May 7, 2009
STATE OF NEW JERSEY, PLAINTIFF,
MELISSA A. CZARTORSKY, M. SCOTT FITZ-PATRICK AND PATRICK J. GRIMES, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 03-2008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2009
Before Judges Parrillo, Lihotz and Messano.
Appellant Christopher R. Shafer appeals from an order entered on March 20, 2008, dismissing his appeal from a municipal court determination. Appellant, as a complaining witness, initiated municipal court complaints against Melissa A. Czartorsky, Esq., M. Scott Fitz-Patrick, and Patrick J. Grimes, Esq., alleging the defendants collectively obtained a copy of complainant's protected DMV records with image repository (pictures) under false pretenses (a "non-intended use") meant for "confidential investigation only" of someone else without the complainant's consent or knowledge for the purpose of disseminating the documents to the public and to at least seven individuals with the knowledge that this act can and has caused the complainant harm and has placed the complainant at risk for identity theft or fraud in violation of N.J.S.A. 2C:21-17.3 a 4th degree violation on at least seven counts.
The municipal court concluded it had no jurisdiction or there was no probable cause to sustain the charges and dismissed the complaints. Following the Law Division's de novo review, the Law Division judge concluded appellant lacked standing to present the actions.
On appeal, appellant recites these arguments in his merits brief:
Appellant has Standing to Appeal the Decision of his Citizen's Criminal Complaints.
A. No Finding of Facts and Conclusion of Law by the Municipal Court Judge is Clear Abuse of Discretion.
B. The Superior Court Law Division Also Abuses Its Discretion By Failing to Provide a Hearing, a Finding of Facts and Conclusion of Law as Set Forth in the Preto Case.
There [E]xists Probable Cause in the Criminal Violation of the Federal and State Privacy Acts and/or Title 2C of the Criminal Code by the Defendants' acts against the Appellant-Victim.
A. The Municipal Court Arbitrarily Failed To Apply The Totality of Circumstances Test In Its Determination of Probable Cause Against All Three Defendants As It Relates To The Criminal Statutes Within the Federal and State Privacy Acts And Title 2C Criminal Code.
B. The Superior Court - Law Division Arbitrarily Failed To Review If the Lower Court Applied The Totality of Circumstance Test In The Determination of Probable Cause Against All Three Defendants.
C. Defendants, Czartorysk[y] and Fitz[-]Patrick, Obtained Appellant's DMV Records Under False Pretenses, and Defendant, Grimes, Conspired with the Other Defendants.
1. Defendants, Czartorysk[y] and Fitz[-]Patrick Hold Themselves Out As Law Enforcement."
2. Defendants Admit to the Dissemination of the Appellant's DMV Records with Digital Images, In Violation of the Federal and State privacy Acts and Warning Letter.
3. Pursuant to Court Rules, Neither Criminal, Civil, Family, and Ethics' Complaints Require Exhibits Or Evidence To be Attached To The Complaint.
4. Prosecutors, Law Enforcement Agents, Police Officers, and the Like, Do Not Give Out Copies of the State's Files For Any Other Purpose, Other than the Administration of Justice.
We have considered each of these issues in light of the record and applicable legal principles. We affirm.
To understand the impetus for appellant's municipal court complaints against these three individuals, we must provide extensive factual background regarding a different matter. In May 2004, appellant's then wife, Dorca I. Delgado-Shafer, Esq., commenced providing legal services to Elizabeth and John Rios. The Rioses retained Delgado-Shafer to defend them in a civil action (dog bite case) and guide them in real estate transactions. The Rioses refinanced their residence, withdrawing equity with the intention of using the funds to purchase another home. At Delgado-Shafer's suggestion, the Rioses deposited $41,843.66 into Delgado-Shafer's trust account "so the plaintiff's attorney in the dog bite case would not discover the Rioses newly acquired money."
On September 12, 2005, Delgado-Shafer allegedly misappropriated the Rioses' funds that were deposited in her trust account. Documents show appellant delivered a check bearing his signature drawn on Delgado-Shafer's trust account to Commerce Bank. The check was made payable to "cash." Appellant endorsed the back of the check and provided his New Jersey driver's license number, presumably as identification, which was written on the back of the check. Appellant received a certified bank check from Commerce in the amount of $35,611.36, payable to "America's Servicing Company." Delgado-Shafer transmitted that check to America's Servicing Company to satisfy the accumulated arrearages on her brother's defaulted mortgage. Thereafter, Delgado-Shafer transferred an additional $6,000 from her trust account to her business account, leaving a trust account balance of $243.15.
