ON APPEAL FROM PEMBERTON TOWNSHIP MUNICIPAL COURT
[262 NJSuper Page 296] This is an interlocutory appeal taken after a hearing and finding of probable cause in the Municipal Court of Pemberton Township. At the time of the hearing the court is informed the defendant could not be located and did not appear. The appeal, therefore, was not filed by the defendant (who was also not
noticed of the appeal for the same reason) but was filed by Mr. Robert Weishoff, a member of the bar of this State, who, prior to the hearing and pursuant to Rule 7:4-4(b) requested the court to permit him to act as prosecutor in the case. The regular Municipal Prosecutor who was present and was ready to proceed consented. For reasons hereinafter outlined the Municipal Court Judge declined and the case proceeded. Concluding that the issue raised is an important one concerning the administration of Justice in our Municipal Courts, the court will decide the matter notwithstanding the unusual procedural posture and lack of notice to the defendant.
The charge against the defendant is that of defiant trespass in violation of N.J.S.A. 2C:18-3b, a petty disorderly offense. No police were involved, the charge having been levelled directly to the court clerk by the owner of an apartment complex, University Park Apartments, upon whose property the alleged trespass took place and whose owners have engaged Mr. Weishoff to represent it generally. In fact, the court takes notice that Mr. Weishoff represents a number of apartment complexes in Burlington County and regularly appears on their behalf in the Special Civil Part in eviction proceedings. It should be further noted that the defendant in this case was not a tenant but was the guest of a tenant. The reason Weishoff offered to step in as prosecutor sounded in assertions of familiarity with the facts of the case and his expertise in handling the legal problems of the complex. The Prosecutor, as stated above, agreed. He said:
However, I do concur with Mr. Weishoff's assessment of the situation, he represents the complex involved in this matter, he has had interviews with several of the witnesses, he has developed the pattern of this particular matter from beginning to end. And there are times in municipal court when there are other counsel who are more qualified on a particular case, based on the fact of their long-standing knowledge of the individuals involved. (Trans. p.4, lines 4-11)
Nonetheless, the court denied the request. Pointing out that his "policy is quite independent of the individual attributes of Counsel to whom it applies" (Trans. p.8, line 25, p.9, line 1) and
that his rule "is . . . certainly not a rule that is directed only at you, nor does it reflect any evaluation on my part of you or your adherence to the ethical precepts which guide the conduct of prosecutors" (Trans. p. 8 lines 6-8), the court ruled:
THE COURT; All right. I don't grant such requests. The principle (sic) reason being this: the prosecutor has an obligation, and that obligation is to the public, not to a private complainant. His obligation includes bringing to the Court's attention any information which is exculpatory as well inculpatory. That's not the whole extent of his obligation, but it's a feature of his obligation.
I find that employment by a private litigant, whether it be a complaining witness or another party who has an interest in the outcome, places the prosecutor in what I consider to be a difficult position. Because the prosecutor has an obligation to the person who employed him, and he has that other obligation to the public. It's conceivable that there may be tension between those obligations. Consequently I do not approve of private prosecutors when the public prosecutor is available.
Mr. Weishoff's skill with respect to trial of cases in municipal court is certainly well known and uncontested. His knowledge of the University Park Apartment Complex and the peculiar situations that may be present there is likewise acknowledged. But I don't find that those attributes justify a departure from the usual circumstance of ...