Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant appeals from a judgment of the Warren County Court finding him guilty of drunken driving. He was sentenced to serve a three-month term in county jail and his driver's license was revoked for a period of ten years. The prison sentence and revocation were mandatory under N.J.S.A. 39:4-50, this being defendant's second drunken driving conviction. The first was in February 1955, at which time his driver's license was revoked for two years under the same statute. It was restored in February 1957, when the Director of Motor Vehicles, pursuant to R.S. 39:5-32, issued a validated license which defendant was to carry with him for three years.
A validated license, commonly known as a "red" license, from its color, is issued upon the termination of the revocation period imposed by a municipal magistrate or the Director of Motor Vehicles. On its reverse side appears the reason for the revocation of the original driver's license, the date and nature of the offense, and the dates of the revocation and restoration. When the validated license period terminates, the regular license is automatically returned
to the driver. Division of Motor Vehicles, Rules Governing Issuance and Administration of Validated Driver Licenses (July 1, 1952).
Defendant was arrested for drunken driving April 13, 1958. The complaint filed with the municipal court carried the word "red" after the driver's license number. The matter was heard some eight months later; the magistrate found defendant guilty as charged, sentenced him to three months in county jail and revoked his license for ten years. Defendant thereupon appealed to the Warren County Court, in accordance with R.R. 3:10-1 et seq. Such an appeal is heard de novo. R.R. 3:10-10(a).
Defendant's contention in the County Court was that he had not received a fair trial because the municipal magistrate had before him a complaint indicating that defendant's license was "red." To assure complete justice the State offered to obliterate from the complaint any reference to a "red" license and to have the case tried before a County or Superior Court judge, specially assigned, who did not know that defendant had or was alleged to have a validated license.
Instead of acting on the offer, defendant moved before the County Court to have the complaint dismissed on the ground that its reference to a "red" license was fundamentally unfair, highly prejudicial, and militated against an impartial hearing. The State countered with a motion to amend the complaint by deleting any reference to a "red" license. The county judge denied defendant's motion and granted the State's.
Defendant then sought leave to appeal under R.R. 2:2-3(a) from the order denying his motion. This Part denied leave to appeal, but suggested at the oral argument that considerations of fairness would seem to call for a retrial of the matter before a judge who knew nothing of defendant's license's being "red." Thereupon the State again offered to have the case heard de novo by a judge without knowledge of the prior offense. Defense counsel
requested an opportunity to discuss the matter with his client. He eventually declined to act on our recommendation, stating that "the item of the judge is immaterial." Accordingly, the order denying leave to appeal contained no provision that the matter be heard by a judge without prior knowledge of the case, and directed the County Court to proceed in accordance with R.R. 3:10-1 et seq.
The case came on for hearing on the merits before Judge Schechter, the only county judge in Warren County, who, of course, knew that defendant's license was "red" because he had earlier heard the motion to dismiss the complaint. He found defendant guilty as charged, and entered the judgment required by law and now before us on appeal.
Defendant argues two grounds for reversal: (1) the original presence of the word "red" on the complaint deprived him of a fair trial de novo before the County Court; and (2) the statement in the notice of appeal of the nature of the offense and the sentence imposed, required under R.R. 3:10-3, was highly prejudicial because it brought to the attention of the county judge the fact that defendant had previously been convicted of drunken driving, so that in the circumstances the rule ...