On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, 06-103.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 17, 2007
Before Judges Collester and C.L. Miniman.
Defendant Hamlet E. Goore, Jr., appeals the imposition of a sanction pursuant to R. 1:2-4 in connection with his failure to appear for trial before the Presiding Judge of the Municipal Court on September 29, 2006, on a charged traffic violation.
Because R. 1:2-4 does not apply to the conduct for which defendant was sanctioned, we reverse.
The underlying facts giving rise to the alleged motor vehicle violation do not inform our decision and will not be recited here. Suffice it to say that defendant was charged with operating an unregistered motor vehicle on May 26, 2006, and driving while his operator's license was suspended. He paid the fine in connection with operating an unregistered motor vehicle, resolving that matter. The Assignment Judge transferred the charge of operating a motor vehicle with a suspended license from the Municipal Court Judge to the Presiding Judge of the Municipal Court. A case management conference was held on July 28, 2006, at which trial was specially scheduled in defendant's presence for September 29, 2006.
Two weeks before the scheduled trial date, defendant's attorney requested an adjournment of the trial because defendant would "be out of the country on prepaid vacation." Alternatively, counsel advised "we are prepared to waive our client's appearance on September 29 and argue our Motion to Dismiss the Complaint." The Presiding Judge denied the requested adjournment by letter dated September 20, 2006, because the date had been set at the case management conference and was the major case for September 29, 2006. He stated that his court was "booked well into December" and the case would be seven to eight months old if rescheduled in January 2007, whereas Supreme Court guidelines required trial within two months. He also stated that if he put the case off, "the tax payers [sic] will pay me on September 29, 2006, to twirl my thumbs and do nothing." He expressed that he could not understand why the defendant would schedule a prepaid vacation when he sat in court on July 28, 2006, heard the date set for trial and heard his attorney seek to have the date set as peremptory. He also rejected the request to hear the motion on September 29 and then set a trial date in the future if the case was not dismissed.
Defendant sought leave to appeal to the Law Division, which was granted and the adjournment request was summarily denied on September 28, 2006. The Law Division order specifically provided that "defendant's appearance and presence [on] that date is not excused. Trial to proceed immediately after the motion is heard in the event that the motion is denied."
Defendant failed to appear on September 29, 2006. His attorney explained that he was on a prepaid vacation in Mexico and again asked to have his appearance excused. The judge expressed his displeasure and ordered the defendant to appear before him on October 6, 2006, "to argue why he should not be sanctioned under Rule 1:2-4 for his failure to appear." He proceeded with the trial in defendant's absence. The State called one witness, Gregory Focarino, from the New Jersey Motor Vehicle Commission. He testified that defendant's license was suspended effective April 20, 2005, because of an unpaid parking ticket. He also testified that defendant paid the restoration fee on May 2, 2005, long before he was charged with driving on a suspended license. After he was charged, defendant brought the failure of the MVC to reinstate his license to its attention. The MVC conducted an investigation into its records and reinstated his license retroactive to the date he paid the restoration fee, as was its usual custom and practice in such situations.
At the conclusion of Focarino's testimony, defendant argued his motion to dismiss. The State opposed the dismissal, arguing that defendant's license was suspended at the moment he was charged on May 26, 2006, because it had not yet been restored. However, the judge granted the motion to dismiss on the ground that the Motor Vehicle Commission has exclusive power to determine restoration of licenses and that it restored defendant's license retroactively to May 2, 2005. As a consequence, the judge concluded that defendant's license was not suspended on May 26, 2006, and dismissed the charge against him. Nonetheless, he required defendant to appear on October 6, 2006, to explain his absence. That appearance was adjourned to October 13, 2006.
On October 11, 2006, defendant certified that he mistakenly believed that the trial date had been scheduled for September 19 and, before learning of his mistake, he purchased airline tickets to Puerto Vallarta, Mexico, for a one-week vacation. He did not learn of his error until September 11, 2006. He also certified that, had he anticipated that the adjournment request would be denied, he would have submitted a certification pursuant to R. 7:12-3(a) waiving his right to be present at trial.
The hearing proceeded on October 13, 2006. During oral argument defendant's attorney questioned which rule governed the proceeding. The judge stated,
It's Rule 1:2-4 hearing, a sanction hearing. It's not contempt. It's not 1:10-1. It's not 1:10-2. 1:10-2 requires transfer to another judge. 1:10-1 doesn't, but I don't see this . . . as a contempt on the ...