STATE OF NEW JERSEY v. EARL J. SMITH, III

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1621-09T41621-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EARL J. SMITH, III,

Defendant-Respondent.

_______________________________

WANDA BELL,

Appellant.

_______________________________

 

Argued May 26, 2010 - Decided

Before Judges Stern, Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 09-046.

Ronald M. Gutwirth argued the cause for appellant Wanda Bell (Harvey S. Grossman, attorneys; Mr. Gutwirth, on the briefs).

Monica do Outeiro argued the cause for respondent State of New Jersey (Luis A. Valentin, Monmouth County Prosecutor, attorney; Ms. do Outeiro, Assistant Prosecutor, of counsel and on the brief).

Greg G. Mordas argued the cause for respondent Earl J. Smith, III.

PER CURIAM

Wanda Bell, the administratrix ad prosequendum of the victim of a fatal accident, appeals from an "order denying appeal" of the Law Division, entered on October 23, 2009. Appellant seeks to challenge a provision in the disposition of a motor vehicle complaint in the Millstone Municipal Court to the effect that the plea to reckless driving "shall not be used in any civil or administrat[ive] proceedings under Rule 7:6-2." Appellant believes she is the "real party in interest" on the appeal in promoting the right to use the plea in the wrongful death action she commenced and in "promoting restitution." The State contends appellant has no right to pursue the appeal.

Judge Ira Kreizman dismissed the appeal to the Law Division after concluding that Ms. Bell had no standing to pursue the appeal.

Appellant claims the non-use provision constituted an abuse of discretion, that her right to appeal as "the real party in interest on the civil reservation issue . . . should not be the subject of prosecutorial discretion," that the plea reservation rule should not be applied in a case involving a fatality, and that "municipal courts do not have jurisdiction to render evidentiary determinations in civil cases in the Superior Court."

For present purposes, we accept appellant's statement of facts and underlying procedural history:

On December 22, 2008, the Honorable Francis B. DeStafano, P.J.Cr. entered an order pursuant to N.J.S.A. 2B:12-17.2 remanding State of New Jersey v. Earl J. Smith, III to the Millstone Township Municipal Court for prosecution of motor vehicle charges of improper passing in violation of N.J.S.A. 39:4-85, failure to stop for a stop sign pursuant to N.J.S.A. 39:4-144, speeding in violation of N.J.S.A. 39:4-98, reckless driving in violation of N.J.S.A. 39:4-96 and failure to wear a seatbelt in violation of N.J.S.A. 39:3-76.2(f). The Superior Court, Law Division entered the order because a Monmouth County Grand Jury failed to indict defendant for any criminal charges . . . .

On June 12, 2009, counsel for Wanda Bell (hereinafter . . . "[appellant]"), the mother of Andre Bell, the decedent killed in the motor vehicle accident on June 9, 2007, filed an appearance in the Millstone Township Municipal Court in which the victim expressed objection to any civil reservation of defendant's guilty plea pursuant to R. 7:6-2(a)(1). . . . .

On June 30, 2009, defendant pleaded guilty to reckless driving in violation of N.J.S.A. 39:4-96. As part of the plea agreement, the court dismissed the charges against defendant for improper passing in violation of N.J.S.A. 39:4-85, failure to stop at a stop sign in violation of N.J.S.A. 39:4-144, speeding in violation of N.J.S.A. 39:4-98 and failure to wear a seatbelt in violation of N.J.S.A. 39:3-76.2(f).

The court imposed a ninety day sentence on defendant and suspended sixty days of the sentence. The court imposed fines of $506.00 and $33.00 in costs and required the defendant to perform 500 hours of court supervised community service at a children's hospital or with sick children. Despite opposition from the victim, the court entered a civil reservation pursuant to R. 7:6-2(a)(1) which barred the admission of defendant's guilty plea in civil proceedings.

