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State v. Menke

Decided: October 7, 1957.


For affirmance -- Chief Justice Weintraub, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Francis. For reversal -- None. The opinion of the court was delivered by Francis, J.


Defendant Elias T. Menke was convicted in the municipal court of leaving the scene of an automobile accident in violation of N.J.S.A. 39:4-129. His appeal was dismissed by the County Court, and on further review the Appellate Division not only affirmed the action of the County Court but also sustained the position of the State on the basic issue involved.

The record reveals that at the trial in the local tribunal the State rested after introducing certain evidence. The nature of this evidence has not been revealed to us. Defendant then applied for dismissal alleging, in effect, total absence of proof of guilt of the charge. The court refused to dismiss, holding that a prima facie case had been made out which was adequate to put him to his defense. At this, the defendant announced through his attorney that he would not take the stand. Instead, he rested and moved for a judgment of acquittal on the ground already urged. Before ruling, the court reopened the case, apparently at his own instance, and over the defendant's objection permitted a police officer, who had investigated the matter, to testify. Up to that point the officer had not been called as a witness. What he said does not appear in the appendix. Defendant elected to stand on the motion for acquittal and declined to

cross-examine. The motion was denied and a judgment of guilt pronounced.

Two weeks later, defendant unsuccessfully moved "to vacate the judgment of conviction," alleging that the reopening of the case constituted a denial of procedural due process. Subsequently, he appealed to the County Court. There his endeavor was to limit consideration of the matter to the single issue of the propriety of the ruling of the magistrate with respect to the reopening. However, the County Court, pointing to R.R. 3:10-1 et seq., advised him that the notice of appeal constituted an application for a plenary trial de novo and that such remedy would be given. Upon refusal to accept a full trial, the appeal was dismissed. This action was proper. State v. Simpkins, 8 N.J. Super. 194 (App. Div. 1950).

In order to simplify review of convictions in municipal courts, this court adopted a comprehensive scheme for the regulation thereof by means of R.R. 3:10-1 through 3:10-14, and R.R. 8:11-1. It is stated specifically that those rules provide the "only method" of reviewing such a judgment of conviction, that is, by appeal to the County Court except where the local judge is also judge of the County Court, in which event the Law Division of the Superior Court is substituted. R.R. 3:10-1.

The appeal operates as a waiver of all defects in the record or process or complaint, and as a consent that the court may amend the complaint in form or substance before or during the hearing of the matter so as to make the charge more specific or in any other manner, including the substitution "of any charge growing out of the act or acts complained of or the surrounding circumstances," of which the tribunal below had jurisdiction. R.R. 3:10-10(b).

The most recent revision of R.R. 3:10-10(a) directs that if the trial proceedings were taken stenographically or by sound recording, the appeal shall be heard de novo on the record so made unless by reason of some action taken under subsection (b), referred to, the rights of either party may be prejudiced. In all other cases the procedure required is

a plenary trial de novo. As Justice (then Judge) Jacobs said in State v. Simpkins, supra, at page 197, these rules were designed to afford wide protection to the defendant by enabling a full and fair hearing in the County Court on the merits.

In deference to the old certiorari practice which provided a limited direct review in the former Supreme Court in certain types of cases, and to Article VI, Section V, paragraph 4, of the Constitution of 1947, this court recognized the existence of a direct appeal to the Appellate Division upon leave granted to do so under R.R. 2:12-1 and 2. However, its availability is strictly confined to extraordinary cases, such as where the jurisdiction of the municipal court is questioned on persuasive grounds, or where the complaint is palpably defective. State v. Yaccarino, 3 N.J. 291, 296 (1949). Use of that practice is discouraged because of the broad area of recourse to the County Court, and in view of the stricture of R.R. 4:88-14, leave to bypass that court will be granted only where the interests of justice manifestly require it. State v. Yaccarino, supra, at page 297.

In this case, therefore, the County Court, mindful of the scope of the rules under discussion and aware that an error of the nature asserted could be avoided or corrected on a trial de novo, tendered such a review. When the offer was rejected by defendant, obviously in an effort to avoid a new ...

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