On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Before Judges Shebell, Wallace and Kleiner. The opinion of the court was delivered by Shebell, P.J.A.D.
The opinion of the court was delivered by
This appeal involves the question of the propriety of permitting personal counsel for a complainant to prosecute a quasi-criminal complaint in municipal court, as permitted under R. 7:4-4(b). Three complaints were filed by Pamela Jean Young (complainant), against defendant, Richard Storm, in the Woodbridge Municipal Court. Two complaints charged stalking, contrary to N.J.S.A. 2C:12-10.1b, and the third complaint charged harassment, contrary to N.J.S.A. 2C:33-4. Subsequently, the two stalking charges were downgraded by the Middlesex County prosecutor from indictable charges to harassment, disorderly persons charges, and returned to the Woodbridge Municipal Court. Thereby, all three harassments complaints were pending in that court.
On or about February 28, 1994, defendant filed a civil complaint in the Special Civil Part against the complainant. This complaint was dismissed with prejudice on April 18, 1994. The dismissal was appealed on June 1, 1994. On appeal, we reversed that dismissal and remanded the matter.
It appears that Robert Hedesh, as the personal attorney for Pamela Young, was requested by the Woodbridge Municipal Prosecutor to prosecute the three harassment complaints. Richard S. Lehrich, defendant's counsel, objected to Hedesh acting as prosecutor and moved before the municipal court for his disqualification. On February 22, 1994, the Municipal Court Judge ruled that Hedesh would be permitted to prosecute the complaints. Defendant moved for leave to appeal the interlocutory order to the Law Division. Defendant's motion was denied on April 4, 1994.
We granted leave to appeal the denial on May 19, 1994. Thereafter, the New Jersey Association of Criminal Defense Lawyers and the Attorney General were each granted leave to participate as amicus curiae. Counsel for Young was granted leave to intervene.
We were advised at oral argument on this appeal that defendant has now been indicted for stalking Pamela Young. While this change in events at some point may moot the issue presented if all pending matters are removed to the Superior Court, the issue may again arise in this case, and it is a matter of recurring concern. We, therefore, choose to render our ruling at the present time.
On February 22, 1994, the Woodbridge Municipal Court held a management conference on the three complaints pending against defendant. The Judge heard argument with respect to complainant's private attorney acting as prosecutor. Defense counsel asserted that because Hedesh is the complainant's private attorney there exists a conflict of interest thereby creating a situation where the prosecuting attorney cannot be objective and act as a disinterested prosecutor. Hedesh responded that no conflict of interest exists as he has no pecuniary interest in the outcome. He noted that it was the Woodbridge prosecutor who requested that he act as prosecutor in this case.
Citing State v. Harris, 262 N.J. Super. 294, 620 A.2d 1083 (Law Div. 1992), defendant has urged throughout that there is a conflict of interest and that Hedesh cannot be as objective as a disinterested prosecutor. Defendant further asserted that the court did not take into account the particular facts of the case, and that private prosecution by one who is an attorney for an adverse party in a civil litigation deprives a defendant of due process and his right to a fair trial.
The practice of permitting private counsel to prosecute in the municipal courts has been criticized during the past forty years, but has survived. See Judson Hand Primitive Justice: Private
Prosecution in Municipal Court Under New Jersey Rule 7:4-4(b), 44 Rutgers ...