State v. Sirvent

• Decision Date: 07 January 1997
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Scott J. SIRVENT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 279

296 N.J.Super. 279

686 A.2d 1202

STATE of New Jersey, Plaintiff-Respondent, v. Scott J. SIRVENT, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Dec. 10, 1996.

Decided Jan. 7, 1997.

Anthony M. Arbore, Ledgewood, for appellant (Forster & Arbore, attorneys; Mr. Arbore and Robert G. Wilson, on the brief and reply letter brief).

Michael F. Jan, Assistant Morris County Prosecutor, for respondent (John B. Dangler, Morris County Prosecutor, attorney; Joseph Connor, Jr., Assistant Prosecutor, on the letter brief).

Before Judges PRESSLER, STERN and WECKER.

The opinion of the court was delivered by

STERN, J.A.D.

Defendant, Scott J. Sirvent, appeals from an order of the Law Division denying his motion to dismiss the State's appeal from orders of the Municipal Court of Parsippany-Troy Hills dismissing motor vehicle complaints filed against him, denying his "Motion to Dismiss the summonses and complaints against defendant as not timely filed under N.J.S.A. 39:5-3," and remanding the case to the municipal court for trial. Defendant contends that the municipal complaints were barred as untimely under N.J.S.A. 39:5-3, that the doctrine of equitable estoppel cannot be used to render them timely as held by the Law Division and that, in any event, the State's appeal to the Law Division from the dismissal of the complaints by the municipal court was itself untimely.

The alleged offenses occurred on September 22, 1994 when complaint-summonses for driving while intoxicated ( N.J.S.A. 39:4-50), careless driving ( N.J.S.A. 39:4-97), and driving without a license ( N.J.S.A. 39:3-29), were issued to the driver of an automobile stopped by a Parsippany police officer. When defendant's brother Joseph J. Sirvent (in whose name the tickets were issued) arrived for the municipal court proceedings on December 7, 1994, the issuing officer noticed, and the prosecutor reported, that the person "currently in court" "was not the person who was stopped by the officer." The prosecutor also indicated that he would "be moving to amend this charge of the moment to appear as John Doe because we are concerned about the possibility of the statute of limitations running on this matter," but added "[w]e suspect who the other individual is" and that "[w]hen the other individual is found we will proceed on these charges and I anticipate other charges as well."

The municipal court judge granted the prosecutor's motion and amended the complaints against "Joseph J. Sirvent" to name "John Doe." In his brief before us, defendant states that "after an investigation by the police, the motor vehicle charges were brought against Scott Sirvent." He cites a complaint-summons dated December 13, 1994, charging Scott J. Sirvent with obstructing justice, N.J.S.A. 2C:29-1, and volunteering false information to a police officer to hinder his own prosecution, N.J.S.A. 2C:29-3b(1). In his opinion the Law Division judge also found that "the motor vehicle summons were issued to defendant Scott Sirvent" on December 13, 1994. While the motor vehicle complaints apparently were never amended to charge this defendant by name, the new complaint-summons, after charging the title 2C offenses, stated "[a]lso MV Summons B151867, B151868, B151869 for 39:4-97, 39:3-29[,] 39:4-50." These are the numbers of the motor vehicle tickets originally issued in the name of Joseph J. Sirvent, which had been amended to charge "John Doe."

Defendant expressly acknowledges that he was the person who was given the summonses after being stopped on September 22, 1994. Nevertheless, on November 15, 1995, he was successful in convincing a municipal court judge to dismiss the motor vehicle charges because they were not timely filed against him in his own name. The State filed an appeal in the Law Division on December 5, 1995, although the orders of dismissal of the case against "Scott J. Sirvent" were not executed or entered by the municipal court until December 14, 1995. Defendant argues that the appeal was untimely following the November 15, 1995 decision and that the Law Division erred in reversing the dismissal.

I.

We deal first with the appealability of the municipal court dismissals. Defendant's argument addressed to the appealability is twofold. He contends that because the municipal court judge noted the dismissals on the back of the motor vehicle complaints on November 15, 1995, the prosecutor's appeal was untimely because it was filed beyond the ten days in which an appeal had to be taken pursuant to R. 3:24. He also contends that the subsequent dismissal orders of December 14, 1995 were a nullity by virtue of the prior dismissals, and that the December 5, 1995 notice of appeal could not apply to a subsequently entered dismissal.

Defendant's arguments have some facial appeal. R. 1:3-4(c) prohibits enlargement of the ten-day period for appeals under R. 3:24. However, the reference in R. 1:3-4(c) to the prohibition of enlargement of time refers to "R. 3:24 (appeals to the Law Division from interlocutory orders of courts of limited criminal jurisdiction)" (emphasis added).