When Mrs. Rios requested her funds to complete the closing on her new residence, Delgado-Shafer provided a bank check in the amount of $29,000, and a business check in the amount of $2,000, which was dishonored for insufficient funds. DelgadoShafer's attempt to provide a substitute check of $1,500 was also dishonored.*fn1
Mrs. Rios filed an ethics grievance against Delgado-Shafer, alleging a number of ethical lapses including, misappropriation and fraud. The Office of Attorney Ethics (OAE) instituted a formal disciplinary complaint against Delgado-Shafer resulting from the alleged misappropriation of funds. The Disciplinary Review Board found Delgado-Shafer violated multiple rules of professional conduct and suspended her from the practice of law for a period of two years. Suspension Order - Dorca I. Delgado-Shafer, New Jersey Law Journal, December 4, 2008.
As part of the OAE's investigation, prior to filing a complaint, investigator Fitz-Patrick requested and obtained from the Motor Vehicle Commission (MVC) copies of appellant's driving records, including his digital driver's license photograph. The transmittal correspondence from the MVC noted the information and image provided qualified as "protected information" under N.J.S.A. 39:3-10.
Czartorsky, as Deputy Ethics Counsel for the OAE, forwarded a copy of the OAE's complaint to the Rioses. Appellant's MVC records and photograph were attached to the OAE's complaint.
The Rioses forwarded the complaint to their attorney Grimes who, on behalf on his clients, filed a civil action against Delgado-Shafer and appellant.
Appellant initiated the filing of criminal complaints against Czartorsky, Fitz-Patrick, and Grimes, charging the three with the indictable fourth-degree crime of "Trafficking Personal Identifying Information Pertaining to Another Person," N.J.S.A. 2C:21-17.3. No indictment issued and the matter was returned to the municipal court. Following a hearing, the municipal court judge dismissed the complaints against Czartorsky and Fitz-Patrick, concluding the municipal court lacked jurisdiction to review claims against the OAE. Additionally, the municipal court dismissed the complaint against Grimes, finding no probable cause existed to support the charge.
Appellant filed a request to appeal those orders to the Law Division, pursuant to Rule 7:13-1. On May 7, 2008, Judge McNeill determined "appellant [wa]s attempting to appeal the decision of the municipal court as a third party" which was impermissible under Rule 3:23-9. He concluded appellant "lack[ed] standing to appeal since he is neither a defendant nor the Prosecutor, and cannot file an appeal on this matter before this Court." The court affirmed the municipal court's dismissal of appellant's complaints against Czartorsky, Fitz-Patrick, and Grimes. This appeal followed.
We have considered all the arguments raised by appellant and conclude none of them are of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only these brief comments.
A private person may not prosecute allegations of a crime, as it is "the responsibility of the public prosecutor to investigate and prosecute serious crimes, and it has been the role of the victim or concerned citizen to report knowledge of criminal activities to the proper law enforcement authorities." In re Loigman, 183 N.J. 133, 139 (2005). When a citizen signs a complaint alleging an indictable offense, it is the prosecutor who reviews the complaint, Rule 3:2-1, and determines "whether the charges merit presentation to the grand jury or, alternatively, outright dismissal or downgrade to the municipal court." Id. at 144. "Prosecutors routinely screen and investigate criminal complaints to determine whether there is probable cause to support return of an indictment. Prosecutors are ethically bound not to seek an indictment in the absence of probable cause." Id. at 146.
There is no circumstance wherein appellant could stand in the shoes of the prosecutor to pursue an alleged criminal action. R. 3:23-9. Appellant also lacks standing to appeal Judge McNeill's order to this court. "The State, and only the State, can appeal a dismissal . . . and a citizen, including the complainant, who has not been designated 'private prosecutor,' does not have standing." State v. Vitiello, 377 N.J. Super. 452, 455-56 (App. Div. 2005).
We conclude the legal determination made by Judge McNeill was correct. A private citizen has no standing to appeal a finding that the State lacked probable cause to pursue criminal prosecutions. R. 3:23.