State v. Ross
| Decision Date | 14 March 1983 |
| Citation | 458 A.2d 1299,189 N.J.Super. 67 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Marie D. ROSS, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Marie D. Ross filed a pro se brief.
Irwin I. Kimmelman, Atty. Gen. for plaintiff-respondent (George L. Schneider, Essex County Prosecutor, of counsel; Olivia Belfatto, Asst. Essex County Prosecutor, on the letter brief).
Before Judges MICHELS, PRESSLER and TRAUTWEIN.
The opinion of the court was delivered by
PRESSLER, J.A.D.
Defendant Marie D. Ross appeals from her conviction by the Law Division on a trial de novo of two violations of the noise control ordinance of the Town of Belleville. 1 We reverse the convictions because of the egregious irregularities attending the municipal court process.
Defendant Ross and her family are next door neighbors of the Montagna family. It appears that a considerable degree of hostility had developed between the families for some months prior to the episode here in question because of the Ross' ownership of several German Shepherd dogs who were regularly let outdoors in the late night and early morning hours and who, by their loud and persistent barking, disturbed the peace of the neighborhood and frequently awoke sleeping members of the Montagna family. On the night of July 27, 1980 these hostilities apparently exploded when, so it was variously alleged, the adult Montagnas again complained to defendant's husband, who was outdoors with the dogs. Apparently some sort of fracas, at least verbal and perhaps physical, ensued, and ultimately various members of the two families signed complaints against each other in the Belleville municipal court charging each other with a variety of minor offenses.
Among the plethora of complaints then filed, and apparently thereafter filed as the interfamily enmities escalated, are the two here in issue charging defendant with violations of the Belleville noise control ordinance prohibiting "the keeping of any animal or bird which by causing frequent or long continued noise shall disturb the comfort or repose of any person in the vicinity." One complaint was sworn to by Frank Montagna and the other by his wife Rita Montagna. Each charged defendant with the identical conduct allegedly constituting a violation of the ordinance, namely, "allowing her dogs to continually bark disturbing the entire Montagna family" on July 27, 1980 at 11:15 P.M. Each was captioned in the name of the respective complainant versus defendant. A summons was issued on each of the complaints. Inexplicably, both summonses were issued over the signature of the respective complaining witness. Neither was signed or issued by a judicial officer, court clerk, deputy court clerk or even a police officer.
Ultimately a trial was conducted in the Bloomfield Municipal Court, and defendant was convicted on both complaints. Sentence, although not specifically pronounced, was suspended. Defendant then appealed to the Law Division de novo and on the record pursuant to R. 3:23-8. After hearing oral argument from defendant, who appeared pro se, and from the prosecutor, the Law Division judge affirmed the convictions on the ground that
I find there's proof upon which the [municipal] judge could have based his and did base his decision to find you guilty. It's not for me to find you guilty. It's not for me to substitute my judgment for that of [the municipal judge].
On her appeal to this court defendant argues first that she was denied a fair and impartial trial by reason of "ex-parte communications" between the municipal court judge and the complaining witness. It appears, however, that the communications to which she refers consisted of a colloquy on the record between the judge and the complaining witness on a scheduled trial date on which no member of the Ross family appeared despite proper notification. The colloquy did not materially concern the merits of the pending complaints and was altogether unexceptionable. There is no merit either in this issue or in the second issue raised by defendant, namely, the claim that she was denied the right to present witnesses in her behalf. That claim apparently derives from the municipal court judge's witness sequestration order. Our review of the record persuades us, however, that there was no impingement on defendant's right to fully present her defense.
The last of the issues defendant raises does, however, have substantial merit and the prosecutor so concedes. The issuance of two separate complaints and the separate convictions on each constituted an obvious violation of the constitutional guarantee against double jeopardy. There was clearly only one offense here involved and only a single violation of the ordinance, to wit, permitting the dogs to bark at 11:15 P.M. on July 27, 1980. That single offense is not multipliable by the number of people disturbed by the barking dogs. That is fundamental, and the State accordingly urges the dismissal of one of the complaints.
We cannot, however, sustain either of the convictions because of an even more basic defect in the proceedings, not raised by the parties. In our view, the issuance of the summonses here by the complaining witnesses constitutes so egregious a violation of the underlying principles of proper practice as to require the reversal of both convictions.
To begin with, we are constrained to point out that the proceedings here were quasi-criminal in nature. That fundamental predicate of these proceedings appears to have been entirely overlooked in its institution, first in the improper captioning of the complaints and summonses in the names of the respective complaining witnesses as plaintiffs and then, even more appallingly, in the issuance of the summonses on the authority of the complaining witnesses. 2
Because of the nature of the proceedings here, process was required generally to conform to the requirements applicable to indictable offenses. See R. 7:3-1. Among those requirements is the mandate that process issue only by a judge or clerk or deputy clerk of his court and only if the official issuing process is satisfied from the complaint that there is probable cause to believe that defendant has committed an offense. R. 3:3-1(a), 3:3-2. In lieu of the primary process of a warrant, a summons may issue if the official is satisfied that the accused will appear in response thereto and none of the other warrant-mandating criteria of R. 3:3-1(b) are present. The only modification in this procedure in respect of nonindictable...
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