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State v. Brennan

Decided: December 21, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL A. BRENNAN, DEFENDANT-APPELLANT



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

Shebell, Gruccio and Landau. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

Defendant Michael Brennan appeals the denial of his motion to dismiss a motor vehicle complaint filed against him in the Belmar Municipal Court.

Following his arrest on July 18, 1987, defendant was served with a summons for a violation of N.J.S.A. 39:4-50, driving while intoxicated. Neither the complaint nor summons were

signed at the time the summons was served on defendant, although the summons did state the badge number of the issuing police officer. The summons stated on its face that the officer "will file a complaint in this court charging you with the offense set forth above."

Defendant moved to dismiss the criminal complaint based on lack of jurisdiction. His motion was heard in the municipal court on October 15, 1987, apparently following an adjournment of the initial return date on the summons of July 30, 1987. The municipal court judge held that the lack of signature was "not a fatal defect to the process and the pleading" and denied defendant's motion. The defendant then entered a conditional plea of guilty to the charge, with the stipulation that he could preserve for appeal any issues relating to the adequacy of service of process and jurisdiction. Defendant was sentenced, but his sentence was stayed pending appeal.

Defendant appealed to the Law Division and was heard on oral argument and the record below. By letter opinion dated March 2, 1988, the Law Division affirmed the municipal court ruling. The Law Division in affirming the municipal court's decision relied on R. 7:3-1(b) and stated:

No one will deny that a summons should be signed, made and issued, but after a reading of the rules, the cases, and considering the facts and circumstances of this case, particularly where the defendant was personally served with the summons while at headquarters, this Court is convinced that defendant was properly issued and/or served with process. Thus, the summons is not fatally flawed, and it could have been and was properly corrected prior to or during the trial of the matter.

R. 7:3-1(b) states, in relevant part,

[i]f the Administrative Director of the Courts has, pursuant to R. 1:32-3, prescribed the form of complaint and summons for non-indictable offenses, a law enforcement officer may make, sign and issue such complaint and summons, serving the summons upon the defendant and thereafter, without unnecessary delay, filing the complaint with the court named therein. . . . [Emphasis supplied].

The arresting officer used a four-part form approved by the Administrative Director of the Courts in issuing defendant the summons in question. ...


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