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State v. Storm

July 17, 1995


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 278 N.J. Super. 287 (1994).

The opinion of the Court was delivered by Pollock, J. Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi, Stein and Coleman join in Justice Pollock's opinion.

The opinion of the court was delivered by: Pollock

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).


Argued May 1, 1995 -- Decided July 17, 1995

POLLOCK, J., writing for a unanimous Court.

The issue on appeal is whether Rule 7:7-4(b) permits private counsel for a complainant to prosecute a complaint in the municipal court. Under Rule 7:7-4(b), at the request of the prosecutor, or if the prosecutor does not appear, any attorney may appear on behalf of any complaining witness and prosecute the action for and on behalf of the State or the municipality.

The Woodbridge Municipal Court permitted Robert Hedesh, Esq., private counsel for complainant, Pamela Young, to prosecute Young's complaints against Richard Storm for stalking and harassment. Woodbridge does employ a prosecutor, but he or she does not prosecute private complaints.

While the municipal court charges were pending against him, Storm filed a civil complaint against Young. The complaint alleged that Young intentionally had issued to Storm a bad check for vacation expenses. Hedesh represented Young in defending that complaint.

In the municipal court, Storm's attorney, Richard Lehrich, Esq., moved to disqualify Hedesh as a prosecutor. Lehrich argued that Hedesh's representation of Young in the civil action prevented him from acting as an impartial prosecutor. The municipal court denied the motion and permitted Hedesh to prosecute the municipal court complaint. The Law Division denied Storm's motion for leave to appeal.

The Appellate Division granted leave to appeal and reversed, finding that Hedesh had a conflict of interest that impinged on Storm's right to a fair trial. The Appellate Division directed the municipal court to order the municipal prosecutor to prosecute the complaints.

The Supreme Court granted the Middlesex County Prosecutor's motion for leave to appeal.

HELD: Whenever an attorney for a private party applies to prosecute a complaint in the municipal court, the court should determine whether to permit the attorney to proceed. Because Hedesh's obligations to Young as her private attorney creates at least the appearance that he could not act as a private prosecutor with impartiality, Hedesh should not be allowed to prosecute Storm.

1. Rule 7:4-4(b) perpetuates the practice of private prosecution, which has its origins in ancient England. Both this Court and the Legislature continue to recognize the role of private prosecutors. Because of the heavy caseload, municipal prosecutors cannot prosecute every complaint. By permitting private citizens, acting either on their own or through private counsel, to appear in municipal court Rule 7:4-4(b) facilitates access to municipal courts. Of course, the defendant has a right to a fair trial before an impartial Judge and that need for impartiality extends beyond the Judge to the prosecutor. (pp. 4-10)

2. To assist municipal courts in the exercise of their discretion, it is requested that the Committee on Municipal Courts to recommend guidelines governing the appointment of private prosecutors in municipal courts. Until then, an attorney wishing to appear as a private prosecutor should notify the municipal prosecutor and the court. If the municipal prosecutor insists on proceeding with the prosecution, that decision should be final. In all other cases, the private attorney should disclose in a written certification all facts that foreseeably may affect the fairness of the proceeding. The propriety of appointing a private prosecutor will vary from case-to-case, depending on the facts of each case. (pp. 10-13)

3. The burden on Storm's right to a fair trial and on the public interest in an impartial proceeding outweighs any benefit that would accrue from permitting Hedesh ...

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