Before Judges King, *fn1 Kestin and Cuff.
The opinion of the court was delivered by: Kestin, J.A.D
 Argued: March 25, 1998
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County.
Defendant, Andrew Lazarchick, appeals from convictions for disorderly persons assault, N.J.S.A. 2C:12-1a, and petty disorderly persons harassment, N.J.S.A. 2C:33-4a, after a trial de novo on the record in the Law Division, R. 3:23-8; and from the Law Division's declination to review an order entered pursuant to N.J.S.A. 2C:51-2a requiring forfeiture of defendant's employment as a police officer. Defendant had previously been found guilty of the charges in the Elizabeth Municipal Court, where the forfeiture order was entered as a consequence of the convictions. We affirm.
The charges against defendant were contained in a cross-complaint. Defendant had issued two traffic summonses to Isidro (Isadore) Cruz, II, the 17-year old son of the complainant, Isidro Cruz. The cases were consolidated for trial in the Municipal Court with a private attorney acting as prosecutor on the Cruz complaint against defendant, and defendant's attorney acting as prosecutor of the traffic offense charges. Young Cruz was acquitted of the motor vehicle charges against him.
On July 2, 1995, defendant, a police officer with the Elizabeth Police Department, was in a patrol car driven by his partner, Officer Martin Starr. The patrol car veered into a telephone pole to avoid colliding with a red car which had stopped in an intersection. The red car was driven by Isadore Cruz, II. Defendant claimed that Cruz had run a stop sign. Cruz claimed that he had not, but had merely stopped because he heard the police siren and froze when he was unable to see where the sound was coming from. Cruz stated that the flashing lights on the patrol car were off, and remained off until after the accident. Defendant claimed that the lights were on.
Defendant's testimony opened the consolidated trial on the cross-complaints. Defendant testified that Cruz did not get out of the car on his own initiative after the accident. Cruz was asked for his license, registration and insurance card; and, because he did not immediately produce them, defendant asked him to step out of the car. When he did not, defendant opened the car door on the driver's side, grasped Cruz by the left wrist, and "escorted" him out of the car and over to the patrol car, where he asked Cruz to put his hands on the trunk. Defendant stated that at one point while he was patting Cruz down, Cruz turned towards him; defendant grabbed him by the wrist and neck and forced him back onto the trunk of the car. Then, defendant seated Cruz in the rear of the patrol car because he seemed "nervous"; and defendant radioed for backup. He denied touching Cruz's wallet, claiming that Cruz gave him the appropriate documents. Within moments, backup arrived in the form of two police officers, Meola and Hurler. They took over all dealings with Cruz while defendant stayed with his partner, who had been injured in the accident. Defendant handed Officer Meola two summonses he had written charging Cruz with failure to yield to an emergency vehicle and going through a stop sign.
Cruz's version of events varied greatly from that of defendant. The young man claimed that after the police car struck the pole, he got out of his car to run over and see how its occupants were. He testified that defendant charged at him, grabbed him by the throat, and punched him in the nose. Then, defendant grabbed him by the nape of the neck and began to push him towards the police car, punching him in the back as they proceeded. When they got to the car, defendant allegedly pushed Cruz onto the trunk of the car, continuing to punch him. Cruz testified that defendant threw six or seven punches altogether. Cruz also testified that defendant was uttering angry profanities throughout, including the questions:
"What are you, an f'ing idiot? What are you stupid? What were you looking for, hookers?" Cruz stated that when he attempted to explain that he was on his way home from his girlfriend's house, defendant responded by remarking, "What is your girlfriend, an f'ing hooker?" Defendant patted Cruz down while Cruz was still trying to explain, then grabbed him by the back of his shirt and "firmly," but not roughly, led Cruz to the rear of the car, and had Cruz sit in the back seat. Defendant then searched Cruz's wallet, laying out its contents on the trunk of the car. Cruz was bleeding from the nose at this point. Cruz claimed that when Officers Meola and Hurler arrived, he tried to tell them how defendant had treated him, but neither would listen to him on the subject. They asked Cruz if he wanted to go to the hospital, but he declined and went home.