On July 15, 2009, the . . . [appellant] filed a notice of appeal of the order entering a civil reservation of defendant's guilty plea. . . . . On September 24, 2009, the State opposed victim-appellant's motion to correct or supplement the record and urged the dismissal of the victim-appellant's appeal based on our alleged lack of standing. On October 2, 2009, the court granted victim-appellant's motion to correct and/or supplement the record.

In response to plaintiff's motion to supplement and/or correct the record on appeal in the Superior Court, Law Division, the Monmouth County Prosecutor filed [an] opposition to the motion based on . . . [appellant's] alleged lack of standing to proceed with the appeal. At the time . . . [appellant] filed her brief in the Law Division, she filed a formal motion for leave to proceed with an appeal of the civil reservation entered by the Millstone Township Municipal Court which was supported by legal argument[s] in her brief. The Monmouth County Prosecutor filed a motion to dismiss . . . [her] appeal based on . . . [her] alleged lack of standing and the brief filed by the [S]tate relied primarily on the standing argument to oppose reversal of the civil reservation entered in favor of defendant. On October 23, 2009, the Law Division denied . . . [appellant's] appeal based on the conclusion that . . . [she] lacked standing to pursue the appeal.

I.

We need not decide the broad issue presented of whether a victim of a motor vehicle or other non-indictable offense can ever challenge the inclusion of an order precluding evidentiary admission of a plea in a related civil proceeding as part of a disposition under Rule 7:6-2. That rule provides that "[o]n the request of the defendant, the court may, at the time of the acceptance of a guilty plea, order that the plea shall not be evidential in any civil proceeding." R. 7:6-2(a)(1). Our case law has recognized the victim's right to be heard in municipal court on the preclusion application and on a defendant's appeal from the denial of such application. State v. Tsilimidos, 364 N.J. Super. 454, 458-60 (App. Div. 2003) (noting that Rule 3:9-2, not Rule 7:6-2, applies to a plea to a non-indictable complaint in Superior Court, and under Rule 7:6-2 "the defendant need merely request such a reservation and the order will be entered as a matter of course unless the victim or the State shows good cause not to enter the order" (emphasis added). Conversely, under Rule 3:9-2, the defendant has the burden in the Superior Court to show "any reason sufficient to warrant the granting of his application"); State v. LaResca, 267 N.J. Super. 411, 421 (App. Div. 1993) (referring to the "reduced standard" under the municipal court rules). Although the rule gives a victim no express right to be heard, a statute enforces that policy. See N.J.S.A. 39:5-52. But those rights do not translate into the right of the victim to become the public prosecutor or to pursue an appeal from an unsatisfactory aspect of the judgment of conviction. See R. 3:23-2; R. 3:23-9; R. 7:8-7(b); State v. Storm, 141 N.J. 245 (1995).

We hold only that where, as here, the grand jury has no billed indictable charges and the matter has been remanded to the municipal court for disposition of the non-indictable charges, the County Prosecutor has the constitutional authority, as chief law enforcement officer, to assert the victim's lack of standing to appeal. See State v. Vitiello, 377 N.J. Super. 452, 455-56 (App. Div. 2005); R. 3:23-9; see also State v. Ward, 303 N.J. Super. 47, 54 (App. Div. 1997); State v. Haulaway, Inc., 257 N.J. Super. 506, 508 (App. Div. 1992) (purpose of R. 3:9-2); R. 3:23; R. 3:24. The State's interests as the public prosecutor differ from those of the victim. We need go no further than considering the facts before us, and do not consider the issue in the context of a case in which the County Prosecutor is not involved in the disposition or takes no position on the Rule 7:6-2 issue. To the extent defendant argues that the municipal court cannot bind the Superior Court, we note only that it is the Supreme Court that has done so through its rulemaking power. See N.J. Const. (1947) Art. 6, 2, 3.

II.

