State v. Polasky
| Decision Date | 27 October 1986 |
| Citation | 524 A.2d 474,216 N.J.Super. 549 |
| Parties | STATE of New Jersey v. Ronald POLASKY, Defendant. |
| Court | New Jersey Superior Court |
Terri-Anne Duda, Asst. Prosecutor, for the State (Stephen G. Raymond, Prosecutor).
Lisa J. Rodriquez, Haddonfield, for defendant (Tomar, Seliger, Simonoff, Adourian & O'Brien, attorney).
HAINES, A.J.S.C.
Ronald J. Polasky was charged with careless driving and failure to have a driver's license in his possession. Through counsel he served a demand for discovery upon the municipal prosecutor and was then advised by the court clerk that discovery would not be provided. The demand was repeated in a letter to the prosecutor which also advised that defense counsel would appear on the trial date and, if not provided with the requested discovery, would move for a dismissal of the complaints. The charges against the defendant arose from a two-car accident. Defense counsel had reason to believe in the existence of an independent witness to the accident; the name and address of that witness was sought as part of the discovery demand. The defense also wished to examine the police report and the back of the motor vehicle summons containing the arresting officer's comments.
The prosecutor answered the discovery demand by telephone and refused to respond, relying on State v. Roth, 154 N.J.Super 363, 381 A.2d 406 (App.Div.1977). Defense counsel, as promised, moved for dismissal by reason of the refusal. The motion was denied and the present interlocutory appeal followed.
This opinion concludes that the Court below should have dismissed the charges against the defendant or provided other relief.
Prior to 1978, the relevant Rules limited the discovery right to "criminal actions." State v. Roth, 154 N.J.Super. 363, 381 A.2d 406 (App.Div.1977), addressing that Rule, held that drunken driving was not a crime and that defendants charged with that offense had no right to discovery. Roth cited with approval, State v. Smithson, 150 N.J.Super. 148, 375 A.2d 268 (App.Div.1976), which held that [at 150, 375 A.2d 268]
Our discovery rules were amended in 1978. R. 7:4-2(g) now reads as follows:
Depositions and discovery in any case in which the defendant may be subject to imprisonment or other consequence of magnitude if convicted shall be as provided by R. 3:13-2 and R. 3:13-3 provided that the municipality in which the case is to be tried has a municipal prosecutor.
R. 3:13-2 permits the taking of certain depositions, R. 3:13-3, the discovery, inspection and copying of various records, statements and reports, including police reports, by both state and defense. The opening paragraph of the latter Rule begins:
Upon written request by the defendant, the prosecuting attorney shall permit defendant to inspect and copy or photograph....
Roth is no longer the law with respect to discovery, at least in drunk driving cases. In State v. Utsch, 184 N.J.Super. 575, 446 A.2d 1236 (App.Div.1982), the court held that a defendant in a drunk driving case was entitled to discovery and said that the holding in Roth "must be regarded as having been effectively overruled by the 1978 amendment of the municipal court discovery Rule...." [at 579-580, 446 A.2d 1236] The right to discovery in other municipal court cases has not been decided. Under the present version of R. 7:4-2(g) it is available whenever a defendant may be subjected to "imprisonment or other consequence of magnitude, if convicted." It is apparent, in the present case, that Polasky met this test and was therefore entitled to have the requested discovery.
Polasky is charged with careless driving in violation of N.J.S.A. 39:4-97. If convicted, he is subject to the penalties set forth in the following chapters and sections of Title 39:
(1) 4-104: A person violating a section of this article shall, for each violation, be subject to a fine of not less than $50.00 or more than $200.00 or imprisonment for a period not exceeding 15 days, or both....
(2) 5-31: The director or any magistrate before whom any hearing under this subtitle is had may revoke the license of any person to drive a motor vehicle, when such person shall have been guilty of such willful violation of any of the provisions of this subtitle as shall, in the discretion of the magistrate, justify such revocation.
(3) 5-30(a): Every registration certificate and every license certificate to drive motor vehicles may be suspended or revoked, and any person may be prohibited from obtaining a driver's license or a registration certificate ... by the Director for a violation of any of the provisions of this Title or on any other reasonable grounds....