Officer Starr's testimony followed defendant's. Starr was disoriented during the critical events because of the impact of the accident, to the point of having been dazed or even having lost consciousness. He did not witness what transpired between Cruz and defendant. The testimony of Officers Meola and Hurler followed Starr's. They stated that Cruz appeared upset at the scene, but they denied seeing any blood, or that Cruz had a bloody nose or any other injury they perceived at the time. They acknowledged asking Cruz if he wanted to go to the hospital.
Cruz also testified that when he arrived home, he told his mother, Barbara Cruz, what had happened and showed her his bruises. Then he cleaned up, wiped the blood from his nose, changed out of his bloody T-shirt and went to bed. The following morning, his nose was still bleeding and Cruz went to the emergency room at Union Memorial Hospital.
The testimony of Barbara Cruz, Isadore's mother, corroborated that of her son, and her credibility was particularly noted by Municipal Court Judge Russell. Mrs. Cruz testified that Isadore had arrived home "hysterical" and told her "I just got beat up by a cop." She observed that his nose was bleeding and his T-shirt was bloody. Over defense objections, Mrs. Cruz related to the court what her son told her had transpired between him and defendant. She explained that she did not awaken her husband because she did not know what he might do, fearing he might get himself in trouble by reacting impulsively. Mrs. Cruz also testified about the blood on her son's pillow the next morning, and identified the bruises she had seen on her son from a photograph that was taken the morning after the incident. A hospital report from Union Memorial Hospital indicated that Cruz's nostrils showed "evidence of recent nosebleed," and Cruz's head had "contusions or abrasions."
Judge Russell found defendant guilty as charged, and acquitted Isadore Cruz of the motor vehicle violations. The Judge was clear about the basis for his decision:
This comes down to a question of credibility of witnesses. Do I believe Lazarchick? Do I believe Mr. Cruz? However, . . . [t]here is actually concrete evidence. There's direct testimony from [Cruz's] mother, as I said, whom I believe. . . . No way that woman was telling me anything that wasn't true. I have photographs showing injuries that directly contradict what Lazarchick is telling.
This is a police officer carrying a weapon. He's carrying a gun. He's out of control. If he does this, what else could he do? This kind of a case frightens me. Five years on the police force. I get Officer Meola and Hurler coming in here, and they don't remember anything. They give me a cock and bull story about . . . calling the . . . . ambulance because somebody seems nervous. I don't believe that. [Y]ou ask a person whether they want to go to the hospital because of the fact that they're injured.
In effect, Mr. Cruz, I can understand why he was nervous. I would have been nervous, too, if I had a police officer just smack me up against the head. I'd be upset, too, if I were 17 years old and experiencing this six months after I was driving.
Some eight weeks later, on December 12, 1996, Judge Russell, pursuant to N.J.S.A. 2C:51-2a, entered an order of forfeiture regarding defendant's employment as an Elizabeth police officer. Defendant's counsel had requested a waiver of the statutory forfeiture provision, but Acting Prosecutor Neafsey wrote to the court that the "good cause" that was the statutorily mandated prerequisite for waiver, N.J.S.A. 2C:51-2e, was not present; and he therefore declined to exercise his statutory prerogative to request it. At sentencing, on December 13, 1996, the defense moved for reconsideration of the forfeiture order, which was denied, as was defendant's application for a stay of the order. All fines, assessments, community service and probation were stayed pending appeal, however. On that same day, defendant filed a notice of appeal. An emergent application for a stay of the forfeiture order was denied by the Law Division.
