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State v. Utsch

Decided: June 7, 1982.


On appeal from the Superior Court, Law Division, Cape May County.

Matthews, Pressler and Petrella. The opinion of the court was delivered by Pressler, J.A.D.


The primary issue on this drunk driving appeal is whether the proceedings conducted by the municipal court, whose conviction was affirmed on a trial de novo by the Law Division, violated defendant's constitutional guarantee against double jeopardy. We conclude that they did not and, accordingly, we affirm the conviction.

Defendant Ernest Utsch was charged on January 24, 1981 with operating a motor vehicle while under the influence of alcohol, in violation of N.J.S.A. 39:4-50. Several days thereafter his attorney made written request upon the Cape May City prosecutor for discovery, seeking all of the police reports relating to the charge. The prosecutor did not respond, and there is no reason to discredit his subsequent representation that his failure to do so was the result of inadvertent neglect. Nor did defendant's attorney make any other effort to obtain discovery in view of the apparently total disregard of his letter.

The charge was scheduled for hearing on March 11, 1981 by the lay-tenured municipal court judge of Cape May City, who commenced the proceedings by accepting defendant's not guilty

plea and asking both counsel if either had any motions to address to the complaint. Both counsel answered in the negative and the prosecutor called his first witness, the arresting officer. At that point defendant's attorney moved for an order prohibiting the officer from testifying because of the prosecutor's failure to have furnished him with his name as a person having relevant information. When this motion was denied, defense counsel moved for an order suppressing the officer's testimony because of the failure of the prosecutor to have furnished him with the reports regarding the police testing of the defendant for sobriety. During the course of argument on these motions defendant's attorney, without any reasonable provocation apparent in this record, accused the municipal court judge of bias and prejudice and was needlessly abrasive towards and accusatory of the bench. In any event, and in response to the second motion, the judge determined that defendant had in fact, although inadvertently so, been denied the discovery to which he was entitled. He, therefore, decided "to adjourn the matter so that discovery can be given" and undertook to fix a further hearing date in the future. An adjourned hearing date was not then fixed because of defendant's counsel's representation that he intended to pursue an interlocutory appeal from the court's denial of his motion to dismiss the charge for failure of the prosecutor to have furnished discovery.

No interlocutory appeal was, however, pursued and at the end of March 1981 defendant's attorney received a letter from the municipal court clerk advising that the matter had been scheduled for April 16, 1981, and further advising that "the matter will be heard de novo." The scheduled April hearing was postponed at defendant's request and the hearing rescheduled for early June. The original June date was also postponed at the prosecutor's request and the matter was finally proceeded with on June 26, 1981.

When the matter was called for hearing it was a different municipal court judge who presided. He advised the parties

that the original judge had disqualified himself from proceeding further because of the accusations which defendant's counsel had made against him at the initial hearing. Defendant's counsel then took the position that because of a new judge sitting and because of the " de novo " reference in the clerk's letter, the proceeding about to commence was not a continued hearing of the charge but was rather a new hearing thereof following a termination of the original hearing. He further argued that such a new hearing violated defendant's constitutional guarantee against double jeopardy. The substituted judge, in order to determine precisely what had transpired at the original hearing, directed that the tapes thereof be played back. He was satisfied therefrom that the original judge had not terminated the proceeding at the March 11 hearing but had only adjourned it. He was further satisfied that defendant would be in no way prejudiced by the matter going forward and that there was no constitutional or other impediment to proceeding.

We are satisfied, as was the Law Division on the trial de novo, that this ruling was correct.

At the outset, we are persuaded that defendant was entitled to the discovery originally requested and that it was error on the part of the prosecutor not to have provided it. See R. 7:4-2(g), which was amended effective September 11, 1978, to accord a discovery right to those municipal court defendants who "may be subject to imprisonment or other consequence of magnitude if convicted." Since a drunk driving charge may result in imprisonment and almost assuredly will result in some license suspension, there can be no question that the condition of the rule was here met. Compare State v. Roth, 154 N.J. Super. 363 (App.Div.1977), ...

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