(4) 5-30.5, 6, 7, & 8 (providing for the assessment of "points" for motor vehicle offenses): Except for good cause, the director shall suspend for a period of no less than 30 days and no more than 180 days ... the license to operate a motor vehicle of any person who accumulates ... [a certain number of] points.
(5) 5-36: Unless otherwise expressly provided in this subtitle, any person who shall be convicted of a violation of any of the provisions of this subtitle, and upon whom a fine shall be imposed, shall, in default of payment thereof, be imprisoned in the county jail or workhouse of the county where the offense was committed, but in no case shall such imprisonment exceed one day for each $20.00 of the fine so imposed, no shall such imprisonment exceed, in any case, a period of 3 months.
These are serious penalties. Furthermore, if the defendant's license is suspended or revoked he becomes subject to numerous additional severe penalties as set forth in the following chapters and sections of Title 39:
(a) 3-40: (paraphrased): provides, in pertinent part, that any person whose driver's license has been suspended or revoked or who operates a motor vehicle having a revoked registration, shall be subject to a fine of $500. for the first offense, $750. and 5 days imprisonment for the second offense, $1,000. and 10 days imprisonment for the third offense and, for any such offense, at the court's discretion, a license suspension not to exceed 6 months.
(b) 3-10a: The Director of Motor Vehicles may charge a fee of $30.00 for the restoration of any license which has been suspended or revoked by reason of the licensee's violation of any of the provisions of Title 39 or any regulation adopted pursuant thereto.
(c) 5-30(f): In addition to any other final agency action, the director shall require any person whose privileges to operate a motor vehicle ... are suspended or who has been prohibited from obtaining a license, pursuant to this section, to be reexamined to determine the person's ability to operate a motor vehicle ... prior to regaining or obtaining any driving privileges in this State.
(d) 5-35: Any person, whose driver's license ... has been suspended or revoked, who fails to return it ... to the director, ... within five days of the date of suspension of revocation ... or who fails to surrender it ... upon demand of an authorized representative of the Division of Motor Vehicles, member of the State Police or other police officer who has been directed to secure possession thereof, shall be fined not more than $25.00.
Polasky was also charged with failure to have a license in his possession, contrary to N.J.S.A. 39:3-29, a charge which, pursuant to that section of the motor vehicle law, subjects him to a fine not exceeding $100.00 unless he exhibits a valid license to the judge of the municipal court, in which case he may be subject to court costs only.
It is apparent that the refusal of the municipal prosecutor to comply with the discovery request was wrong. It was based upon Roth, a nine-year old decision made inapplicable by the amendment to our discovery rules adopted eight years ago. The emasculating effect of the new Rule on Roth was clearly stated in Utsch four years ago. The charges against the defendant, by virtue of the numerous cited statutory provisions, subject him to imprisonment, loss of license and fines. Either imprisonment or loss of license is a "consequence of magnitude." Rodriguez v. Rosenblatt, 58 N.J. 281, 295, 277 A.2d 216 (1971); State v. Sweeney, 190 N.J.Super. 516, 524, 464 A.2d 1150 (App.Div.1983).
The prosecutor argues that the prospect of imprisonment and, presumably, license suspension, is remote. That is not the test. The question is simply whether the defendant is "subject to" a "consequence of magnitude, if convicted." This does not and should not leave room for speculation. Were the Rule otherwise, an impossible pretrial and prediscovery assessment of the defendant's prospects would have to be made by the prosecutor or the defendant or both, and, ultimately, by the court, in order to decide whether discovery was available.
The discovery rules are designed to promote fairness. They...
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...consequence The demand for discovery must be served upon the prosecutor who has the responsibility to answer. State v. Polasky, 216 N.J.Super. 549, 524 A.2d 474 (Law Div.1986); State v. Malsbury, 186 N.J.Super. 91, 451 A.2d 421 (Law Div.1982), disapproved on other grounds, 198 N.J.Super. 47......
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...in evidence the material not disclosed, or it may enter such other order as it deems appropriate. See State v. Polasky, 216 N.J.Super. 549, 524 A.2d 474 (Law Div.1986) (discussing the problems of discovery in the municipal courts and the municipal prosecutor's Here, as in an overwhelming ma......