The appeal was tried de novo on the record before Judge Triarsi on December 24, 1996. Defendant was found guilty of both charges. The Law Division assessed no fines as the Municipal Court had; concurrent one-year terms of probation and fifteen hours of community service were ordered, along with the costs ($30) and statutory assessments ($50 VCCB and $75 SSCP) previously imposed by the Municipal Court as to each count. On January 22, 1997, pursuant to a consent order, the sentence was modified by Judge Triarsi; defendant was discharged from probation and relieved of the community service obligation.
On appeal, defendant raises the following issues:
POINT I VARIOUS PROCEDURAL DEFECTS IN THE TRIAL BELOW VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS AND OPERATED, SEPARATELY AND TOGETHER, TO DENY DEFENDANT A FAIR TRIAL, WARRANTING A REVERSAL OF HIS CONVICTIONS (NOT RAISED BELOW).
POINT II DEFENDANT'S CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE, AND THEY RESULTED, IN PART, FROM A MISAPPLICATION OF THE LAW AND THE ERRONEOUS ADMISSION OF HEARSAY EVIDENCE.
POINT III BOTH COURTS BELOW ERRED IN CONCLUDING THAT DEFENDANT IS NOT ENTITLED TO A HEARING ON THE ACTING UNION COUNTY PROSECUTOR'S REFUSAL TO APPLY FOR A WAIVER OF THE
FORFEITURE OF DEFENDANT'S EMPLOYMENT PURSUANT TO N.J.S. 2C:51-2e, AND IN ORDERING THAT DEFENDANT'S EMPLOYMENT BE FORFEITED.
Three procedural defects are urged: that Judge Russell did not recuse himself sua sponte; that the Municipal Court did not adhere to the requirements of State v. Storm, 141 N.J. 245 (1995), mandating a certain procedure in cases where private prosecutors are employed; and that the consolidation of the complaint against defendant with the case against Isadore Cruz, resulted in a strategic disadvantage which denied defendant a fair trial.
Recusal Vel Non of the Municipal Court Judge
Defendant argues there is an appearance of impropriety when municipal court Judges preside over cases involving the misconduct of local police officers, and that it is therefore common practice among "many of the municipal courts" in New Jersey to transfer any such case to a Judge of another locality. He acknowledges that the basis for any supposed impropriety is the idea that municipal court Judges may be seen to be biased in favor of police officers from their own municipality, with whom they have likely had dealings in the past and will probably be obliged to have relations on future occasions. Defendant maintains that there is also a danger that a municipal court judge in "bending over backwards" to be fair, will act to the disadvantage of the police officer; and that this, in fact, happened in the present case.
The State characterizes the latter allegation as "mere speculation." Defendant points to nothing in the record indicating bias on Judge Russell's part. To the contrary, at one point, Judge Russell remarked:
I didn't make this decision with any pleasure. I will inform everyone sitting in this courtroom that I took an oath to apply the law as I saw fit fair[ly] and impartially. I did it in this case. And the day that I can't do that, the day that I bow to some sort of pressure because I get 100 police officers sitting here looking at me, I'll take this robe off and throw it in the garbage can.
On the basis of the record before us, it is not necessary to evaluate the wisdom of a transfer policy in cases involving alleged misconduct of local police officers. There is no statute or rule currently in place which requires such a transfer, *fn2 and there has been no showing of any unfairness to defendant or any appearance of impropriety by reason of Judge Russell's failure to order an unrequested transfer of this case to another municipality. Judge Russell's comments cited by defendant as indicative of the Judge's lack of impartiality occurred after defendant was found guilty as charged. They concern defendant's unfitness to serve as a police officer because he had demonstrated an extraordinary lack of self control, and then lied about it. There is no indication in the record of any bias against defendant on the part of Judge Russell in adjudicating the charges.
The Mandate of State v. Storm
R. 7:4-4(b) permits prosecution of criminal complaints by private attorneys "if the Attorney General, county or municipal court prosecutor or municipal attorney does not appear[.]" New Jersey is one of several states, including Alabama, Kansas, Minnesota, Oregon, Tennessee, and West Virginia, specifically authorizing private prosecution of criminal complaints. See John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511, 529 n.74 (1994). Other states permit private prosecution only when under the control of public prosecutors, id. at 521, or simply permit it without specific statutory authorization, id. at 529; and some jurisdictions eschew the practice altogether, id. at 521.
