STATE OF NEW JERSEY v. DAVID BADEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5350-05T15350-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID BADEN,

Defendant-Appellant.

_________________________________

 

Submitted March 14, 2007 - Decided April 17, 2007

Before Judges Wefing and Messano.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

No. 05-06.

Theodore F.L. Housel, attorney for

appellant.

Jeffrey S. Blitz, Atlantic County

Prosecutor, attorney for respondent

(James F. Smith, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Following the municipal court's denial of his motion to dismiss the charges pending against him, defendant entered a retraxit plea of guilty to driving while intoxicated, N.J.S.A. 39:4-50, conditioned upon his right to appeal that denial. The Law Division also denied defendant's motion to dismiss. Defendant has appealed to this court. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was charged with driving while intoxicated and speeding in Egg Harbor Township on October 13, 2005. Counsel entered his appearance on October 28 and demanded discovery. Counsel appeared in municipal court on November 14, 2005, and, still not having received discovery, requested that the municipal court judge enter an order compelling discovery. Because the motor vehicle stop was effectuated by a New Jersey State Trooper, the prosecutor requested sixty days within which to produce discovery. The municipal court judge signed an order directing the production of "full and complete discovery" on or before December 27, 2005. The order concluded with the following language: "ORDERED that pursuant to State v. Holup, 253 N.J. Super. 320 (1992), if full and complete discovery is not tendered to defense counsel the charges will be dismissed."

The matter was then relisted for January 13, 2006, before the municipal court judge. Discovery, however, was not provided in accordance with the order of November 14, 2005. Defense counsel received the MVR videotape on January 12, 2006, and did not receive the balance of the discovery until he arrived in municipal court on January 13, 2006. The communication from the State Police forwarding the applicable material to the municipal prosecutor indicated it had been received in the municipal court on November 16, 2005, two days after the court's order.

Based upon the violation of the court's November 14, 2005, order, defendant moved for a dismissal of the charges. After extensive argument, during which the prosecutor represented that she had never received a copy of the executed order, the municipal court judge declined to dismiss the charges but adjourned the matter to January 26, 2006, to permit defendant to prepare.

When the parties appeared on January 26, defendant renewed his motion to dismiss the charges for failure to comply with the order of November 14. The municipal court judge again denied the motion, at which point defendant entered a conditional plea of guilty.

Defendant appealed to the Law Division, maintaining his position that the prosecution's failure to comply with the November 14 order called for dismissal of the charges. The Superior Court judge declined to give that relief but did afford defendant the opportunity to move before the municipal court judge for sanctions. Defendant declined to do so.

We agree with the judgment exercised by both the municipal court judge and the Superior Court judge. The order in question referred to our decision in State v. Holup, 253 N.J. Super. 320 (App. Div. 1992). The defendant in Holup was charged with driving while intoxicated, careless driving and driving with an obstructed windshield. Id. at 321. Trial was initially set for July 17, 1989, and adjourned at defendant's request to September 11, 1989. Ibid. When the case was called for trial that evening, defendant, his attorney and their expert witnesses were present, but the prosecution requested an adjournment because the breathalyzer operator was not available to testify. Id. at 322. During colloquy, it developed that the prosecution had not delivered any discovery to the defendant, who sought dismissal of the charges. Ibid. That was denied both by the municipal court judge and the Superior Court judge on appeal. Ibid. The latter imposed sanctions based upon the failure to produce discovery. Ibid. Those sanctions were, however, later vacated and the matter remanded for trial. Id. at 323. We affirmed the actions of the Law Division judge. Ibid.

In the course of our opinion, we noted the delays attendant to municipal court matters due to problems encountered with the production of discovery. Id. at 323-24. We recommended that when defense counsel has not received the appropriate discovery requested, he or she file a motion seeking to limit the time within which the discovery may be provided and, upon a failure to comply, dismissal of the action. Id. at 325.

Nothing within our opinion indicates that dismissal should be the automatic consequence of a failure to produce timely discovery. And nothing within our opinion indicates that the execution of such an order should limit the discretion of the trial judge in determining how to proceed in the face of a failure to produce discovery. Further, we cannot read Holup as retreating from the principle we set forth in State v. Prickett, 240 N.J. Super. 139, 147 (App. Div. 1990), "that in the administration of justice dismissal must be a recourse of the last resort."

There is nothing in the record before us to indicate that the failure here was anything but the result of inadvertence. We can perceive no policy reason why, in such an instance, the matter should not be disposed of on its merits.

Affirmed.

 

The record before us also includes an order dated November 7, 2005, executed by the municipal court judge, calling for the production of discovery within thirty days. The parties do not set forth an explanation of how the earlier order was entered or address what its significance might be.

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A-5350-05T1

April 17, 2007