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State v. Salzman

Decided: October 27, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERIC SALZMAN, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Essex County.

J. H. Coleman and O'Brien.

Per Curiam

The problem presented in this appeal is whether convictions based on improper complaints in municipal court proceedings for violating a noise abatement ordinance should be permitted. For the reasons which follow, we hold they should not and reverse.

Defendant Eric Salzman was convicted in the Township of Montclair Municipal Court for permitting his dogs to bark late at night and early in the morning on six occasions in violation of Township Ordinance Art. III, § 166-11 (1947). He was fined $6,000 plus $50 costs. Upon his de novo appeal to the Law Division he was again found guilty but the fines were reduced

to $2,600. Defendant has appealed. We now reverse in part and affirm in part.

The proceedings were initiated on February 20, 1985 when Policeman Kurt Reinhardt issued Summons # 3355 alleging that Karin M. Salzman of 10 Waterbury Road, Montclair had violated Montclair Ordinance Art. III, § 166-11 (1947) on February 20, 1985. Before trial, Eric Salzman was substituted as the defendant. The offense was described as "noise -- dog barking." The summons which was issued and signed by K. Reinhardt stated that the officer would file a complaint charging defendant with the described offense. A complaint was filed by Officer Reinhardt. (See copy of Complaint and Summons attached). The copy of the complaint which is annexed to this opinion was submitted to us directly at our request by Gloria DiMiro, Clerk of the Montclair Municipal Court Clerk. Eric Salzman was found guilty of violating the ordinance. On the de novo appeal, defendant's $1,000 fine was reduced to $500 on this complaint.

Even though defendant does not directly argue before us that the complaint issued by Officer Reinhardt was defective, we are constrained to raise it sua sponte. As we observed in State v. Ross, 189 N.J. Super. 67, 73 (App.Div.), certif. den., 95 N.J. 197 (1983), an alleged violation of a noise abatement ordinance by a barking dog is quasi-criminal in nature and the rules of criminal practice must be strictly followed. In Ross we stated:

Because of the nature of the proceedings here, process was required generally to conform to the requirements applicable to indictable offenses. See R. 7:3-1. Among those requirements is the mandate that process issue only by a judge or clerk or deputy clerk of his court and only if the official issuing process is satisfied from the complaint that there is probable cause to believe that defendant has committed an offense. R. 3:3-1(a), 3:3-2. In lieu of the primary process of a warrant, a summons may issue if the official is satisfied that the accused will appear in response thereto and none of the other warrant-mandating criteria of R. 3:3-1(b) is present. The only modification in this procedure in respect of nonindictable criminal offenses within the municipal court jurisdiction is the authorization of R. 7:3-1(b), permitting a summons to

be issued by a law enforcement officer where the Administrative Director of the Courts has prescribed the form of summons and complaint.

Id. at 73 (emphasis added).

Officer Reinhardt utilized the form of summons and complaint prescribed by the Administrative Director of the Courts pursuant to R. 7:3-1(b) and R. 1:32-3. This form of summons and complaint which may be issued by a law enforcement officer for nonindictable offenses is a set of four differently colored pages: the summons (white), the complaint (blue), the officer's copy of the complaint (yellow) and the police copy of the complaint (pink). (See Complaints and Summonses attached). The white summons is to be served on the accused which contains a printed notification that "the undersigned will file a complaint in this court charging you with the offense(s) set forth above." The complaint must be signed and sworn to by the officer issuing the summons before a person authorized by R. 3:3-1(a) and it must be filed without unnecessary delay. The prescribed form complaint contains a statement by the officer that he or she has a just and reasonable basis to believe and does believe the person named committed the offense charged.

It is clear on the face of the complaint filed in connection with Summons # 3355 that Officer Reinhardt did not sign and swear to the complaint in the presence of a person as required by R. 3:3-1(a) and R. 3:3-2. Ross instructs that a law enforcement official who utilizes the form of complaint and summons authorized by R. 7:3-1(b) must nonetheless have his or her oath taken on the complaint by a judicial officer, court clerk or deputy court clerk who must also make a probable cause determination that an offense has been committed. State v. Ross, 189 N.J. Super. at 74. The form of complaint used by the officer required him to sign and swear to the complaint in the presence of such authorized person who was to make a probable cause ...


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