Although the appeal must be dismissed, and should not, therefore, be considered on the merits, we nevertheless add the following observations about the case. The municipal judge stated that "a civil reservation is granted unless just cause can be demonstrated and the burden . . . is on the moving party." The judge specifically asked Ms. Bell's attorney how her civil case was "prejudiced" by "the inability to use the guilty plea," and counsel answered:

[t]he good cause is that by disallowing a civil reservation, the Court will assist the victim in this case in receiving just compensation for her loss. It will enable her to prosecute a cause of action in a manner that she might not be able to prosecute if the Court grants the civil reservation.

Moreover counsel felt, as a result of then recent legislation, that proof of the plea was "essential for her for punitive damages."

The judge concluded that the plea would not be evidential in a civil proceeding. He stated:

Counsel, with regard to the civil reservations, the Legislature has been very clear that in terms of with regard to the municipal court and/or Superior Court matter, criminal Superior Court matters, that where you're dealing with an indictable Superior Court criminal matter, that the burden is on the State as to whether or not, as to demonstrate why it should not be used in a civil proceeding.

The Legislature was very clear in municipal court. It is the reverse. And the reverse is because they are apples and oranges. And the purpose for which the Court serves are apples and oranges. And the case law is very clear that the burden would be on Mr. Grossman, who's representing Ms. Bell. That there must be demonstrated, some just cause as to why a civil reservation should not be issued.

And I don't find that that has been met by Mr. Grossman. Mr. Grossman has submitted volumes of documents to this Court with regard to an extensive investigation, testimony, presentation of the grand jury. This matter was thoroughly investigated, presented to the grand jury.

There is so much evidence that is available that can be utilized in a civil case that I don't see in any way, shape or form the use of the guilty plea on a motor vehicle violation for reckless driving would be of any merit that would require just cause.

I can see just cause in a circumstance where we didn't have such a thorough investigation or where just cause might exist, should witnesses be unavailable or have passed away, or there's a whole host of circumstances. But the intent at this point in time is that the, I don't find that just cause exists as anticipated.

As a result, I will mark that the guilty plea is not to be used as evidence in any civil proceeding pursuant to [Rule] 7.6[-]2. And that certainly does not preclude by any stretch of the imagination, Mr. Grossman vigorously asserting his client's rights in Superior Court. But the use of the guilty plea in this, from a municipal court conviction just cause has not been met with the amount of evidence that is present.

The judge did not exercise his discretion inappropriately or without properly considering the impact of the rule. In any event, as LaResca and Tsilimidos point out, the "informal nature of municipal court proceedings and the varied reasons why people plead guilty without intending to incur the collateral consequences of the plea: time restraints; inability to secure witnesses . . . ; unease with court proceedings," id. at 421, and the expeditious manner of disposing cases in municipal court, often without counsel, all combine to require that "[t]he non-evidential order should therefore be entered as a matter of course on the request of a defendant, unless the State or a victim who has appeared under N.J.S.A. 39:5-52a shows good cause to the court why the order should not be entered[,]" and if it was a condition of the plea and the order is not entered or approved, the plea may be withdrawn. LaResca, supra, 267 N.J. Super. at 421. See also Eaton v. Eaton, 119 N.J. 628, 642-45 (1990).

In sum, there is no showing of an abuse of discretion here.

III.

 
The judgment of the Law Division dismissing the appeal is affirmed. Judge Sabatino joins only Part II of this opinion, and would therefore not resolve the issue of standing. Accordingly, he would modify the judgment of the Law Division to affirm the municipal court's decision, only on substantive grounds.

In entering his plea to reckless driving, Smith acknowledged speeding and swerving to avoid a car stopped at an intersection. He proceeded into the intersection resulting in a collision which caused his car to flip over. Andre Bell, who was like a brother to Smith and a passenger in his car, was killed. The decedent's mother, through counsel, asked that Smith not receive a custodial sentence so that he could continue to work as a professional basketball player and support the Bell family.

The municipal court rules were renumbered in 1997, effective February 1, 1998.

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A-1621-09T4

August 30, 2010