On appeal from Superior Court, Law Division, Ocean County.
King, Gruccio and Brochin. The opinion of the court was delivered by Gruccio, J.A.D.
On appeal, defendant Bradley Holup contends that his convictions for driving while intoxicated, N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; and an obstructed windshield, N.J.S.A. 39:3-74, should be vacated and all charges dismissed because the State failed to respond to his requests for discovery.
Defendant was issued a complaint-summons for the above violations on June 25, 1989. Trial was fixed for July 17, 1989, in the Seaside Heights Municipal Court. Defense counsel was granted an adjournment and a trial date was fixed for September 11, 1989. Apparently, the municipal court clerk did not deliver copies of the various complaints, appearances and discovery demands to the municipal prosecutor. While defense counsel contends that a demand for discovery was filed by him with the municipal court, there remains some confusion as to when and where the prosecutor's copy of the documentation, including the request for discovery, was sent and when it was received. The defense says that in addition to its July 5, 1989 demand for specific discovery, a second request referring to the earlier letter was also sent on September 5, 1989. Defendant's
appendix contains copies of the letters, both of which are addressed to "R. Drake, Clerk, Municipal Court of Seaside Heights," but only the first indicates that a copy was sent to "Ronald Hoffman, Prosecutor."
On September 11, 1989, defense counsel, defendant and their expert witness appeared for trial at approximately 4:00 p.m. Sometime later that evening, the case was called for trial at which time the municipal prosecutor requested a postponement because the breathalyzer operator was unavailable. In the ensuing colloquy, the municipal prosecutor admitted not delivering discovery, claiming that he did not know of the demand until that evening, and, at first, appeared unsure whether the case arose from local or State Police. The municipal prosecutor then offered defense counsel an opportunity to examine the discovery that evening and proceed with trial or adjourn the proceedings to another date. The municipal court Judge interposed that he appreciated defense counsel's position but unequivocally stated that the case would not be dismissed for the failure of the municipal prosecutor to provide discovery, and gave defense counsel the option to proceed that evening or to adjourn to another date. Defense counsel filed an interlocutory appeal with the Superior Court, Law Division.
Two days later, on September 13, 1989, the discovery was delivered to defense counsel. The Law Division Judge dismissed the interlocutory appeal finding that, under the circumstances, dismissal was not mandated. However, he did permit defense counsel to submit a certification of itemized costs and fees resulting from the municipal prosecutor's failure to provide discovery. The Law Division order provides that the municipal prosecutor should be permitted to be heard on the payment of counsel fees and costs by submitting an affidavit within 30 days or pay $2,873.83. Within the permitted period, the municipal prosecutor responded with a certification. At the subsequent hearing date, the municipal prosecutor contended that he did not receive the discovery request and suggested that such requests should be made to him at his private law
office and not addressed to his attention at the municipal court. He further claimed that the municipal court clerk had not forwarded the requests to him and that State v. Ford, 240 N.J. Super. 44, 572 A.2d 640 (App.Div.1990), holds defense counsel to an obligation to notify the municipal prosecutor personally of any deficiency in discovery and that service on the municipal court clerk was improper because State v. Prickett, 240 N.J. Super. 139, 572 A.2d 1166 (App.Div.1990), bars the municipal court clerk from becoming involved in the preparation of the State's case. The gist of the municipal prosecutor's argument was that the inconvenience directly resulted from defense counsel's own actions and was not a result of prosecutorial abuse.
After oral argument, the Law Division Judge vacated the original order assessing costs and fees because the facts did not justify his tentative decision, specifically finding that: (1) the request could have been sent to the municipal prosecutor's private office; (2) defense counsel could have notified the municipal court Judge of the deficiency at the calendar call rather than wait; and (3) defense counsel could have communicated the discovery failure to the municipal prosecutor. The case was then remanded to the municipal court for trial. Defendant was convicted there and again on de novo appeal to the Law Division.
We find the Law Division Judge acted properly by not assessing fees and costs and remanding the case for trial, and affirm his actions. R. 2:11-3(e)(2). In affirming the actions of the Law Division Judge, we are not unaware of the continued confusion faced by defense counsel in the municipal courts of our State. Despite the best efforts of the Administrative Office of the Courts and the Assignment Judges to bring a modicum of order and uniformity to these courts of limited jurisdiction, they have avoided the success of our ...