STATE OF NEW JERSEY v. FRANCIS PRETO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5417-04T55417-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCIS PRETO,

Defendant-Appellant.

______________________________________________________________

 

Submitted December 19, 2006 - Decided January 13, 2006

Before Judges Lintner and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. 09-05.

Lee H. Engelman, attorney for appellant.

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Deborah A. Siegrist, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Appellant, Francis J. Preto, appeals the Law Division's dismissal of his appeal from the North Hanover Township Municipal Court. Municipal Court Judge McCloskey, pursuant to Rule 7:2-2(a)(1), determined that Preto's affidavit in support of a citizen's complaint that he sought to file against Deborah A. Palombi failed to establish probable cause that Palombi had committed the offense of harassment against him under N.J.S.A. 2C:33-4 or the offense of unsworn falsification to authorities under N.J.S.A. 2C:28-3. Preto was not permitted to sign a citizen's complaint against Palombi because no summons can issue in the absence of probable cause. R. 7:2-2(a)(1). We affirm.

On December 16, 2004, Preto attempted to file a complaint for harassment and unsworn falsification to authorities against Palombi in the North Hanover Township Municipal Court. In support of the complaint, he submitted an affidavit of probable cause to the North Hanover Township Court Administrator and North Hanover Municipal Court Judge. Preto deposed that Palombi stood up at a township meeting and shouted words to the effect: "and who are you, who are you? Who are you to tell me who to support? You are in my personal space." Preto indicated that he was at least four feet from Palombi and, therefore, inquired of Palombi how he could be in her personal space. At that point, Palombi shouted towards the front of the Township Committee meeting room words to the effect, "I want to file a complaint. How do I file a complaint?" Palombi continued shouting outside the hearing room repeating the same words.

Preto alleged that Palombi's "actions and words were done to humiliate, annoy and alarm, and were premeditated and designed in an attempt to provoke a retaliatory reaction." Preto asserted that Palombi, by her words and actions "did in fact, embarrass, humiliate, annoy and alarm him."

Both the North Hanover Township Court Administrator and North Hanover Township Municipal Court Judge McCloskey found no probable cause to issue the complaint. The judge made the following notation at the bottom of Preto's affidavit of probable cause: "No P.C. as to a criminal violation. The words or actions do not fit the definition of harassment in the statute nor would they be such to cause annoyance or alarm."

On January 27, 2005, Preto filed a Notice of Municipal Court Appeal in the Superior Court, Law Division from the determination of "no probable cause" made by Judge McCloskey on January 10, 2005. On May 3, 2005, Burlington County Assignment Judge John A. Sweeney heard argument and denied Preto's appeal.

The judge denied Preto's appeal on the ground that Preto lacked standing to perfect an appeal from the municipal judge's determination on review of the municipal court administrator's finding of no probable cause to issue a summons. The judge framed the issue: "I think the primary issue is, one, can you appeal a finding of no probable cause under our current rules?"

Judge Sweeney determined that "our rules and our case law really do not provide a mechanism through which a complainant, a citizen complainant, has the right to appeal a finding of no probable cause, absent a clear showing of abuse by the municipal court judge." The judge concluded that the complaint was properly dismissed upon a finding of "no probable cause," stating: "Therefore, there is really nothing to appeal at this juncture. So, respectfully, the appeal is denied."

Counsel for Preto acknowledges that the rules do not permit a potential citizen complainant to appeal the municipal court's dismissal after a determination of an absence of probable cause but argues that the appeal should be permitted in the "interests of justice."

We are satisfied that Judge Sweeney properly concluded that Preto lacked standing to appeal the dismissal of his complaint by the municipal court judge after a determination of "no probable cause." We are convinced that a prosecuting attorney has standing to appeal such a determination, but a private complainant does not.

Rule 3:2-1(a) provides in pertinent part: "The complaint shall be a written statement of the essential facts constituting the offense charged . . . . The clerk or deputy clerk, municipal court administrator or deputy court administrator shall accept for filing any complaint made by any person."

Rule 3:3-1(d) states:

If a judicial officer finds that there is no probable cause to believe that an offense was committed or that the defendant committed it, the officer shall not issue a warrant or summons on the complaint. If the finding is made by an officer other than a judge, the finding shall be reviewed by a judge. If the judge finds no probable cause, the judge shall dismiss the complaint.

That was the procedure followed by Judge McCloskey in this case.

Rules 3:23-1 and 3:23-2 provide for an appeal from the Municipal Court by a defendant or other person aggrieved by a judgment of conviction or by a final post-judgment order. Preto, as a potential complaining witness does not fit either description.

