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State v. Kenison

Decided: February 6, 1990.

STATE OF NEW JERSEY, PLAINTIFF,
v.
THOMAS R. KENISON, DEFENDANT. STATE OF NEW JERSEY, PLAINTIFF, V. ROBERT MADSEN, DEFENDANT



Kole, J.A.D. (Retired and temporarily assigned on recall).

Kole

[248 NJSuper Page 191] The issue presented in these cases is the validity of a complaint-summons issued in connection with prosecutions and convictions in the municipal court for violation of a disorderly persons statute -- here, N.J.S.A. 2C:14-4 (lewdness). The matter was raised for the first time, by motions to dismiss the complaints-summonses and reverse the convictions, in these de novo appeals to this court from defendants' convictions in that court for lewdness. This, of course, can be done. See State v.

Salzman, 228 N.J. Super. 109, 111, 549 A.2d 46 (App.Div.1987); State v. Ross, 189 N.J. Super. 67, 72, 458 A.2d 1299 (App.Div.1983), certif. den. 95 N.J. 197, 470 A.2d 419 (1983).

The manner in which the complaint-summons was issued is similar in each case.

The lewdness offense involved a charge of masturbating in the men's room at the Vince Lombardi service area (Vince Lombardi), located on the New Jersey Turnpike in the Borough of Ridgefield, Bergen County. For the purpose of these motions, the facts will merely be given sketchily.

On the night of October 16, 1988, defendant Kenison was in front of a urinal in the back urinal area of the men's room. At the next or nearby urinal was a State Police Trooper, John O'Rourke, in plainclothes. After he observed Kenison masturbating some distance from the urinal in which Kenison had been standing, he stated he was a State Police officer, placed Kenison under arrest, took him to an area of Vince Lombardi used by the State Police as an alleged substation or satellite of its Newark turnpike station, and filled in a complaint-summons factually charging the lewdness offense. O'Rourke signed the complaint, which stated that it was signed under oath, and the alleged oath was taken by State Trooper Richard Gacina, the other trooper on the lewdness detail at Vince Lombardi. O'Rourke signed the summons portion of the complaint form. The complaint-summons was then served by O'Rourke on defendant Kenison, who was then released.

On the night of November 3, 1988, Trooper Gacina arrested defendant Madsen under somewhat similar circumstances. Madsen was in front of a urinal in the back urinal area of the men's room. At the next or nearby urinal was Trooper Gacina in plainclothes. After he observed Madsen masturbating some distance from the front of the urinal in which Madsen had been standing, Gacina stated he was a State Police officer, placed Madsen under arrest, took him to the same area of Vince Lombardi used by the State Police as an alleged substation or

satellite of its Newark turnpike station, and filled in a complaint-summons factually charging the lewdness offense. Gacina signed the complaint, which stated that it was signed under oath, and the alleged oath was taken by State Trooper O'Rourke, the other trooper on the lewdness detail at Vince Lombardi. Gacina signed the summons portion of the complaint form. The complaint-summons was then served by Gacina on defendant Madsen, who was then released.

[1] Relying on Ross and Salzman, supra, both Appellate Division cases, defendants contend that the complaint-summons issued in their cases are so legally deficient as to warrant a dismissal thereof and a reversal of their convictions.

The holdings in Ross and Salzman were recently summarized by the Supreme Court in State v. Gonzalez, 114 N.J. 592, 601, 556 A.2d 323 (1989), where it held that the trial court in Gonzalez erroneously determined that a uniform traffic summons was invalid because of the absence of a "neutral, impartial" determination of probable cause after a probable cause hearing by a judge, clerk or deputy clerk.*fn1 The Supreme Court said:

The Appellate Division has held that when a private citizen files a complaint in a matter involving a non-traffic municipal offense, a summons may not issue unless there is a finding of probable cause by a judge, clerk or deputy clerk. State v. Ross, 189 N.J. Super. 67, 74 [458 A.2d 1299] (App.Div.1983). In Ross, neighbors of the defendant, disturbed by her dogs barking late at night, filed complaints charging her with violating the anti-noise ordinance, and themselves signed the summons. Id. at 70-71 [458 A.2d 1299]. The court found the issuance of the summonses by the complaining witnesses to constitute "so egregious a violation of the underlying principles of proper practice as to require the reversal of both convictions". Id. at 72 [458 A.2d 1299]. In State v. Salzman, 228 N.J. Super. 109 [549 A.2d 46](App.Div.1987), the court found that a probable cause hearing was also necessary for a complaint signed by a police Page 194} officer when a summons had already been issued for the violation of an anti-noise ordinance. [ Id. at 601, 556 A.2d 323]

In Ross, the Appellate Division gave as a reason for its concern, even though a summons, rather than a warrant, was issued, the following: The proceedings are quasi -criminal in nature. Although there is a qualitative difference in consequences -- deprivation of freedom where a warrant is involved -- still, the summons in lieu of warrant is not without consequence. It initiates the criminal process, compels appearance to answer the complaint, and may lead to the routine issuance of an arrest warrant upon failure of appearance.

