior to the acceptance of any plea arrangement is borne by the municipal prosecutor of the court, not Defendant LaResca.

POINT V

If this court should deny Defendant LaResca's request for specific performance of all aspects of the plea agreement, Defendant LaResca moves in the alternative to withdraw his guilty plea and requests that the matter be remanded to the Municipal Court for further proceedings.

Rather than treat defendant's points one by one, we will proceed directly with the issues that we see as dispositive. We must initially consider whether the municipal court judge could have considered both the plea agreement and the issue of the non- evidential nature of the plea without notice to the alleged victim's attorney that the February 13, 1992 proceeding was in fact a dispositional hearing. We must then review the factual determinations made by the trial judges. The municipal court and Law Division judges had to decide whether defendant's request through his counsel that the plea be non-evidential was either (a) part of the plea agreement between defense counsel and the prosecutor, or (b) understood by defendant to be a material part of his plea. ⁴ Lastly, even if the plea agreement did not contain the non-evidential condition, and the condition was not understood by defendant to be a part of his plea, the municipal court judge had to determine whether to grant defendant's request under the liberal standard of R. 7:4-2(b), described in State v. Faunce, 244 N.J.Super. 499, 502, n. 2, 582 A.2d 1268 (App.Div.1990).

A.

Treating the first question, we...