Rule 3:24(b) provides: "The prosecuting attorney may appeal, as of right, a pre-trial or post-trial judgment dismissing a complaint . . . ." A prosecuting attorney is defined by Rule 3:23-9(a) to (c) as either the attorney general, the municipal attorney in a case involving a violation of a municipal ordinance or the county prosecutor in all other cases.

Rule 3:23-9(d) reads: "With . . . the consent of the court, the attorney for a complaining witness or other person interested in the prosecution may be permitted to act for the prosecuting attorney . . . ." The comment to Rule 3:23-9(d), however, states: "Paragraph (d) of this rule was added by the 1969 revision, for the purpose of making clear that in no event shall the attorney for the complaining witness be deemed the prosecuting attorney unless the court, with the consent of the prosecuting attorney permits him to so act." Pressler, Current N.J. Court Rules, Comment 4 on R. 3:23-9(d) (2005). The consent of the court requires a certification by counsel and a finding of good cause. See State v. Valentine, 374 N.J. Super. 292, 297 (App. Div. 2005).

We are convinced that the Rules of Court do not afford Preto standing to appeal Judge McCloskey's finding of "no probable cause" to file a complaint. Although there is no appellate level decision addressing the precise issue presented by this appeal, various decisions address parts of the issue. In an unpublished opinion of this court, State v. Flavel, A-2854-03T3 (App. Div. January 11, 2005), which Judge Sweeney found persuasive, a citizen complainant filed a complaint against Flavel, a police officer. The municipal court judge found no probable cause and dismissed the complaint. The complainant, who had private counsel, attempted to appeal to the Superior Court, Law Division. The Law Division judge also found no probable cause and dismissed the complaint. We held that "there was no basis for the matter to come before the Law Division" under Rule 3:23-1 or 3:23-2 because the dismissal of the complaint cannot be deemed either a judgment of conviction or a final post-judgment order. The decision, however, did not reach the issue of whether the dismissal could be appealed under Rule 3:24(b) and who would qualify as the "prosecuting attorney."

In State v. Vitiello, 377 N.J. Super. 452 (App. Div. 2005), we concluded that a private citizen complainant could not appeal to the Appellate Division from the decision of a Law Division Assignment Judge dismissing his complaint on de minimis grounds. We concluded that the de minimis statute, N.J.S.A. 2C:2-11c, specifically allows for the appeal of right by the prosecutor. However, Rule 2:3-1 provides only for appeals by the State from the dismissal of a complaint. Rule 2:3-2 allows defendants or other aggrieved persons to appeal, but only from a final judgment of conviction, post-conviction proceeding or interlocutory order. We determined that these Rules do not allow a complainant the right to appeal. Vitiello, supra, 377 N.J. Super. at 455.

Our analysis of Rule 3:23 and Rule 3:24, both of which apply to courts of limited jurisdiction and are very similar to Rule 2:3-1 and Rule 2:3-2, leads to the same conclusion. A complainant, however, is not without recourse, but he must first attempt to pursue his appeal by way of the "prosecuting attorney." The logistical and policy reasons for such a limitation are clear. In In Re Loigman, 183 N.J. 133 (2005), the Supreme Court concluded that private citizens cannot bypass the prosecutor to have direct access to a grand jury. The Court in Loigman did not suggest any improper purpose on the part of the private citizen involved. Id. at 135. Nonetheless, the Court expressed policy concerns, noting that private citizens are not guided by the same rules of professional conduct as prosecutors, nor are they subject to the constraints of seeking justice rather than pursuing some personal agenda or enmity. Id. at 144-45.

 
We are convinced that Judge Sweeney properly concluded that a reading of the court rules and relevant case law do not permit Preto to appeal the determination of the municipal court judge, pursuant to Rule 7:2-2(a)(1) that there was no probable cause to issue a summons based on the facts contained in Preto's affidavit of probable cause to file a citizen's complaint against Palombi.

Affirmed.

Palombi filed a harassment complaint against Preto arising out of the same incident. That complaint is not a subject of this appeal.

While Preto captioned his appeal "State v. Preto," Preto is not a defendant in this appeal, nor is the State a party to it. The State is not prosecuting Preto. The State took no position on the merits of the municipal court determination of no probable cause except that the merits had already been determined by a neutral judicial authority.

While Rule 1:36-3 generally restricts courts from citing an unpublished opinion as precedential authority, a court may cite an unpublished opinion as a "secondary authority." Pressler, Current N.J. Court Rules, comment 2 on R. 1:36-3 (2005). See Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 98 (App. Div. 2000) (treating an unpublished opinion of another panel as persuasive authority for their decision.)

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A-5417-04T5

January 13, 2006