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State v. Bernstein

Decided: November 18, 1955.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BERNARD C. BERNSTEIN, DEFENDANT-APPELLANT



Waugh, J.c.c.

Waugh

A complaint was made in the Municipal Court of Irvington, Essex County, New Jersey, alleging that the appellant operated a motor vehicle carelessly on August 26, 1955, within the Town of Irvington, in violation of N.J.S.A. 39:4-97.

Process (summons) was issued on August 26, 1955, the date of the alleged offense, in the form required by R.R. 8:10-1, "Uniform Traffic Ticket," requiring the defendant to appear before the magistrate of the Irvington Municipal Court.

The complaint was sworn to on August 30, 1955. The hearing thereon was adjourned from September 8, 1955 to September 27, 1955. The reason for such adjournment does not appear in the record, the case having been submitted without testimony.

Trial in the municipal court was held on September 27, 1955. The defendant was acquitted of the careless driving charge under N.J.S.A. 39:4-97. The magistrate then amended the complaint to charge a violation under N.J.S.A. 39:4-92, i.e. , "following too close to a fire apparatus." Thereupon the defendant was found guilty of the charge in the amended complaint and was fined $10 and assessed costs of $5.

It is not suggested that the appellant was surprised by the amendment, or that he requested any adjournment. The appeal is based solely upon lack of jurisdiction.

It will be noted at once that the amendment was made more than 30 days after the date of the alleged offense.

Appellant submits the case to this court solely upon the question of "lack of jurisdiction in the Municipal Court of Irvington." If that court lacked jurisdiction, there must be a reversal.

The alleged lack of jurisdiction is based on N.J.S.A. 39:5-3, which reads as follows:

"When a person has violated a provision of this subtitle, the magistrate may, within thirty days after the commission of the offense, issue process directed to a constable, police officer, an inspector of motor vehicles or the director for the appearance or arrest of the person so charged. A complaint may be made to a magistrate for a violation of sections 39:3-12, 39:3-34, 39:3-37, 39:4-129 or 39:10-24 of this title, at any time within one year after the commission of the offense. * * *"

This section, appellant contends, is the statute of limitations which bars the complaint, or an amendment of the original complaint charging an entirely different violation, made after 30 days has elapsed from the date of the alleged ...


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