On appeal from Superior Court of New Jersey, Law Division, Camden County.
Brody, Landau and Humphreys, JJ. The opinion of the court was delivered by Brody, J.A.D. Humphreys, A.j.s.c. (Temporarily Assigned, Dissenting).
On September 8, 1988, defendant was convicted in a Municipal Court of operating a motor vehicle (a motorcycle) while under the influence of liquor (DWI). N.J.S.A. 39:4-50. Patrolman Robert Kane testified for the State. He reported that defendant's breath registered .14% on the breathalyzer and described his observations of defendant's erratic driving. The Municipal Court Judge found that defendant was guilty both per se because he registered a breathalyzer reading of .10% or more by weight of alcohol in his blood and because the manner in which he operated his motorcycle bespoke intoxication. The Judge suspended defendant's driver's license for six months and imposed the mandatory minimum fine of $250. Defendant did not appeal the conviction.
He now appeals from an order denying his motion for a new trial based on newly discovered evidence that on August 29, 1991, Officer Kane pled guilty to the crime of official misconduct, a violation of N.J.S.A. 2C:30-2. Defendant filed his motion in the Municipal Court on October 15, 1991, more than three years after his conviction. He submitted no evidence to support the motion. He claimed in his brief, however, that Kane's misconduct was "falsifying breathalyzer test results and stealing money from
citizens subject to investigation and arrest." Defendant did not claim that Kane admitted having falsified defendant's breathalyzer reading. Municipal Court Judge Rand and later, on appeal, Superior Court Judge Natal denied the motion. Judge Natal held that the motion was time-barred. He added that even if it were not time-barred, Kane's plea in 1991 was not probative of whether he testified truthfully at defendant's trial in 1988.
We agree that defendant's motion for a new trial was barred by the two-year limitations period of R. 7:4-7, a period that may not be enlarged by the parties or the court. R. 1:3-4(c).
The criteria for granting a new trial and the limitation periods for seeking such relief differ depending on whether the judgment sought to be vacated had been entered in a criminal matter in the Superior Court (R. 3:20-1), in a Municipal Court matter (R. 7:4-7) or in a civil matter in the Superior Court (R. 4:50).
We first compare the Rule pertaining to criminal matters in the Superior Court with the Rule pertaining to Municipal Court matters. Rule 3:20-1, the Superior Court Rule, provides in relevant part:
The trial Judge on defendant's motion may grant him a new trial if required in the interest of Justice. If the trial was by the Judge without a jury, he may, on defendant's motion for a new trial, vacate the judgment if entered, take additional testimony and direct the entry of a new judgment.
Rule 3:20-2 provides in relevant part that a "motion for a new trial based on the ground of newly-discovered evidence may be made at any time . . . ." By contrast R. 7:4-7, the Municipal Court rule, provides in relevant part:
The court may, on defendant's motion, grant him a new trial if required in the interest of Justice. The court may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made only before, or within 2 years after, final judgment . . . . In no event shall this rule be construed to limit the right of a defendant to apply to the court for a new trial on the ground of fraud or lack of jurisdiction.
Thus, although in both kinds of cases the standard for granting a new trial is "if required in the interest of Justice," there is no limitations period for making such a motion in a Superior Court
criminal matter but there is a two-year limitations period in Municipal Court matters such as a DWI conviction. See Romano v. Kimmelman, 96 N.J. 66, 92, 474 A.2d 1 (1984) where the Court declined to relax or enlarge the two-year limitations period even for a defendant who had been convicted of DWI by a false breathalyzer reading caused by radio frequency interference. We must therefore address the threshold issue, not presented in criminal matters in the Superior Court, of whether the two-year limitations period applies in light of the exception for "fraud," a term not defined in the Rule.
That brings us to the Rule for obtaining relief from a civil judgment on the ground of "fraud." Caselaw has interpreted what fraud means as used in that Rule. Rule 4:50-1 provides in relevant part:
On motion, with briefs, and upon such terms as are just, the court may relieve a party . . . from a final judgment or order for the following reasons: . . . (c) fraud (whether heretofore denominated intrinsic or extrinsic) . . . .
Rule 4:50-2, incidentally, imposes a one-year limitations period for making such a motion on the ground of fraud.
Justice Brennan, then writing for our Supreme Court, held that perjurious testimony may constitute fraud warranting a new trial under the civil practice Rule. Shammas v. Shammas, 9 N.J. 321, 328, 88 A.2d 204 (1952). He cautioned, however, that to warrant relief the party claiming that an issue was decided on the basis of perjurious testimony must do much more than raise a reasonable question respecting the witness's credibility:
And in any event, a court may not set aside a final judgment merely because some testimony is perjured. All perjury is an affront to the dignity of the court and to the integrity of the judicial process, but the law is not without other effective means to punish the perpetrator of the crime. [Citation omitted.] Perjured testimony that warrants disturbance of a final judgment must be shown by clear, convincing and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result. [ Id. at 330, 88 A.2d 204.]
We conclude that the same test must be applied to the adequacy of the proof of perjurious testimony offered to avoid the two-year limitations period in R. 7:4-7. A defendant must present "clear, convincing and satisfactory evidence" of perjury. Here, defendant presented no evidence at all. He merely claimed in his brief that three years after his conviction for DWI, Kane pled guilty to misconduct in office based on making false breathalyzer readings.
Defendant's attorney conceded the point. The following excerpt from the argument before Judge Natal demonstrates the total absence of evidence before the court and ultimately the concession by defendant's attorney that he was unable to avoid the time bar:
[DEFENDANT'S ATTORNEY]: Well, in that regard, your Honor, there was nothing presented to Judge Rand that evidences the fraud. Mr. Hill would hope --
THE COURT: (Interposing) Okay.
[DEFENDANT'S ATTORNEY]: (Interposing) In the retrial of this matter to use evidence rules 47 and 55.
THE COURT: I know, Counsel, but you would not even get to a retrial if you have not made a showing there was any fraud to ...