STATE OF NEW JERSEY v. NICHOLAS D. SOKOLOVSKI

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4734-15T2


STATE OF NEW JERSEY,

              Plaintiff-Appellant,

v.

NICHOLAS D. SOKOLOVSKI,

          Defendant-Respondent.
__________________________________________

              Argued March 16, 2017 – Decided September 19, 2017

              Before Judges Espinosa, Suter, and Guadagno.

              On appeal from the Superior Court of New
              Jersey, Law Division, Monmouth County,
              Docket No. 2016-163.

              Monica do Outeiro argued the cause for
              appellant (Christopher J. Gramiccioni,
              Monmouth County Prosecutor, attorney; Ms. do
              Outeiro, Assistant Prosecutor, of counsel
              and on the brief).

              Raymond A. Raya argued the cause for
              respondent.

PER CURIAM

        By our leave granted, the Monmouth County Prosecutor's

Office (MCPO) appeals from the April 15, 2016 order entered by
Assignment Judge Lisa P. Thornton, granting the motion of

defendant Nicholas D. Sokolovski to consolidate complaints

pending in two municipal courts.

     Defendant was arrested in Freehold Township on July 13,

2015, and charged with disorderly persons offenses involving

possession of marijuana and drug paraphernalia.   Fifteen days

later, defendant was arrested in Howell Township and again

charged with marijuana related offenses.1

     Defendant moved pursuant to Rule 7:8-4 to consolidate the

two municipal matters in order to apply for a conditional

discharge, 
N.J.S.A. 2C:36A-1, which would not be available if

the two cases were prosecuted separately.   Defendant's motion

was unopposed by both municipal prosecutors, but MCPO objected,

arguing the Rule did not permit consolidation of unrelated

charges pending in different municipalities.

     After hearing oral argument, Judge Thornton granted

defendant's motion and ordered both matters consolidated and

heard in Howell municipal court.    The judge conditioned the

consolidation on resolution of the matters by guilty pleas




1
  Although the initial summons included a third-degree
distribution charge and a fourth-degree charge alleging
possession of more than fifty grams, both were downgraded to
disorderly persons offenses after review by MCPO.

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within forty-five days, or they would be returned to the

respective municipalities for trial.

    On appeal, MCPO presents one argument:

           THE LOWER COURT ERRED IN GOING BEYOND THE
           PLAIN LANGUAGE OF THE RULE AND GRANTING
           CONSOLIDATION OF DEFENDANT'S MUNICIPAL COURT
           CASES FOR SENTENCING PURPOSES.

    Rule    7:8-4   addresses   consolidation   of   municipal   court

matters:

           The court may order two or more complaints to
           be tried together if the offenses arose out
           of   the   same   facts   and   circumstances,
           regardless of the number of defendants. In all
           other matters, the court may consolidate
           complaints for trial with the consent of the
           persons charged.    Complaints originating in
           two or more municipalities may be consolidated
           for trial only with the approval of the
           appropriate Assignment Judge, who shall
           designate the municipal court in which trial
           is to proceed. A party seeking consolidation
           of   complaints   originating   in   different
           municipalities shall file a written motion for
           that relief directly with the Assignment
           Judge.

    MCPO argues the Rule permits consolidation only if the

charges arise from "the same facts and circumstances" or if the

consolidation is sought "for trial."

    Recently, we rejected a similar challenge to consolidation

by MCPO in State v. Whooley, No. A-3395-15 (App. Div. Aug. 8,

2017).   In Whooley, we observed:



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         While the first sentence of Rule 7:8-4 appears
         to limit consolidation to matters arising "out
         of the same facts and circumstances," when
         read in conjunction with the next sentence,
         it is apparent that the restriction is limited
         to instances where the persons charged do not
         consent to consolidation. The second sentence
         refers to "all other matters" and suggests
         that complaints may be consolidated "with the
         consent of the persons charged." R. 7:8-4.
         When read in context, the Rule allows for
         consolidation of municipal complaints when the
         offenses do not arise from the same facts and
         circumstances, as long as the defendant
         consents.      Because   defendant  not   only
         consented but sought consolidation here, we
         reject MCPO's argument that consolidation is
         precluded because the two matters did not
         arise out of the same facts and circumstances.

    For the reasons stated in Whooley, we reject MCPO's

argument that Judge Thornton erred in ordering consolidation

here.

    Affirmed.




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