On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Pressler, Dreier and Brochin, JJ. The opinion of the court was delivered by Dreier, J.A.D.
Defendant appeals from a Law Division order affirming two decisions of the Irvington Municipal Court: the first denying his motion for an order that his guilty plea not be admissible in a civil matter, and the second refusing to reopen defendant's careless driving conviction based upon his guilty plea. We find that both decisions were dependent upon factual determinations which should not have been made without an evidential hearing, and therefore we remand this matter with directions to the trial court.
On April 30, 1991, defendant was involved in a motor vehicle accident in Irvington. He was issued a summons, signed by an Irvington police officer, for careless driving. N.J.S.A. 39:4-97. A week later defendant received seven additional summonses issued on the complaint of Karimu Harvey, Esq. who had been retained
to represent a minor severely injured in the accident. Ms. Harvey thereafter requested that the summonses be reviewed by the Essex County Prosecutor's Office under its policy of scrutinizing accidents involving death or serious injury. In November 1991 the summonses were returned to the Irvington Municipal Court, and in December, counsel received notice of the first hearing, which was scheduled for January 23, 1992. At defendant's request, the municipal court adjourned the hearing and rescheduled the matter for a February 13, 1992 "conference." Defendant's attorney informed Ms. Harvey of the conference by two letters in January.
On February 6, 1992, a week before the conference, Ms. Harvey informed defense counsel, the municipal prosecutor and municipal court that she intended to "prosecute the traffic offenses charged against" defendant.*fn1 The letter further informed all parties that Ms. Harvey could not attend the conference due to a prior commitment and requested that the trial Judge set the matter down for trial on one of several available dates listed therein.
On February 11, 1992, defendant's attorney checked with the Irvington Municipal Court clerk concerning the status of the February 13 conference. He was informed that a "trial" was scheduled for the 13th and that the defendant should appear and be ready to proceed. Apparently, Ms. Harvey had not been informed that her request for an adjournment had been acted upon and apparently denied, and that the matter was proceeding to trial rather than for a conference two days hence.
The Irvington municipal prosecutor, the defendant and defense counsel appeared as directed before the Irvington Municipal Court on February 13, 1992. The municipal court Judge requested that counsel confer while he dealt with other matters. Thereafter, counsel informed the court that defendant would plead guilty to careless driving and that the other charges would be dismissed as merged with the careless driving charge. The Judge agreed. Defense counsel then immediately requested that the plea of guilty not be admissible in a subsequent civil proceeding. According to his certification, defense counsel had already agreed with the municipal prosecutor concerning the non-evidential nature of the plea. The record shows the following:
THE COURT: Just for the record, this case has been before the Court at least on two other occasions. There was an accident, an individual was injured seriously. I have talked to all of the attorneys involved in the case and it's my understanding that the person is not dead, it wasn't fatal, but was injured. I have no problems with the careless driving plea based on that. The status of the injury has been determined. A plea of guilty to careless driving is accepted.
[DEFENDANT'S ATTORNEY]: Your Honor, I make one other request that pursuant to the Municipal Court Rule, whose number escapes me at the moment, I would like the plea of guilty not to be used at a subsequent civil proceeding which I anticipate will be filed as a result of the personal injury that did occur as a result of the accident.
THE COURT: [Mr. Prosecutor?]
[THE PROSECUTOR]: No objection to a sealing.
THE COURT: You send it in on a motion and I'll sign it for sealing.
[DEFENDANT'S ATTORNEY]: Thank you, Your Honor.
On February 21, 1992, as instructed, defense counsel submitted a motion to have the plea entered on a non-evidential basis pursuant to R. 7:4-2(b). Ms. Harvey received notice of the Disposition of the case at or about the time defense counsel forwarded his motion to seal the record of the plea. She advised the municipal court by letter that she objected to the manner of Disposition of defendant's charges and requested that the "matter be opened and set down for trial." She also filed a motion for leave to appeal to the Law Division, but the Law ...