STATE OF NEW JERSEY v. JOSEPH KUZMICS, III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3084-04T33084-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH KUZMICS, III,

Defendant-Appellant.

______________________________________

 

Submitted: December 19, 2005 - Decided:

Before Judges A. A. Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Warren County, A-26-2004.

Scott M. Wilhelm argued the cause for appellant (Winegar, Wilhelm, Glynn & Roemerama, attorneys; Mr. Wilhelm, on the brief).

Kelly Anne S. Shelton, Assistant Prosecutor, argued the cause for respondent (Thomas S. Ferguson, Warren County Prosecutor, attorney; Ms. Shelton, on the brief).

PER CURIAM

Defendant, Joseph Kuzmics, III, was convicted in the Municipal Court of Greenwich Township and again, after a trial de novo in the Law Division, of the disorderly persons offense of harassment, N.J.S.A. 2C:33-4a. The charges arose out of a verbal confrontation in the parking lot of Home Depot in Greenwich Township on November 1, 2004. Michael F. Schweitzer heard offensive remarks directed at him by defendant and Todd Wistuk. The remark questioned the virtue of Schweitzer's wife and the paternity of his daughter. Schweitzer then made an offensive remark directed at Wistuk. The confrontation escalated and eventually, the police were called. Schweitzer filed a citizen's complaint charging defendant and Wistuk with harassment. Defendant and Wistuk then filed cross-complaints against Schweitzer also charging harassment.

At trial, Schweitzer was represented by a private attorney, Robert Paterson. Defendant and Wistuk were represented by another private attorney, Scott M. Wilhelm. The municipal court acquitted Schweitzer and found defendant and Wistuk guilty of harassment. Defendant was sentenced by the municipal court to serve a thirty-day term at the Warren County Jail and to pay a $500 fine, $50 VCCB, $75 SNF and $30 court costs. The judgment was stayed pending appeal to the Law Division.

The Law Division found defendant guilty of the same charge, but remanded the matter to the municipal court "for proper analysis of the aggravating and mitigating factors." We interpret this statement to be an implicit vacation of the sentence imposed by the municipal court.

On remand, the municipal judge found two of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (1) the nature of the circumstances of the offense, and the role of defendant, taking note that the offense was committed in a specially cruel manner; and (2) the gravity and seriousness of the harm inflicted. The judge found no mitigating factors. He then said to defendant, "Sir, I wouldn't reconsider that sentence. I'd resign first. Go back to the other judge."

Defendant appealed the sentence to the Law Division. The same Law Division judge made the following findings regarding the sentence:

In the present case, this Court may not agree with aggravating factors numbered one and two, however, after reviewing the record this Court is able to find aggravating factors numbers 3 (the risk that the defendant will commit another offense) and aggravating factor number 9 (the need for deterring the defendant and others from violating the law). This Court is also able to find mitigating factor number 7 (the defendant has no criminal record)

. . . .

Therefore, this court finds that aggravating factors number 3 and 9 clearly outweigh the mitigating factor number 7, in so much as the defendant caused a risk of public calamity, a risk of an assault, and at the very least a gross insult to a law-abiding citizen concerning his wife.

The judge then imposed the same sentence as the municipal court and stayed the sentence pending appeal.

On appeal, defendant contends that:

THE DEFENDANT'S CONVICTION SHOULD BE VACATED BECAUSE THE COMPLAINANT'S ATTORNEY FAILED TO FILE A STORM CERTIFICATION.

We agree. R. 7:8-7(b), provides:

The Attorney General, county prosecutor, or county counsel, as the case may be, may appear in any municipal court in any action on behalf of the government and conduct the prosecution either on the court's request or on the request of the respective public official. The court may also, in its discretion and in the interest of justice, direct the municipal prosecutor, if there is one, to represent the government or may permit a private prosecutor to represent the government. A prosecutor may, however, be so permitted only if the court has first reviewed the attorney certification submitted on a form prescribed by the Administrative Director of the Courts, ruled on the contents of the certification, and granted the attorney's motion to act as private prosecutor for good cause shown. The finding of good cause shall be made on the record.

[Ibid.]

This rule is, essentially, a codification of the Supreme Court's holding in State v. Storm, 141 N.J. 245 (1995). There, the Court held, "In criminal or quasi-criminal cases, the need for impartiality extends beyond the judge to the prosecutor." Id. at 252. The court continued, "[T]he judicial task is to preserve the integrity of municipal courts, protect the rights of defendants, and to make the system work." Id. at 254-55.

Here, it is undisputed that the procedure set by the rule was not followed. We have held that the failure to comply with R. 7:8-7(b) will result in reversal. State v. Valentine, 374 N.J. Super. 292 (App. Div. 2005). Judge Fisher, writing for the majority stated, "[A] private prosecutor's failure to comply R. 7:8-7(b), that has the effect of precluding the municipal judge's assessment of Storm's concerns, creates a structural rift in the framework of the entire judicial process that cannot be viewed as harmless." Id. at 297 (citation omitted). He further noted, "Such a fundamental defect cannot be excused merely because the accused has suffered no ostensible prejudice nor may it be waived because the accused has not objected." Id. at 297-98 (citation omitted). Failure on the part of the private prosecutor to file a Storm certification before a municipal court trial constitutes reversible error.

Thus, we do not reach these other issues raised by defendant because they are now moot:

THE DEFENDANT'S CONVICTION SHOULD BE VACATED BECAUSE THE COMPLAINANT FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE CONDUCT OF THE DEFENDANT WAS A VIOLATION OF N.J.S.A. 2C:33-4a.

THE SENTENCE OF THE DEFENDANT SHOULD BE MODIFIED BECAUSE BOTH THE MUNICIPAL COURT AND THE LAW DIVISION FAILED TO SENTENCE HIM IN ACCORDANCE WITH THE LAW.

 
Accordingly, the conviction is vacated. The matter is remanded to the Municipal Court of Greenwich Township for a new trial. The procedures set by R. 7:8-7(b) must be obeyed. Valentine, supra, 374 N.J. Super. at 298. Given the judge's strong feelings about this case, it should be tried by a different judge.

Reversed and remanded.

State v. Storm, 141 N.J. 245 (1995).

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A-3084-04T3

 

January 4, 2006