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State v. McGrane


March 11, 2010


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-075.

Per curiam.


Argued February 22, 2010

Before Judges Yannotti and Chambers.

Donald Del Vecchio (Del Vecchio) appeals from an order entered by the Law Division on May 18, 2009, affirming the dismissal by the municipal court of certain criminal complaints filed by Del Vecchio against defendant Ralph McGrane (McGrane). For the reasons that follow, we dismiss the appeal.

This appeal arises from the following facts. Del Vecchio is employed as a corrections officer at the Morris County Correctional Facility. McGrane is his supervisor. On October 31, 2008, Del Vecchio was on duty in the loading area of the facility. McGrane approached him and a discussion ensued. Del Vecchio claimed that McGrane confronted him verbally and physically and used offensively coarse language. Del Vecchio filed a criminal complaint charging McGrane with aggravated assault against a corrections officer, contrary to N.J.S.A. 2C:12-1(b)(5)(h).

The municipal court conducted a hearing on November 18, 2008, to determine if there was probable cause for the complaint. Del Vecchio testified and presented a DVD recording of the incident. Thereafter, the court placed its decision on the record. The court observed that the DVD showed that McGrane and Del Vecchio had engaged in a "heated argument" and there was "some touching[.]" The court found, however, that the "touching" did not rise to the level of a criminal assault. The court accordingly concluded that the charge was not supported by probable cause and dismissed the complaint. Del Vecchio did not appeal from the order of the municipal court.

Del Vecchio thereafter filed three additional criminal complaints against McGrane, all arising from the October 31, 2008, incident. Del Vecchio charged McGrane with harassment, contrary to N.J.S.A. 2C:33-4; hindering apprehension, contrary to N.J.S.A. 2C:29-3(a); and tampering with a witness, contrary to N.J.S.A. 2C:28-5(a). On December 16, 2008, the municipal court held a probable hearing on these charges.

Del Vecchio testified. He said that he is the President of the union for the corrections officers and described the incident of October 31, 2008, during which he was allegedly harassed. Del Vecchio additionally testified that he filed a complaint with his employer regarding the incident. He said that, after he filed his complaint, McGrane called him into his office.

According to Del Vecchio, McGrane told him that if he pursued the matter, he was the only person who would be hurt. Del Vecchio said to McGrane that he believed this was a threat but McGrane replied that it was only "a saying." Del Vecchio told McGrane that he "took it as threat" and McGrane said he could "take it any way" he wanted to.

The court rendered a decision from the bench. The court found that none of the conduct described by Del Vecchio rose to the level of a criminal violation and dismissed the charges. Del Vecchio filed an appeal to the Law Division, which considered the matter on May 1, 2009.

McGrane argued that Del Vecchio did not have standing to pursue the appeal. The court disagreed, concluding that Del Vecchio had standing because he had filed his complaint as a law enforcement officer rather than as a citizen complainant. The court further found that, upon consideration of Del Vecchio's testimony, review of the DVD of the incident and the transcript of the municipal court proceeding, probable cause did not exist for the charges. The court entered an order dated May 18, 2009, affirming the municipal court's dismissal of the complaints. This appeal followed.

McGrane argues that Del Vecchio does not have standing to appeal the order of the municipal court dismissing his complaints for lack of probable cause. We agree.

In State v. Vitiello, 377 N.J. Super. 452 (App. Div. 2005), the complainant filed a harassment complaint against the defendant. Id. at 454. The Assignment Judge dismissed the complaint pursuant to N.J.S.A. 2C:2-11(b). Id. at 455. The statute allows an Assignment Judge to dismiss a prosecution when the defendant "did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction." N.J.S.A. 2C:2-11(b). The defendant appealed the Assignment Judge's order. Id. at 454.

We dismissed the appeal and stated that "[t]he State, and only the State, can appeal a dismissal, particularly where the matter is being handled by a public prosecutor, and a citizen, including the complainant, who has not been designated "private prosecutor," does not have standing." Id. at 455-56. We noted that the County Prosecutor had not objected to the dismissal of the complaint and, in the exercise of his prosecutorial discretion, did not appeal the dismissal. Id. at 456.

Here, the State has not appealed the decisions of the municipal court and the Law Division dismissing Del Vecchio's complaints. We note that, although Del Vecchio is a law enforcement officer, he pursued this matter as a private citizen as a result of conduct directed at him as an individual. Even if Del Vecchio filed his complaints as a law enforcement officer, he would not have standing to appeal the dismissal of the complaints because he is not authorized to act on behalf of the State.

We additionally note that the municipal court never designated Del Vecchio as a "private prosecutor." Indeed, it appears that he would not qualify for such a designation under Rule 7:8-7(b) (allowing the court, in certain circumstances, to designate an attorney to appear as a private prosecutor to "represent the State in cases involving cross-complaints"). Furthermore, by letter dated April 17, 2009, the Morris County Prosecutor advised the trial court that it was not taking a position on Del Vecchio's appeal from the municipal court decision.

Thus, under Vitiello, Del Vecchio did not have standing to appeal the dismissal of his complaints by the municipal court and he does not have standing to maintain this appeal from the trial court's determination. The trial court erred by concluding otherwise. In view of our determination that Del Vecchio does not have standing to pursue this appeal, we will not address the merits of his arguments.

Appeal dismissed.


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