As we explained in State v. Burten, 207 N.J.Super. 53, 57-62, 503 A.2d 907 (App.Div.1986), the reference to R. 3:24 in R. 1:3-4(c) was adopted when R. 3:24 permitted only applications for review of interlocutory orders of a municipal court and at a time when only a defendant could appeal from a final judgment of a municipal court, pursuant to R. 3:23. See R. 3:23 ("Appeals from Judgments of Conviction in Courts of Limited Criminal Jurisdiction"). When the Supreme Court amended R. 3:24 in 1979 to permit the State to appeal from pre-trial or post-trial dismissals, following the evolution of case law concerning such appeals from dispositions that have no jeopardy consequences, ¹ the parenthetical reference to R. 3:24 in R. 1:3-4(c) was not amended to delete the reference to interlocutory appeals. As a result, in Burten, supra, we had to consider the impact of the parenthetical reference in R. 1:3-4(c) to interlocutory orders.

We concluded that there was no preclusion to an enlargement of the time in which the State could appeal from the dismissal of a complaint embodied in a final judgment. See Burten, supra, 207 N.J.Super. at 59-60, 503 A.2d 907. We stated that:

In view of the differences between interlocutory appeals and appeals from final judgments, it is not surprising that in the usual case in which the defendant is the appellant from a municipal court, the rules draw a distinction between enlargement of the time for appeal to the Law Division from interlocutory and final orders of the municipal court. R. 1:3-4(c) prohibits the enlargement of time for appeals to the Law Division from interlocutory orders by a defendant as well as the State. On the other hand a defendant may upon a showing of good cause and the absence of prejudice obtain an extension of not more than 20 days to appeal to the Law Division from a final municipal court judgment. R. 1:3-4; R. 3:23-2. While it would be desirable for the rules to establish expressly what is the limitation on enlargement of the time for the State to appeal, in the absence of such a rule we hold that the State upon demonstrating good cause and the absence of prejudice may obtain an enlargement of not more than 20 days, the same period afforded a defendant, to appeal from a pre-trial or post-trial judgment of a court of limited criminal jurisdiction dismissing a complaint.

[Id. at 61-62, 503 A.2d 907. ² ]

R. 3:23-2 was thereafter amended, effective January 1, 1987, to allow a defendant twenty days to appeal from a judgment of conviction, instead of ten days enlargeable by another ten days to a period not exceeding twenty days. In 1992, the reference to R. 3:23-2 in R. 1:3-4(b) was deleted, and relaxation of the twenty-day period was prohibited by its incorporation into R. 1:3-4(c). In the interim, R. 1:3-4(c)'s parenthetical reference to "interlocutory orders" with respect to R. 3:24 remained unchanged.

R. 3:24 was again amended on June 9, 1989, effective on June 19, 1989. At that time the Supreme Court authorized municipal court judges to entertain motions to suppress arising out of warrantless searches with respect to matters which can be tried within their jurisdiction. See also R. 3:5-7(a). The amendment to R. 3:24 implemented that jurisdiction by further amending R. 3:24(b) to permit the prosecutor to appeal from the grant of a motion to suppress as if it were a final judgment. As to such appeals, the Supreme Court also provided, in R. 3:24(c), that the prosecutor could appeal from the grant of a motion to suppress within thirty days after entry of the order suppressing evidence. See R. 3:24(c). R. 3:24(d) was simultaneously adopted with respect to the scope of an appeal to the Law Division from the grant of a motion to suppress.

As with the amendment to R. 3:24 in 1979, the reference in R. 1:3-4(c) to interlocutory orders was not amended at the time of the 1989 amendments. Hence, we hold that the approach taken in Burten with respect to the interrelationship between R. 1:3-4(c) and R. 3:24 is still viable, and that the ten-day period in which the State may appeal from a pretrial dismissal of a municipal court complaint may be enlarged to a maximum of twenty days. ³

II.

We reject defendant's arguments that the appeal was untimely even under the Burten rationale with respect to final judgments. The Law Division judge ruled that, given the 1987 amendment to R. 3:23-2 and the Burten rationale, the State should have a similar twenty-day period in which to appeal under R. 3:24. Alternatively, the judge held that there was "good cause" for the ten-day extension and an "absence of prejudice" because defendant had been aware of the charges.

Defendant contends that the municipal court complaints were dismissed on November 15, 1995 when the municipal court judge noted the dismissals on the back of the motor vehicle complaints...