STATE OF NEW JERSEY v. BENJAMIN J. GIUNTA

NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5905-08T4
STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

BENJAMIN J. GIUNTA,

     Defendant-Appellant.
____________________________________

                                                    May 13, 2010
           Submitted April 28, 2010 - Decided

           Before Judges Cuff and Waugh.

           On appeal from Superior Court of New Jersey,
           Law   Division,  Morris   County,  Municipal
           Appeal No. P078051.

           Benjamin J. Giunta, appellant pro se.

           Robert A. Bianchi, Morris County Prosecutor,
           attorney   for  respondent   (Erin   Wisloff,
           Assistant Prosecutor, on the brief).

PER CURIAM

     Defendant Benjamin Giunta appeals the Law Division's denial

of his motion for leave to file a municipal appeal out-of-time.

Because we conclude that Giunta's appeal was not untimely, we

reverse   and   remand   for   consideration   of   his   appeal   on   the

merits.

     Giunta was issued a summons in Pequannock for making an

illegal U-turn, contrary to N.J.S.A. 39:4-125.             After several

adjourned trial dates, the case was dismissed on the application

of the municipal prosecutor on April 13, 2009.                     However, on the

same date, the municipal court judge fined Giunta for contempt

with    respect   to    his    failure    to    appear      on   prior    occasions.

Giunta disputed the factual basis for the contempt citation, but

did not have his personal calendar with him.                      In response, the

judge stated:

              If you would like, it's $200.00 contempt,
              you can pay at the window. I will hold that
              money here and I'll dismiss the complaint.
              You can send me a letter of all the dates
              you say you were here, . . . we have not
              only my notes, we have all of the calendars.
              We'll pull out our notes and if you're
              correct, you'll get the money back.       If
              you're not correct, it will stay here.

       Giunta sent the letter to the judge, and it was received

on April 24, 2009.           The judge reviewed Giunta's submission and

rejected his arguments in a letter dated May 14, 2009.                        Giunta

filed   his    notice   of    municipal       appeal   on   May    20,   2009.     He

received a letter, dated June 1, 2009, from the Law Division,

informing him that the appeal would not be considered because it

was untimely under Rule 3:23-2.

       On June 15, 2009, Giunta filed a motion for leave to appeal

out-of-time.      The motion was denied by letter dated June 16,

2009, followed by an order dated July 21, 2009.                          This appeal

followed.




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    Rule 3:23-2 requires that appeals from municipal courts in

criminal proceedings be filed within twenty days of the date of

the judgment.        In this case, the municipal judge, in essence,

granted Giunta's verbal motion for reconsideration and agreed

not to process the contempt citation until he had received and

reviewed Giunta's letter with respect to the dates on which he

appeared    in   court.         Giunta    filed    his       appeal    six      days    after

receiving    the   judge's       letter    rejecting          his    contentions.           He

clearly acted quickly to perfect his right to appeal once the

judge acted on his promise to review the facts underlying the

contempt citation.

    Consequently,          we   have     determined          that,    as   an    equitable

matter, Giunta's time to appeal did not begin to run until he

received the municipal judge's letter of May 14, 2009.                                 See R.

2:4-3(c) (tolling time to appeal);                     State v. Martin, 
335 N.J.

Super. 447, 451-52 (App. Div. 2000) (allowing late filing of

municipal    appeal    when       defendant       was    not        advised     of     rights

concerning appeal); State v. Gonzalez, 
186 N.J. Super. 609, 615

(Law Div. 1982) (same).            For that reason, we reverse the order

on appeal and remand to the Law Division for consideration of

Giunta's    appeal    on    the    merits,        as    to    which     we    express       no

opinion.

    Reversed and remanded.




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