On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Crane, Milmed and King. The opinion of the court was delivered by King, J.A.D.
[172 NJSuper Page 380] Plaintiff Mondrow recovered verdicts in the Law Division of $5,000 in compensatory damages and $3,000 in punitive damages for the tort of malicious prosecution. Defendant Selwyn now appeals, raising eight contentions of error. We are satisfied that plaintiff failed to establish the element of favorable termination of the criminal prosecution for assault with intent to kill
which defendant commenced against him pursuant to N.J.S.A. 2A:90-2.*fn1 We find that the termination was indecisive at best.
The filing of the indictable charge against plaintiff arose out of an altercation which occurred in Pompton Lakes, Passaic County on March 15, 1976. Plaintiff Hyman Mondrow, whose legs had been amputated, had come to Pompton Lakes with his wife and two grown sons, Harlan and David, to pick up his car which had been specially adapted for his disability at the National Institute for Rehabilitative Engineering operated by defendant Selwyn. The altercation erupted while Mondrow was operating the car on a shake-down trip under Selwyn's supervision. At the termination of the tawdry tussle all of the principals retired to the local police station to file charges. Hyman and Harlan Mondrow filed nonindictable disorderly persons charges for simple assault against Selwyn, N.J.S.A. 2A:170-26.*fn2 Selwyn filed similar disorderly assault charges against David and Harlan Mondrow, and, of course, the subject indictable charge of assault with intent to kill against plaintiff Hyman Mondrow. The complaint signed by Selwyn charging the violation of N.J.S.A. 2A:90-2 stated as follows:
Upon oath says that, to the best of his knowledge, information and belief, the named defendant on or about the 15 day of March, 1976 in the Boro of Pompton Lakes, Municipal Code No. 1609, County of Passaic, N.J. did, while in the defendant's vehicle driving on Poplar Avenue, assault and strike the complainant using his hands, causing lacerations on both of the arms of the complainant, breaking his wrist watch, and verbally threatened to kill the complainant if the complainant did not get out of the car. After the complainant left the car, the defendant called for his son to kill the complainant.
Selwyn described the circumstances under which he chose to charge plaintiff with the indictable offense under N.J.S.A. 2A:90-2 as follows:
Q [By plaintiff's attorney]. Finally, sir, the assault with intent to kill, did anybody advise you to make that charge?
Q. Did you consult a lawyer for instance before you made the charge?
A. The police and the Borough Prosecutor looked up the statute and everything else. I had consulted my private attorney by telephone and he said that I should stick to the facts and rely on the municipal people for the advice as to the applicable charge.
Q. Did anybody tell you that the charge carried with it a possible penalty in State's Prison of 12 years?
Q. Did you ever ask what it might be, that you were ...