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State v. Clark

January 19, 2000

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ROBERT F. CLARK, DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: Coleman, J.

Argued October 12, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 324 N.J. Super. 178 (1999).

The critical issue raised in this appeal is whether a municipal prosecutor can simultaneously serve as a defense attorney in a criminal matter pending in the Superior Court of the county in which he or she serves as prosecutor. The Appellate Division adopted a bright-line rule and held that such a prosecutor may not, and, as a result, reversed defendant's conviction. Although we agree with the Appellate Division panel that municipal prosecutors should not in the future represent defendants in criminal matters in the county in which they serve, we conclude that the court erred in reversing defendant's conviction. However, we amend the controlling Court Rule and direct that the amended Rule be applied prospectively.

I.

In 1994, a jury in Middlesex County convicted defendant on two counts of sexual assault and two counts of endangering the welfare of a child. Those offenses were committed in Jamesburg, New Jersey. Defendant was represented by E. Ronald Wright, Esquire, who was assigned to the case by the Public Defender. Subsequent to the entry of the judgment of conviction, defendant learned that at the time of trial his attorney was a part-time municipal prosecutor in New Brunswick, also located in Middlesex County.

The parties have stipulated that defense counsel was not engaged in any actual conflict. Nonetheless, in his direct appeal to the Appellate Division from the judgment of conviction, defendant contended that the dual positions held by his attorney in the same county deprived him of his right to effective assistance of counsel and a fair trial. In reversing the convictions, the Appellate Division held that "it is impermissible for a part-time municipal prosecutor in a municipality located in the county where defendant is tried to represent a criminal defendant." State v. Clark, 324 N.J. Super. 178, 183 (1999). We granted the State's petition for certification and stayed the judgment. 161 N.J. 336 (1999).

II.

When defendant was tried in January 1994 and sentenced on November 7, 1994, neither the existing Court Rules nor decisional law precluded defendant's trial attorney from serving as municipal prosecutor and representing a defendant in the Superior Court of the same county. The pertinent part of Rule 1:15-3(b) provided then and now, excepting changes that made it gender neutral, that "[a] municipal attorney of any municipality shall not represent any defendant in the municipal court thereof." The pertinent portion of the source Rule was practically identical to the present Rule and provided that "an attorney shall not represent any defendant in the municipal court of the municipality of which he is the municipal attorney." R. 1:26-63(c).

The only relevant case decided under either version of the rule is State v. Zold, 105 N.J. Super. 194 (Law Div. 1969), affirmed o.b., 110 N.J. Super. 33 (App. Div.), certif. denied, 57 N.J. 131 (1970). That case held that a municipal attorney, who served as a municipal prosecutor, was not precluded by the rule from representing a defendant in the Superior Court or the former County Court located in the same county in which he or she served as a municipal prosecutor. 105 N.J. Super. at 203. In this case, because Wright's representation of defendant did not violate either Rule 1:15-3(b) or Zold, and because there was no actual conflict or prejudice to defendant, no basis existed to reverse defendant's conviction. The judgment of conviction is therefore reinstated.

III.

Next, we address whether Rule 1:15-3(b) should be expanded to preclude a municipal prosecutor from simultaneously serving as a defense counsel in the Superior Court in the same county in which he or she serves as municipal prosecutor. Clearly, the Rule as presently worded does not prohibit a municipal prosecutor from serving as defense counsel in the Superior Court of any county.

The authority to adopt practice and procedure Rules rests exclusively with this Court. N.J. Const. (1947), art. VI, § 2, ¶ 3. "The Court's Rule-making authority may be exercised by the promulgation of formal Rules to be included in the published Rules of Court, R. 1:1. It may also be exercised in the form of general directives or specific orders." In re Yaccarino, 101 N.J. 342, 351 (1985). In addition, the Court's authority to engage in rule making includes the exclusive power to establish or modify Court Rules through judicial decisions. State v. Leonardis, 71 N.J. 85, 108-09 (1976); Shambry v. New Jersey Transit Bus Operations, Inc., 307 N.J. Super. 390, 395 (App. Div. 1998). Indeed, "[t]hat the Supreme Court's rule-making power and authority over the administration of all courts in the State is exclusive has never been in doubt." Cunningham v. Rummel, 223 N.J. Super. 15, 18 (App. Div. 1988).

"Rules of court for controlling practice and procedure date back to the Middle Ages. They were the settled means of effecting changes and improvements in procedure" and practice. Winberry v. Salisbury, 5 N.J. 240, 252, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950). Given the growing complexity and importance of municipal prosecutions, it is apparent to us that the benefit of our rule that permits a municipal prosecutor also to serve as defense counsel in the Superior Court of the same county is now outweighed by the high probability that the prosecutor's impartiality will be undermined.

Municipal prosecutors are under the supervision of the Attorney General and county prosecutors, N.J.S.A. 2B:12-27, the same offices that prosecute indictable and juvenile offenses in the Superior Court. N.J.S.A. 2A:158-4 and -5. Under the existing Court Rule, a municipal prosecutor may be called upon to conduct a direct examination of one or more municipal police officers any weekday or evening in municipal court, and the following day conduct cross-examination of the same officer or his or her partner in the Superior Court of the same county while representing a defendant on an indictable offense. Dual representation in the same county therefore presents a significant possibility of conflict that could impair a defendant's right to a fair trial, including effective assistance of counsel, while at the same time creating prosecutorial partiality. The dual role strikes at the integrity of the criminal justice system because it epitomizes how a prosecutor's impartiality can be ...


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