State v. Ward

• Decision Date: 03 July 1997
• Citation: 303 N.J.Super. 47,696 A.2d 48
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Edward A. WARD, II, Defendant, William R. Huff, Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 47

303 N.J.Super. 47

696 A.2d 48

STATE of New Jersey, Plaintiff-Respondent, v. Edward A. WARD, II, Defendant, William R. Huff, Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted April 7, 1997.

Decided July 3, 1997.

Walder, Sondak & Brogan and Crummy, Del Deo, Dolan, Griffinger and Vecchione, attorneys for appellant (Jeffrey A. Walder, of counsel, and John J. Gibbons, of counsel, on the brief).

John B. Dangler, Morris County Prosecutor, attorney for respondent (Michael Jan, Assistant Prosecutor, on the brief).

Before Judges PETRELLA, LANDAU and KIMMELMAN.

The opinion of the court was delivered by

LANDAU, J.A.D.

This is an appeal by William R. Huff, who had filed a number of complaints in Harding Township charging criminal offenses against the defendant, Edward A. Ward, II. As several of the complaints charged fourth degree indictable offenses, all of the complaints were referred to the Office of the Morris County Prosecutor.

Huff and his wife had pending at the same time a civil action against Ward and his wife. The Huffs' residential property includes a private road which is subject to an easement used by the Wards to reach their house. As the result of disputes about the speed at which the Wards' vehicles traverse the easement, assertedly endangering the Huffs and their young children, the Huffs placed speed bumps on sections of the private road which had been paved by the Wards. Ward objected particularly to one speed bump and asked that it be removed. When Huff refused, it is asserted that Ward had the speed bump removed and the asphalt residue dumped off the road portion of Huff's property. The civil suit has reportedly produced numerous claims and counterclaims. The disputes are obviously bitter.

Huff's complaints, filed in Harding Township Municipal Court, charged violations of N.J.S.A. 2C:17-3(a)(1) and (2)(purposefully or knowingly damaging property of another and purposefully or recklessly tampering with property of another so as to endanger people or property); criminal trespass, in violation of N.J.S.A. 2C:18-3; and violation of the Solid Waste Management Act, specifically N.J.S.A. 13:1E-9.3(a) and (b). The latter sections prohibit collection, transport or disposal of solid waste in excess of .148 cubic yards of solids except at an approved disposal site.

The criminal mischief complaints asserted damages in excess of $500, and accordingly would constitute fourth degree crimes under the N.J.Code of Criminal Justice (Code). The other complaints charged disorderly persons offenses.

Initially, the Morris County Prosecutor sent a form letter to Ward and to the Harding Township Municipal Court advising that the complaints had been administratively dismissed. The form utilized contained a check mark in the box entitled "civil court matter." Upon learning of this disposition, Huff's personal attorney, James A. Plaisted, Esq., wrote to the prosecutor requesting that the disorderly persons offenses be remanded to the municipal court rather than being dismissed. The prosecutor did not remand any of the complaints to the municipal court.

Thereafter, the Assignment Judge of Morris County entertained Huff's "motion", entitled under the summons numbers of the respective complaints, for an order remanding the disorderly persons complaints to the municipal court and further, for an order vacating the prosecutor's administrative dismissal. ¹

Initially denied, the judge granted reconsideration and required the prosecutor to explore further the substance of the complaints and requested that the assistant prosecutor meet with Huff's attorney. Following the meeting between the prosecutor and Huff's private attorney, the prosecutor reaffirmed the decision to dismiss all charges.

The judge again entertained briefs and arguments. Several counsel appeared for Huff, and a letter-brief from a professor of an out-of-state law school was also submitted on his behalf. This letter-brief was later incorporated in the appendix before us. ²

The judge concluded that the standard to be applied in considering the prosecutor's determination was whether it constituted a clear abuse of discretion. He found, following the prosecutor's compliance with the court's direction to meet with Huff's representative and more fully consider Huff's complaints, that there was compliance with the policy of the New Jersey Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to 4B-49. The judge further found that there was no clear abuse of discretion in the prosecutor's determination that the criminal complaints were more appropriately addressed in the pending civil actions, but that there was "probable cause respecting each of the criminal complaints filed by William R. Huff against Edward A. Ward II." The final order affirmed the prosecutor's administrative dismissal of each of the five complaints.

