STATE OF NEW JERSEY v. RALPH MCGRANE IN THE MATTER OF DONALD DEL VECCHIO
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4810-08T4
STATE OF NEW JERSEY,
Plaintiff,
v.
RALPH MCGRANE,
Defendant-Respondent.
_______________________________________
IN THE MATTER OF DONALD DEL VECCHIO,
Appellant,
______________________________________
Argued February 22, 2010 Decided March 11, 2010
Before Judges Yannotti and Chambers.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Municipal Appeal No. 08-075.
Nabil N. Kassem argued the cause for
appellant (The Law Offices of Nabil N.
Kassem, L.L.C., attorneys; Mr. Kassem, on
the brief).
John M. Barbarula argued the cause for
respondent (Barbarula Law Offices,
attorneys; Mr. Barbarula, on the brief).
PER CURIAM
Donald Del Vecchio (Del Vecchio) appeals from an order
entered by the Law Division on May 18, 2009, affirming the
dismissal by the municipal court of certain criminal complaints
filed by Del Vecchio against defendant Ralph McGrane (McGrane).
For the reasons that follow, we dismiss the appeal.
This appeal arises from the following facts. Del Vecchio
is employed as a corrections officer at the Morris County
Correctional Facility. McGrane is his supervisor. On October 31,
2008, Del Vecchio was on duty in the loading area of the
facility. McGrane approached him and a discussion ensued. Del
Vecchio claimed that McGrane confronted him verbally and
physically and used offensively coarse language. Del Vecchio
filed a criminal complaint charging McGrane with aggravated
assault against a corrections officer, contrary to N.J.S.A.
2C:12-1(b)(5)(h).
The municipal court conducted a hearing on November 18,
2008, to determine if there was probable cause for the
complaint. Del Vecchio testified and presented a DVD recording
of the incident. Thereafter, the court placed its decision on
the record. The court observed that the DVD showed that McGrane
and Del Vecchio had engaged in a "heated argument" and there was
"some touching[.]" The court found, however, that the "touching"
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did not rise to the level of a criminal assault. The court
accordingly concluded that the charge was not supported by
probable cause and dismissed the complaint. Del Vecchio did not
appeal from the order of the municipal court.
Del Vecchio thereafter filed three additional criminal
complaints against McGrane, all arising from the October 31,
2008, incident. Del Vecchio charged McGrane with harassment,
contrary to N.J.S.A. 2C:33-4; hindering apprehension, contrary
to N.J.S.A. 2C:29-3(a); and tampering with a witness, contrary
to N.J.S.A. 2C:28-5(a). On December 16, 2008, the municipal
court held a probable hearing on these charges.
Del Vecchio testified. He said that he is the President of
the union for the corrections officers and described the
incident of October 31, 2008, during which he was allegedly
harassed. Del Vecchio additionally testified that he filed a
complaint with his employer regarding the incident. He said
that, after he filed his complaint, McGrane called him into his
office.
According to Del Vecchio, McGrane told him that if he
pursued the matter, he was the only person who would be hurt.
Del Vecchio said to McGrane that he believed this was a threat
but McGrane replied that it was only "a saying." Del Vecchio
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told McGrane that he "took it as threat" and McGrane said he
could "take it any way" he wanted to.
The court rendered a decision from the bench. The court
found that none of the conduct described by Del Vecchio rose to
the level of a criminal violation and dismissed the charges. Del
Vecchio filed an appeal to the Law Division, which considered
the matter on May 1, 2009.
McGrane argued that Del Vecchio did not have standing to
pursue the appeal. The court disagreed, concluding that Del
Vecchio had standing because he had filed his complaint as a law
enforcement officer rather than as a citizen complainant. The
court further found that, upon consideration of Del Vecchio's
testimony, review of the DVD of the incident and the transcript
of the municipal court proceeding, probable cause did not exist
for the charges. The court entered an order dated May 18, 2009,
affirming the municipal court's dismissal of the complaints.
This appeal followed.
McGrane argues that Del Vecchio does not have standing to
appeal the order of the municipal court dismissing his
complaints for lack of probable cause. We agree.
In State v. Vitiello,
377 N.J. Super. 452 (App. Div. 2005),
the complainant filed a harassment complaint against the
at 454. The Assignment Judge dismissed the
defendant. Id.
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4
complaint pursuant to N.J.S.A. 2C:2-11(b). Id. at 455. The
statute allows an Assignment Judge to dismiss a prosecution when
the defendant "did not actually cause or threaten the harm or
evil sought to be prevented by the law defining the offense or
did so only to an extent too trivial to warrant the condemnation
of conviction." N.J.S.A. 2C:2-11(b). The defendant appealed the
Assignment Judge's order. Id. at 454.
We dismissed the appeal and stated that "[t]he State, and
only the State, can appeal a dismissal, particularly where the
matter is being handled by a public prosecutor, and a citizen,
including the complainant, who has not been designated "private
prosecutor," does not have standing." Id. at 455-56. We noted
that the County Prosecutor had not objected to the dismissal of
the complaint and, in the exercise of his prosecutorial
discretion, did not appeal the dismissal. Id. at 456.
Here, the State has not appealed the decisions of the
municipal court and the Law Division dismissing Del Vecchio's
complaints. We note that, although Del Vecchio is a law
enforcement officer, he pursued this matter as a private citizen
as a result of conduct directed at him as an individual. Even if
Del Vecchio filed his complaints as a law enforcement officer,
he would not have standing to appeal the dismissal of the
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5
complaints because he is not authorized to act on behalf of the
State.
We additionally note that the municipal court never
designated Del Vecchio as a "private prosecutor." Indeed, it
appears that he would not qualify for such a designation under
Rule 7:8-7(b) (allowing the court, in certain circumstances, to
designate an attorney to appear as a private prosecutor to
"represent the State in cases involving cross-complaints").
Furthermore, by letter dated April 17, 2009, the Morris County
Prosecutor advised the trial court that it was not taking a
position on Del Vecchio's appeal from the municipal court
decision.
Thus, under Vitiello, Del Vecchio did not have standing to
appeal the dismissal of his complaints by the municipal court
and he does not have standing to maintain this appeal from the
trial court's determination. The trial court erred by concluding
otherwise. In view of our determination that Del Vecchio does
not have standing to pursue this appeal, we will not address the
merits of his arguments.
Appeal dismissed.
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