State v. Vaughner

• Citation: 185 A.2d 227,76 N.J.Super. 594
• Decision Date: 05 November 1962
• Docket Number: A-61,No. A-59,A-59
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Barbara VAUGHNER, Defendant-Appellant. to . Appellate Division
• Court: New Jersey Superior Court – Appellate Division

Page 594

76 N.J.Super. 594

185 A.2d 227

STATE of New Jersey, Plaintiff-Respondent, v. Barbara VAUGHNER, Defendant-Appellant.

No. A-59 to A-61.

Superior Court of New Jersey.

Appellate Division.

Argued Oct. 1, 1962.

Decided Nov. 5, 1962.

Arthur E. Dienst, Hillside, for appellant.

C. William Caruso, Legal Assistant Prosecutor, for respondent (Brendan T. Byrne, County Prosecutor of Essex County, attorney; C. William Caruso, Newark, of counsel and on the briefs.)

Before Judges CONFORD, KILKENNY and LEONARD.

The opinion of the court was delivered by

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

This is an appeal from a judgment of the Essex County Court adjudicating defendant guilty of being a disorderly person under N.J.S. 2A:170--26, N.J.S.A.

The controversy herein arose out of a fight between defendant and Louise, Tucker, both of whom were tenants in a three-story house in Newark. Louise Tucker and her family occupied the first floor, while defendant and her husband occupied the second floor. On February 3, 1961, at a point about half way up the stairway between their respective apartments, the altercation ensued and continued up the stairway and into defendant's apartment. A detailed recital of the respective factual contentions of each will serve no useful purpose. Suffice to say, each testified that the other was the aggressor in the assault.

Originally, each complained against the other for disorderly conduct in the Municipal Court of Newark, charging assault and battery, and both were found guilty. Both appealed and obtained a trial De novo in the County Court. After a plenary hearing thereon, defendant was found guilty and Louise Tucker not guilty.

Defendant urges three grounds for reversal. The first is that her constitutional and statutory rights were violated by (a) the failure of the official county prosecutor to prosecute; (b) the manner in which defendant was forced to testify against herself; and (c) the assertion by the State of contradictory positions in the trial below.

At the trial De novo before the County Court, counsel for defendant, as well as opposing counsel, expressly consented to the consolidation of the two complaints for trial, and to the prosecution of each by private counsel of the respective complainants. Pursuant to this consent, defendant first took the stand and presented her complaint against Louise Tucker; she and her witnesses testified on direct examination in response to her own attorney's questions and then answered, without objection, the cross-examination of opposing private counsel. Thereafter, Louise Tucker and her witnesses were heard on her cross-complaint and then cross-examined by defendant's private counsel. An assistant county prosecutor was present during the entire trial. When he attempted to supplement the cross-examination of Mrs. Tucker, defendant's trial attorney objected and insisted that by agreement of the parties only private counsel were to represent the State. The trial court sustained the objection.

Defendant contends that R.R. 3:10--10(d) and R.R. 3:10--13(c) provide that in all appeals thereunder the prosecuting attorney Shall be the county prosecutor (emphasis added). That the rule so provides cannot be disputed. Plaintiff contends that the rule does not apply herein because this was an appeal from a conviction of being a disorderly person and not from a conviction of a crime. We do not agree with plaintiff's argument on this point. R.R. 3:10--1 pertains to reviewing a judgment of conviction in 'a criminal cause or proceeding.' Disorderly conduct is a minor offense, quasi-criminal in essence and subject to the procedural rules governing criminal prosecutions. State v. Labato, 7 N.J. 137, 150, 80 A.2d 617 (1951). An appeal to the County Court from a municipal court conviction for disorderly conduct is controlled by R.R. 3:10 et seq. See City of Passaic v. Passaic County, 54 N.J.Super. 254, 259, 148 A.2d 640 (App.Div.1959). Thus, we conclude that this rule contemplates that the county prosecutor or his assistant shall prosecute all such appeals and that the practice of allowing private counsel to prosecute the same is improper. However, in the instant matter, defendant not only consented thereto but vigorously opposed an attempt of the assistant prosecutor to participate in the proceedings. A careful review of the record herein fails to disclose any evidence of prejudice to defendant by reason of the course pursued, and in our judgment it would be unjust to...