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State v. Fox

Decided: April 22, 1991.


O'Hagan, R. W., J.s.c.


This appeal from the Long Branch Municipal Court arises from that court's "reconsideration" of its December 19, 1990, decision dismissing the charges against the defendant George Fox. The defendant had been charged with driving while intoxicated contrary to N.J.S.A. 39:4-50 (hereinafter "D.W.I."). On appeal, the defendant contends that the lower court did not have jurisdiction to reinstate the prosecution against him. The Superior Court, Law Division, reverses the decision of the Municipal Court reinstating the charges against the defendant George Fox and remands the matter to the Long Branch Municipal Court for the entry of a judgment of dismissal.


George Fox was issued a summons for D.W.I. on October 25, 1990, in the City of Long Branch. Initially, the case was given a December 5, 1990, trial date. On that date the State was not ready to proceed and, over the objections of the defendant, requested an adjournment. The Municipal Court, bearing in mind the Supreme Court directive to dispose of D.W.I. cases within sixty days,*fn1 granted the adjournment but marked the case on a try or dismiss basis for December 19, 1990. The court also specifically notified the defendant, his counsel, the municipal prosecutor, and the arresting officer of this designation and advised that no further notice would be given. On December 19th the police officer, notwithstanding this clear direction given by the Municipal Court Judge, failed to appear. As a consequence the State was not ready to proceed. At the defendant's request the court dismissed the complaint "with great reluctance."

Subsequent to this dismissal, the municipal prosecutor was contacted by a well respected attorney-at-law who expressed his concern over the dismissal of this matter without the court informing the victim, his daughter. The attorney advised the prosecutor that defendant's D.W.I. charge was prompted by the investigation of an automobile accident resulting in injuries to his daughter. No meaningful specification of the victim's injuries were set forth below, although both the police report and the defendant's counsel described fairly insignificant injuries. Due to his concern that the victim's rights might go unprotected, and with this additional information, on January 17, 1991, the municipal prosecutor filed a motion with accompanying affidavit requesting that the case be reinstated. On January 29, 1991, the motion was heard and the Municipal Court reinstated the charges against the defendant. The court found that it had acted under a mistaken view of the facts when it dismissed the charges on December 19, 1990, because no one had advised the court that there had been an accident and that another person had suffered injuries as a result. The court held that the provisions of N.J.S.A. 39:4-50.11 d(2) ("D.W.I. Victims' Bill of Rights") were applicable even in the absence of a timely notice by the victim.*fn2 The Municipal Court, pursuant to R. 1:1-2, determined that the interest of the victim and the severity of the charges required the relaxation of the rules of procedure to allow the court to relist the matter. The court characterized its reinstatment of the complaint as a reconsideration. The defendant now appeals this ruling.


At issue in this case is the proper procedure to reconsider and relist a matter that has been dismissed for lack of prosecution

in a municipal court. An examination of the relevant rules of procedure with a focus upon their scope and timing is in order.

Clearly, the first step to resolving any procedural quandary is to determine specifically what rules govern the actions of the court. In this matter we are concerned with the rules governing the municipal courts, i.e. Parts I, III and VII of the Rules Governing The Courts of The State of New Jersey.

Next, the specific rules governing the procedure in question must be examined. In the instant case, the municipal prosecutor sought the relisting of a matter that had been dismissed for lack of prosecution. Although there is no specific rule pertaining directly to the relisting of dismissed cases, one could interpret the prosecutor's motion to be a motion for rehearing pursuant to R. 1:7-4. That rule, made applicable to the municipal courts by R. 1:1-1, states that "upon motion made not later than 10 days after entry of final order or judgement, the court may grant a rehearing or may, on the papers submitted, amend or add to its findings and may amend the final order or judgment accordingly . . ."

Of importance to the analysis of any procedural question is the presence or absence of time limitations prescribed by the rules. The above stated rule governing the matter at hand sets forth a 10 day time limit for bringing this motion. This 10 day provision of R. 1:7-4 applies only to final orders and judgments to be distinguished from reconsideration of interlocutory orders which may, in the interest of justice, be filed in the court's discretion up to the time of entry of final judgment . Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250 (App.Div. 1987).

If time limitations are present in the body of the rule, and the motion before the court has not been filed in a timely manner, the court must determine whether the time limitations may be relaxed in the interest of justice. R. 1:1-2 addresses the relaxing of the court rules:

The rules in part I through Part VIII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration and and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed and dispensed with by the court in which ...

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