On appeal, Huff argues that the judge erred in ruling that the county prosecutor had authority to dismiss the disorderly persons complaints when the complainant wished to pursue them in municipal court (Point I); that, assuming the prosecutor's authority to dismiss such complaints, the judge erred in applying an abuse of discretion standard rather than conducting an independent plenary review (Point II); that the prosecutor could not administratively dismiss environmental law complaints (Point III); and finally, that even if an abuse of discretion standard was proper, the judge erred in concluding that the discretion had not been abused (Point IV).

We have considered carefully these arguments in light of the record and applicable law, and affirm, substantially for the reasons set forth by Judge Stanton in the oral opinion and colloquy of the hearing of August 6, 1996. We add these comments.

I.

As to the prosecutor's authority to dismiss disorderly persons complaints, Judge Stanton's conclusion is supported by the picture of broad prosecutorial authority that emerges from a comprehensive reading of New Jersey statutes, court rules and cases. There is undisputedly a remaining role for private prosecutions of disorderly persons complaints, but that role has been restricted by New Jersey courts in recognition that the criminal laws exist to protect the public's interest rather than to afford vindication of private property rights or personal grievances.

While these public and private interests may frequently coincide, the Attorney General and the county prosecutors have been designated to prosecute the criminal business of the State, N.J.S.A. 2A:158-4, and to exercise the discretion whether to prosecute or to refrain from prosecution. State v. Hermann, 80 N.J. 122, 127, 402 A.2d 236 (1979); State v. Mitchell, 164 N.J.Super. 198, 201, 395 A.2d 1257 (App.Div.1978).

In State v. Downie, 117 N.J. 450, 569 A.2d 242, cert. denied, 498 U.S. 819, 111 S.Ct. 63, 112 L.Ed.2d 38 (1990), the authority of the Monmouth County Prosecutor to intervene in on-going municipal court cases was recognized by the Supreme Court. Earlier, in State v. Downie, 229 N.J.Super. 207, 550 A.2d 1313 (App.Div.1988), affirmed by the Supreme Court, we said:

N.J.S.A. 2A:158-4 and 5 give the Attorney General and county prosecutors plenary jurisdiction to prosecute all criminal matters in this State. It is clear from the wording of N.J.S.A. 2A:158-5 that the words "criminal business" in § 4 are not limited to crimes, but include the prosecution of "offenders against the law." Cf. R. 3:23-9.

[Downie, supra, 229 N.J.Super. at 209 n. 1, 550 A.2d 1313.]

N.J.S.A. 2A:158-4 provides that "criminal business of the State shall be prosecuted by the Attorney General and the county prosecutors". ³ N.J.S.A. 2A:158-5 provides that:

Each prosecutor shall be vested with the same powers and be subject to the same penalties, within his county, as the attorney general shall by law be vested with or subject to, and he shall use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws.

Inasmuch as the prosecutor has been vested with the powers of the Attorney General, the powers of the latter official must also be explored. N.J.S.A. 52:17b-107a provides:

Whenever in the opinion of the Attorney General the interests of the State will be furthered by so doing, the Attorney General may (1) supersede a county prosecutor in any investigation, criminal action or proceeding, (2) participate in any investigation, criminal action or proceeding, or (3) initiate any investigation, criminal action or proceeding. In such instances, the Attorney General may appear for the State in any court or tribunal for the purpose of conducting such investigations, criminal actions or proceedings as shall be necessary to promote and safeguard the public interests of the State and secure the enforcement of the laws of the State.

N.J.S.A. 52:17B-103 provides in part:

The Attorney General shall consult with and advise the several county prosecutors in matters relating to the duties of their office and shall maintain a general supervision over said county prosecutors with a view to obtaining effective and uniform enforcement of the criminal laws throughout the State.

Under N.J.S.A. 2A:158-5, since the county prosecutor has the same powers as the Attorney General, the county prosecutor also has general supervisory power over municipal prosecutors. Cf. Kershenblatt v. Kozmor, 264 N.J.Super. 432, 437-439, 624 A.2d 1042 (Law.Div.1993). This is confirmed by the recently-enacted N.J.S.A. 2B:12-27, which places municipal prosecutors under supervision of "the Attorney General or county prosecutor."

Several Court Rules also support the conclusion that the prosecutor's broad authority in municipal prosecutions includes the right to dismiss.

Rule 3:23-9, governing appeals to the Law Division from courts of limited jurisdiction, provides that the prosecuting attorney in such appeals shall be "the municipal attorney, in a case involving a...