State v. Newman

• Decision Date: 23 August 1955
• Docket Number: A--393,A--394,Nos. A--395,s. A--395
• Citation: 36 N.J.Super. 506,116 A.2d 585
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Paul NEWMAN, Paul Newman and Amidio Bermudez, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 506

36 N.J.Super. 506

116 A.2d 585

STATE of New Jersey, Plaintiff-Respondent, v. Paul NEWMAN, Paul Newman and Amidio Bermudez, Defendants-Appellants.

Nos. A--395, A--394, A--393.

Superior Court of New Jersey Appellate Division.

Argued Aug. 8, 1955.

Decided Aug. 23, 1955.

Robert O. Brokaw, Asst. Pros., Somerville, for plaintiff-respondent (Leon Gerofsky, Pros. of Somerset County, Somerville, attorney).

Michael Breitkopf, Newark, for defendants-appellants (Arthur J. Breitkopf, Newark, attorney).

Before Judges CONFORD, SULLIVAN and KNIGHT.

The opinion of the court was delivered by

KNIGHT, J.S.C. (temporarily assigned).

Defendants were charged with being disorderly persons and were convicted in the municipal court. Their appeals were dismissed by the County Court for failure to perfect said appeals in accordance with the provisions of R.R. 3:10--2 and R.R. 3:10--8. The propriety of the dismissals is the subject of this appeal.

Defendant Newman was convicted on October 25, 1954, in the municipal court on a complaint charging him with being a disorderly person in violation of a township ordinance. On November 6, 1954 notice of appeal was filed with the Clerk of the County of Somerset after first being sent to the municipal clerk. A copy of the notice of appeal was never served upon any prosecuting attorney. On December 2, 1954 said defendant obtained an order fixing December 17, 1954 as the date for the hearing of the appeal. No written notice of the date fixed for the hearing was served on any prosecuting attorney.

On November 9, 1954 defendant Newman was convicted for violation of N.J.S. 2A:170--29, N.J.S.A. On November 17, 1954 notice of appeal from said conviction was filed in the office of the Clerk of the County of Somerset after prior filing with the municipal clerk. A copy of the notice was never served upon any prosecuting attorney. On November 24, 1954 defendant obtained an order from the County Court fixing December 17, 1954 as the date of hearing on the appeal. No written notice of date of hearing was served on any prosecuting attorney.

Defendant Bermudez was convicted in the municipal court for violation of N.J.S. 2A:170--29, N.J.S.A. on November 9, 1954. Notice of appeal was filed on November 17, 1954 in the office of the Clerk of Somerset County. A copy of the notice of appeal was never served upon any prosecuting attorney. On December 2, 1954 an order was obtained fixing January 7, 1955 as the date for the hearing on the appeal. No written notice of the date fixed for the hearing was served on any prosecuting attorney.

On December 8, 1954 defendant Newman's attorney was served with a written notice of motion to dismiss Newman's appeals for failure to comply with R.R. 3:10--2; R.R. 1:3-- 1(c) and R.R. 3:10--8. The motion was returnable December 17, 1954. A similar notice of motion was served with respect to Bermudez' appeal on December 24, 1954, returnable January 7, 1955. The County Court, after argument, granted the motions to dismiss on February 18, 1955. Hence this appeal.

R.R. 3:10--2 provides that

'* * * The appeal shall be taken by serving a copy of a notice of appeal upon the prosecuting attorney * * * and by filing the notice in duplicate with service acknowledged on one copy, or with an affidavit of service annexed thereto, with the court from which the appeal is being taken. * * *'

Further, in a criminal cause the time allowed for taking an appeal from an inferior court is ten days. R.R. 3:10--5; R.R. 1:3--1(c). In addition, within ten days after filing the notice of appeal, the appellant must apply for an order fixing the date of the hearing. Written notice of the date of the hearing must be served on the prosecuting attorney at least ten days before the date set for the hearing. Should there be failure to give the required notice, the appeal is to be dismissed. R.R. 3:10--8.

That both service of a notice of appeal and the filing thereof are required to perfect an appeal was established in In re Pfizer's Estate, 8 N.J.Super. 6, 73 A.2d 192 (App.Div.1950), reversed on other ground 6 N.J. 233, 78 A.2d 80 (1951), where the court construed R.R. 1:2--8(a) (then Rule 1:2--4(a)), the language of which pertaining to service of a notice of appeal and filing of the same is similar to R.R. 3:10--2. In that case the Appellate Division said:

'We are satisfied that both the service of the notice of appeal and the filing of the notice are requisite to complete the appeal; that both these steps should be taken within the period of 45 days. * * *'

8 N.J.Super., at page 9, 73 A.2d at page 194. The Supreme Court said:

'Both service and filing must be complied with within time, which, in the instant case, was 45 days.' 6 N.J., at page 237, 78 A.2d at page 82.

See also In re Mayor, etc., South River, 27 N.J.Super. 109, 111, 98 A.2d 900 (Law Div.1953).

It is clear that the defendants did not perfect their appeals in accordance with the rules. They never served the prosecutor with a copy of the notice of appeal nor did they serve the prosecutor with written notice of the date fixed for the hearings. The fact that the prosecutor may have known of the defendants' appeals is not a substitution for compliance with the rules. Defendants invoke, however, R.R. 1:27B which provides that on motion the court may extend the time to permit an act to be done if the failure to act within the specified time 'was the result of excusable neglect; * * *' R.R. 1:27B further provides that the...