On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 34-2003.
Before Judges Fall, Payne and C.S. Fisher.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2004
Defendant seeks reversal of his conviction of simple assault because the private attorney who prosecuted the case in municipal court failed to file a certification, required by R. 7:8-7(b), that would address the concerns expressed in State v. Storm, 141 N.J. 245 (1995), thus precluding the municipal judge from determining whether there was"good cause" for the private prosecution. We reject the State's argument that defendant's failure to show he was prejudiced may excuse this structural defect in the municipal proceedings, and reverse.
Defendant was charged in Edison Municipal Court with a simple assault, in violation of N.J.S.A. 2C:12-1(a)(1), arising from a domestic dispute. The municipal prosecutor apparently declined to prosecute the matter. As a result, a private attorney, retained by the alleged victim of the assault, represented the State at trial. Defendant was convicted, and a $750 fine and other penalties were imposed. Defendant appealed to the Law Division which, on de novo review, also convicted defendant and imposed the same penalties. Defendant thereafter appealed to this court, arguing:
I. THE CONVICTION VIOLATES [R.] 7:8-7(b) WHICH REQUIRES A CERTIFICATION FROM THE PRIVATE PROSECUTOR AND FINDING OF GOOD CAUSE ON THE RECORD BY THE MUNICIPAL COURT.
II. THE CONVICTION VIOLATES THE HOLDING OF [STATE v. STORM] WHICH STRICTLY LIMITS THE APPEARANCES OF PRIVATE PROSECUTORS IN THIS STATE.
Because the record on appeal is unenlightening, we examine the issues raised on the assumption, as conceded by the parties, that there was no compliance with R. 7:8-7(b).*fn1 The Law Division judge, also proceeding on this same assumption, concluded that the private prosecutor's failure to comply with R. 7:8-7(b) did not matter because"this defendant got a fair trial." Since we have not been provided with a transcript of any of the municipal proceedings in this matter, we cannot fairly review the Law Division judge's determination that defendant was not prejudiced and otherwise received"a fair trial." However, because we conclude that the private prosecutor's abject failure to comply with Storm and R. 7:8-7(b) mandates reversal notwithstanding the claim that defendant was not prejudiced or otherwise received a fair trial, we reverse.
Our Supreme Court has made clear its concerns about private prosecutors in the following way:
A mere list of the arguments for and against private prosecutors fails to capture the valuable, if troublesome, role of municipal courts in resolving private disputes. A municipal court is"the people's court." Municipal courts remain a place in which people, sometimes on the verge of violence, can seek relief. In effect, municipal courts provide a safety valve for society. By providing access to impartial judges, municipal courts forestall violence and encourage the peaceful resolution of disputes.
For a municipal court to provide an effective forum, both the complainant and the defendant must trust the impartiality of the proceedings. To earn that trust, the prosecutor, like the judge, must be impartial. Inevitably, private prosecutions undermine confidence in the ...