Private prosecution as an institution is rooted in the English common law practice which generally relied on the victim, or the victim's relatives and friends, to prosecute criminals. Id. at 515. It "has been sharply criticized on the ground that it is inherently and fundamentally unfair." 63C Am. Jur. 2d Prosecuting Attorneys § 12, at 124 (1997). Public prosecutors, though "`permitted to be zealous in their enforcement of the law,'" Young v. United States ex. rel. Vuitton et Fils S.A., 481 U.S. 787, 807, 107 S. Ct. 2124, 2137, 95 L. Ed. 2d 740 (1987) (citation omitted), are required to be disinterested. Ibid. That is, "they are required to seek the truth and not merely to obtain convictions." Joseph E. Kennedy, Private Financing of Criminal Prosecutions and the Differing Protections of Liberty and Equality in the Criminal Justice System, 24 Hastings Const. L.Q. 665, 672 (1997). The United States Supreme Court has recognized the essential difference between public prosecutors, who ostensibly aim at impartiality, and private prosecutors, who are committed to a client:
It is true that prosecutors may on occasion be overzealous and become overly committed to obtaining a conviction. That problem, however, is personal, not structural. . . . "[It] does not have its roots in a conflict of interest. When it manifests itself the courts deal with it on a case-by-case basis as an aberration. This is quite different from approving a practice which would permit the appointment of [private] prosecutors whose undivided loyalty is pledged to a party interested only in conviction."
[Young, supra, 481 U.S. at 807 n.18, 107 S. Ct. at 2138, 95 L. Ed. 2d at 759 (quoting Polo Fashions, Inc. v. Stock Buyers Int'l, Inc., 760 F.2d 698, 705 (6th Cir. 1985), certif. denied, 482 U.S. 905, 107 S. Ct. 2480, 96 L. Ed.2d 373 (1987)).]
The New Jersey Supreme Court, in State v. Storm, supra, was fully cognizant of the conflict of interests inherent in private prosecution:
A private prosecutor's dual responsibilities to the complaining witness and to the State breed numerous problems. Representation of the complainant in a related civil action could invest the prosecutor with a monetary interest in the outcome of the matter. That risk is particularly high if the prosecutor has agreed to receive a contingent fee in the civil action. Even in the absence of actual conflict, the appointment as prosecutor of an attorney for an interested party creates the appearance of impropriety.
Conflicting interests . . . can undermine a prosecutor's impartiality. . . . [T]he prosecutor[has an] ethical obligation "to see that the defendant is accorded procedural Justice and that guilt is decided upon the basis of sufficient evidence." In addition, private prosecutions pose the risk that the complainant will use the municipal court proceeding to harass the defendant or to obtain an advantage in a related civil action.
[Storm, supra, 141 N.J. at 253 (citations omitted).]
On the other hand, private prosecution plays an important role in the municipal court system, where, because of the large volume of cases disposed of, public prosecutors limit their involvement for the most part to complaints signed by police officers. Id. at 251. Permitting private citizens to appear either pro se or through private attorneys in the municipal courts "facilitates access" to those courts. Ibid. Without private prosecution, "some wrongs would not be set right." This is "the best argument" for permitting the practice. Id. at 252.
The Storm Court instructed the Committee on Municipal Courts to devise guidelines for the use of private prosecutors. Id. at 255. These guidelines are still being developed. However, the Court outlined an interim procedure that was to be followed by attorneys acting as private prosecutors. They are to notify the municipal prosecutor and the court. If the municipal prosecutor insists on proceeding with the prosecution, the prosecutor's decision should be final. In all other cases, the private attorney should disclose in a written certification all facts that foreseeably may affect ...