On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Gaulkin, Stern and Brochin. The opinion of the court was delivered by Stern, J.A.D.
Defendant was convicted in the Dover Township Municipal Court of violating N.J.S.A. 39:4-81, for failing to observe a traffic signal. A fine of $50 and $20 in costs were imposed. There was no contest as to guilt on the municipal appeal, and the same monetary sanctions were imposed on trial de novo. In addition, the Judge of the Law Division, like the municipal court Judge, ordered that defendant be "retested by D.M.V." However, defendant's license was not suspended, and there is no indication that the test was to be conducted before defendant would be permitted to drive again. The decision was apparently based on defendant's age. He was 81 at the time of the hearings.
The sole contention raised before us is that "the court was without jurisdiction and/or authority to order defendant to be reexamined for driver's license." Defendant argues that there is no express statutory jurisdiction to order the reexamination,
which the Law Division Judge acknowledged on trial de novo, and which the prosecutor does not now dispute. Defendant points to the legislative scheme which permits testing and examination only as ordered by the Division of Motor Vehicles, see N.J.S.A. 39:3-10; see also N.J.S.A. 39:3-11 (permitting the Director to impose conditions on licensure in light of an individual's physical condition).
The prosecutor responds only by stating that "appellate review of this matter is limited," and we must affirm a conviction where there is "sufficient credible evidence present in the record." While the prosecutor points to no evidence in support of that argument, we note that the complaint -- summons does include defendant's date of birth, apparently taken from his driver's license. We invited the Director of Motor Vehicles to address the legal issue as amicus, and we have the benefit of his view that "the municipal court Judge properly ordered Casalino tested."
The Law Division concluded that the municipal court Judge had inherent jurisdiction to enter the order for retesting. However, the municipal court is a statutory court and can exercise only the jurisdiction conveyed by statute. See e.g., N.J.S.A. 2A:8-19 to -25. See also State v. Barcheski, 181 N.J. Super. 34, 39, 436 A.2d 550 (App.Div.1981); State v. Bartek, 129 N.J. Super. 211, 217, 322 A.2d 826 (App.Div.1974) (noting ancillary jurisdiction where consistent with statutory authority to hear cases). Further, the Law Division cannot generally increase a sentence on trial de novo. See e.g., State v. Pomo, 95 N.J. 13, 468 A.2d 428 (1983); State v. Nash, 64 N.J. 464, 317 A.2d 689 (1974); State v. De Bonis, 58 N.J. 182, 276 A.2d 137 (1971).*fn1 Hence, we will assume for purposes of this opinion that if the municipal court could not have imposed the
direction as part of its sentence, the Law Division could not have done so.*fn2
The Director of Motor Vehicles, however, states in his amicus brief:
All of the statutes are phrased in terms of the Director's authority to deny or restrict the license; however, nothing prevents a magistrate from ordering that a licensee be retested when that licensee's ability to drive has been called into question. His order is, in essence, a referral to the Division of Motor Vehicles for its action. Notably, the magistrate in ordering the retest did not revoke or suspend the license, nor did he retain any jurisdiction over the issue of appellant's fitness to drive. The court's referral was supported by the court's observations of the licensee, the testimony it heard and the prosecutor's recommendation. The Division then assumes jurisdiction over the licensing question.
The Division depends on those who help to enforce its laws -- police officers, Judges -- to aid it in keeping the highways safe. This is not, as the Superior Court Judge reviewing this case said, a situation in which the municipal court Judge ordered every person over a certain age to be retested. Instead, based on the Judge's observations and the request of the prosecutor, the Judge ordered Casalino retested. It is a common practice for municipal Judges to refer those licensees they believe to pose a risk to public safety for retesting and it is absurd to suggest they have no authority to do so. Municipal Judges are in an excellent position to determine whether an individual should be retested, having both an opportunity to observe that individual and hear testimony about the accident or traffic violation that brought the licensee ...