State v. Radicchi

• Decision Date: 19 February 1963
• Docket Number: No. A--142,A--142
• Citation: State v. Radicchi, 188 A.2d 423, 78 N.J.Super. 286 (N.J. Super. App. Div. 1963)
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Phillip RADICCHI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 286

78 N.J.Super. 286

188 A.2d 423

The STATE of New Jersey, Plaintiff-Respondent, v. Phillip RADICCHI, Defendant-Appellant.

No. A--142.

Superior Court of New Jersey Appellate Division.

Argued Feb. 4, 1963.

Decided Feb. 19, 1963.

Thomas J. Osborne, Jr., Paramus, for appellant (Vaccaro & Osborne, Paramus attorneys, Thomas J. Osborne, Jr., Paramus, of counsel).

William C. Brudnick, Asst. Pros. of Bergen County for respondent (Guy W. Calissi, Bergen County Pros., attorney, William C. Brudnick, Hackensack, on the brief).

Before Judges CONFORD, GAULKIN and KILKENNY.

The opinion of the court was delivered by

KILKENNY, J.A.D.

The Bergen County Court dismissed defendant's appeal from a conviction of reckless driving by the Municipal Court of Rochelle Park on September 5, 1962, on the ground that defendant had not perfected his appeal in the manner required by the rules. There was no hearing on the substantive merit of the appeal. The present appeal is from the County Court's order of dismissal.

After a trial in the municipal court, defendant was found guilty of violating N.J.S.A. 39:4--96. The penalty imposed was revocation of his driving privileges for six months and costs in the sum of $3.

Although there is no transcript of the evidence in the municipal court, we requested an affidavit by defendant's attorney concerning the details of the offense charged and have been informed that it involved the operation of a motor vehicle on a school parking lot wherein there were only one parked vehicle and its occupant at the time. A bystander filed the complaint.

On September 6, 1962, the day following the conviction, defendant's attorney served a copy of notice of appeal to the Bergen County Court upon the municipal magistrate and obtained his acknowledgment of service thereof. On the same day he mailed a copy of the notice of appeal to the Bergen County Prosecutor and asked for an acknowledgment of service on the carbon copy of the letter. The prosecutor acknowledged service as requested on September 7, 1962.

Also on September 6, 1962 defendant's attorney addressed a letter to the clerk of the Bergen County Court at Hackensack and enclosed therein two copies of the notice of appeal, a check for $30 to cover costs, and an original and two copies of a form of order fixing a date for the hearing of the appeal. He requested that the appeal be filed immediately, that he be advised of the docket number, and that the order fixing date be transmitted to the judge for completion and then be returned to his office. This letter was evidently received because the clerk advised defendant's attorney as to the docket number and deposited the check to cover costs of the appeal. However, the clerk, for some unexplained reason, did not transmit to a judge for completion the order fixing a date for the hearing of the appeal. As a result, the order was not signed and, as a consequence, a copy thereof was never served on the prosecutor, as required by R.R. 3:10--8.

On November 2, 1962 the prosecutor moved to dismiss the appeal on the grounds that the defendant failed (1) to apply to the County Court for an order fixing a date for the hearing of the appeal, (2) to serve the prosecutor's office with notice of said date pursuant to R.R. 3:10--8; and (3) to file the notice of appeal in duplicate, with service acknowledged on one copy or with an affidavit of service annexed thereto, with the court from which the appeal had been taken. The County Court granted the prosecutor's motion and ordered the appeal dismissed.

R.R. 3:10--2 provides that an appeal from a municipal court to the County Court shall be taken by serving a copy of a notice of appeal upon the prosecuting attorney--in this case, upon the prosecutor--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. Thereupon the clerk of the court shall immediately forward one fully conformed copy of said notice to the clerk of the court to which the appeal is taken, for docketing.

Obviously, as the facts noted above indicate, defendant's attoney did not comply fully or in proper sequence with the procedural requirements of R.S. 3:10--2. The prosecutor was not served with a copy of the notice of appeal Prior to the filing of the notice of appeal with the municipal court. Instead, the magistrate was first served with a copy of the notice of appeal and then a copy was forwarded by mail to the prosecutor, who received it the following day. This was irregular. See State v. Newman, 36 N.J.Super. 506, 511, 116 A.2d 585 (App.Div.1955). The prosecutor's acknowledgment of service was not endorsed on one of the duplicate copies of notice of appeal required to be filed with the municipal court, nor was there annexed to one of the duplicates an affidavit showing service upon the prosecutor, in lieu of his acknowledgment thereof. Instead, defendant's attorney obtained an acknowledgment of service by the prosecutor on a carbon copy of a letter and then apparently placed this carbon copy upon its return in his own file and did not make it part of the court record. Seemingly, too, instead of filing duplicate copies of the notice of appeal with the municipal court, which would have then forwarded one fully conformed copy to the County Court for docketing, defendant's attorney served a copy upon the magistrate and then undertook the forwarding of two copies of the notice of appeal to the clerk of the County Court for docketing.

It is difficult to understand why the plain instructions in R.R. 3:10--2 were not followed. We can understand the unwillingness of the County Court to accept as an excuse for such noncompliance with the rule the explanation by defendant's attorney that he had followed the same irregular appellate procedure without objection on prior occasions. Previous tolerance of a violation of the rules is not a license to a continued nonobservance of the requirements.

However, the rules have been designed to facilitate the business of the courts and advance justice to the litigants. They 'may be relaxed or dispensed with by the court in any instance where it shall be manifest to the court that a strict adherence to them will work surprise or injustice.' R.R. 1:27A. This would seem to be such an instance. The appeal to the...