Further, the court said:

... While it is evidently the lesser consequential significance of a summons and the lesser consequence of matters within municipal court dispositional jurisdiction which justify the law enforcement officer exception of R.7:3-1(b), it is the nevertheless grave import of the summons, in the structure of the criminal justice process, which requires that a probable cause determination be made as the prerequisite for its issuance as well and which also requires a strict construction of R.7:3-1(b) to the end that an appropriate neutral official make the determination. For the determination to be made by the complaining witness and for the summons to be issued over his signature is fundamentally offensive to the most elementary notions of due process, violates the spirit if not the letter of the Fourth Amendment, and is a blatant and intolerable violation of our rules of practice. The criminal and quasi-criminal system is neither designed nor intended to provide a vehicle for the raising and settlement of purely private disputes. The process here, therefore, constituted a subversion of the basic distinction between criminal and civil justice. [189 N.J. Super. at 74, 458 A.2d 1299]

R.7:3-1(b), which contains the law enforcement officer exception to which Ross referred, provides that in the municipal courts, if the Administrative Director of the Courts, pursuant to R.1:32-3, has 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 defendant and thereafter filing the complaint with the court named therein. R.1:32-3 provides that the Administrative Director may, "subject to the approval of the Supreme Court, prescribe forms of process and such other forms for the implementation of these rules as shall be necessary from time to time."

The concern expressed in Ross and Salzman as to the effect of a summons issued in a quasi -criminal matter without a probable cause hearing has been somewhat diminished by the Supreme Court's dictum in Gonzalez. There, while it discussed only the traffic offense summons, it recognized the serious consequences of a guilty determination that might result in such cases. Nevertheless, it said, as to the situation where a summons (as distinguished from an arrest warrant) is issued for a quasi -criminal traffic offense:

We also note that citizens are not without protection in the absence of a formal probable cause hearing. We assume that most police officers perform their duties honestly, conscientiously, and well. Part of that job includes the duty not to issue citations for violations unless the officer has probable cause.... By signing the statements on the complaint that there are "just and reasonable grounds to believe that the person named above committed the offense(s) herein set forth [contrary] to law," the officer so attests. [114 N.J. at 601, 556 A.2d 323]

****

...When a warrant is issued for a person's arrest, it is of course necessary for a judge, clerk, or deputy clerk to determine if there is probable cause that the particular suspect has committed the offense.... Although under the circumstances a police officer may arrest without a warrant,... if the arrested person is to be detained for any significant amount of time, a determination of probable cause must be made....

Without the risk of detention, a suspect's interests in liberty and freedom from unreasonable prosecution are still paramount, but the procedures required to protect those interests need not be as extreme or absolute, because the threat to those interests is not as great. Determining what process is due necessitates an analysis of the underlying factors and circumstances, including not only the threat to a suspect's liberty but also the hindrance of law enforcement the process would create. [ Id. at 603-604, 556 A.2d 323]

When a citizen is not subject to arrest or detention, therefore, as is the case with a summons, there is no constitutional requirement that a magistrate determine probable cause. Gerstein, supra, 420 U.S. [103 at 119, 125 n. 26, 95 S. Ct. 854, 865, 869 n. 26, 43 L. Ed. 2d 54]...,(probable cause determination is "not a prerequisite to prosecution by information," and "is required only for those suspects who suffer restraints on liberty other than the condition that they appear for trial."); United States v. Birkenstock, 823 F.2d 1026 (7th Cir.1987); United States v. Bohrer, 807 F.2d 159 (10th Cir.1986)(United States Constitution requires no showing of probable cause when a summons instead of a warrant issues on an information for an Internal Revenue Code violation); see also United States v. Millican, 600 F.2d 273, 275 (5th Cir.1979)(Constitution

does not mandate reversal of conviction of one charged with Internal Revenue Code violation whose summons has not been verified but "as a matter of practice...defendant should have been afforded a probable cause hearing," where he has repeatedly requested one) cert. denied, 445 U.S. 915, 100 S. Ct. 1274, 63 L. Ed. 2d 598 (1980). Under these parameters, the procedure required below is by no means constitutionally mandated; not only would it apply to a summons, but it would be invoked well after the initial issuance. The process would offer little good at great cost. [ Id. at 605, 556 A.2d 323]

...Nonetheless, it is clear not only from our reading of Rules 7:6-1 and 7:3-1 but from the policy on which the Rules are based that they apply to these more serious offenses as they so to all traffic offenses. The Rules have been arrived at by the same balancing of the intrusion on individual interests with the needs of law enforcement as forms the basis for the constitutional distinctions determining what process is due when either a warrant or summons is issued. In determining whither a probable cause finding is necessary, the focus of this balancing is always on the intrusiveness of the process charging the offense, and not on the seriousness of the consequences that would result in the event of a conviction. [ Id. at 607, 556 A.2d 323; emphasis supplied]

It would appear that the form of complaint-summons ("CDR 1, Rev. 1-82") used in these cases is not a form approved by the Administrative Office of the Courts (AOC) under R.7:3-1(b). Indeed, as indicated in a recent exchange of letters (dated June 26, 1989 and July 11, 1989), attached to defendants' brief, between an attorney in another case and the AOC, it appears that the last forms for disorderly persons and nonindictable offenses (other than traffic) promulgated by it under R.7:3-1(b) involved forms similar to those complaints and summonses dealt with in Ross and Salzman.

Hence, it is questionable whether the law enforcement officer exception in R.7:3-1(b) even applies here. Thus, CDR-1 is not a form of complaint and summons for non-indictable offenses with respect to which a law enforcement officer, under that rule, may make, sign and issue a complaint and summons. Under these circumstances, the general provisions of R.7:3-1 relating to criminal nonindictable offenses in the municipal court would apply here,--that is, R.3:2 (complaint), R.3:3 (summons or warrant upon complaint), R.3:4-1 (procedure after arrest) and R.3:4-2 (procedure after filing of complaint).

It is interesting to note, however, that this complaint-summons form (CDR-1) and a complaint-warrant form (CDR-2)

were forms that were devised jointly by the New Jersey State Police and the Administrative Office of the Courts in 1968 and have been in use by the State Police for matters in municipal courts since that date, apparently with revisions. Thus, for example, the complaint-summons in the present case shows "Rev.1-82". See ...


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