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State v. Barnes

decided: September 22, 1980.

STATE OF NEW JERSEY (CITY OF NEWARK), PLAINTIFF -- APPELLANT,
v.
BUCK BARNES, DEFENDANT -- RESPONDENT.



Wilentz, Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock.

Clifford

The opinion of the court was delivered by CLIFFORD, J.

The question presented is whether the State may appeal from a county court*fn1 determination at a criminal de novo, R. 3:23-8, that a municipal ordinance is unconstitutional.

The defendants, Buck Barnes, Ronald Underwood, Emanuel Wright, James Wright and Earl Wright, were charged with a total of 116 violations of a Newark municipal ordinance regulating peddlers on the city streets.*fn2 Defendant Barnes was tried on one of the complaints against him in Newark Municipal Court and found guilty on June 28, 1977. Although the record is not clear, it is apparent that guilty pleas to the remaining 115 complaints were entered by Barnes and the other defendants. {PA}

Page }

{/PA}366 A variety of fines, suspended prison sentences and probation terms were imposed by the municipal court.

All the defendants appealed to the then Essex County Court. Their appeals were consolidated for a trial de novo on the record pursuant to R. 3:23-8. It appears that the only issue raised in that court was the constitutionality of the ordinance. In an unpublished opinion issued January 4, 1978, the county court found the ordinance under which the defendants were convicted to be unconstitutionally vague and overbroad on its face. A judgment reversing the convictions and acquitting the defendants was entered on March 21, 1978.

The State appealed the constitutional question to the Appellate Division. On May 8, 1979 that court dismissed the appeal, leaving the county court judgment of acquittal in full force and effect. 168 N.J. Super. 311, 315 (1979). The dispositive question was the State's right to appeal, an issue raised sua sponte by the court during oral argument. The Appellate Division held that the appeal was precluded as not coming within the terms of R. 2:3-1. 168 N.J. Super. at 314. At the time of the appeal from the county court determination of unconstitutionality R. 2:3-1(b) provided that the State could appeal from "a judgment of the trial court entered before or after dismissing an indictment,

accusation or complaint * * *."*fn3 The Appellate Division found that the State could not appeal because the constitutionality of the ordinance had not been raised "before or after trial" but rather had been raised furing the de novo hearing in the county court. 168 N.J. Super. at 314.

We granted the State's petition for certification to address the issue of whether the appeal is precluded by either our Rules or the double jeopardy clauses of the federal and state constitutions. 81 N.J. 349 (1979). We now reverse.

I

4

[1,2] It is by now well established that a constitutional challenge to a criminal enactment is properly raised for the first time at a trial de novo. State v. Celmer, 157 N.J. Super. 242, 245-46 (App.Div.1978), rev'd on other grounds, 80 N.J. 405 (1979). See also State v. Damiano, 142 N.J. Super. 457 (Law Div.1978) (where constitutionality of statute is dispositive of appeal, waiver of trial de novo is appropriate). The better practice for a municipal court is "to assume that an act is constitutional until it has been passed upon by the Appellate court, unless it is so clearly in contravention of the constitution that there can be no reasonable doubt about it * * *." In ...


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