On appeal from the Superior Court, Law Division, Ocean County
King and Gruccio. The opinion of the court was delivered by Gruccio, J.A.D.
Defendant appeals from the denial of a motion to dismiss the charge of operating a motor vehicle under the influence of alcohol, N.J.S.A. 39:4-50. Essential to our resolution of this case is a discussion of the questions of judicial discretion and the roles of the municipal prosecutor, municipal court clerk and defense counsel.
On December 8, 1988, defendant was stopped by a state trooper in the Borough of Tuckerton, Ocean County, and charged with operating an automobile while under the influence of alcohol, a violation of N.J.S.A. 39:4-50. On April 24, 1989, defense counsel entered an appearance, demanded discovery and filed a motion to compel discovery. This demand went without response from the municipal prosecutor or action by the municipal court judge. The municipal court clerk mailed a notice dated March 13, 1989, scheduling the trial for 1 p.m. on April 6, 1989. For reasons not apparent from the record, the trial date was then rescheduled for June 22, 1989, at 9:30 a.m., by notice dated May 12, 1989. That notice contained the language:
" THIS IS A SPECIAL SESSION OF COURT -- NO ADJOURNMENTS WILL BE ALLOWED."
On June 19, 1989, three days before the scheduled trial date, defense counsel wrote a letter requesting a continuance because of a lack of response to his motion served April 24, 1989, which, among other things, sought an order directing production of ampoules for testing. That application for a postponement was denied without factual findings or explanation, a predicate to our determination of the propriety of the municipal court's decision. State v. Sisti, 209 N.J. Super. 148, 506 A.2d 1307 (App.Div.1986); State v. Hardy, 211 N.J. Super. 630, 635, 512 A.2d 545 (App.Div.1986). As directed, defense counsel, defendant and an expert witness appeared and answered the calendar call at 10 a.m. on June 22, 1989. They remained in the court ready for trial while the judge disposed of other cases.
The municipal court clerk subpoenaed the arresting state trooper on May 15, 1989. The trooper contacted the municipal court clerk on May 22, 1989, and advised her that he had a vacation scheduled June 22, 1989, and was apparently excused by the clerk; however, the case remained on the peremptory list.*fn1 This information was first communicated to the municipal court judge, municipal prosecutor and defense counsel on the afternoon of June 22, 1989.
Defense counsel, who was in court from 10 a.m. to 3:30 p.m., promptly moved for a dismissal which was opposed by the municipal prosecutor and denied by the municipal court judge, again without factual findings. On appeal to the Law Division, defendant's motion for dismissal based on "the right to speedy trial and confrontation" was again denied and the matter remanded to the municipal court for trial and consideration of
sanctions "against the State or town or whoever is at fault."*fn2
On appeal defendant raises the following issues:
1. Where the trial court has set a peremptory date for trial and defendant appears ready with expert witnesses to proceed to trial on the date set certain and has been given no advance notice as to any requests for adjournment by the State, where the State's chief witness has been subpoenaed and fails to appear for no good cause ...