On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. P078051.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
Defendant Benjamin Giunta appeals the Law Division's denial of his motion for leave to file a municipal appeal out-of-time. Because we conclude that Giunta's appeal was not untimely, we reverse and remand for consideration of his appeal on the merits.
Giunta was issued a summons in Pequannock for making an illegal U-turn, contrary to N.J.S.A. 39:4-125. After several adjourned trial dates, the case was dismissed on the application of the municipal prosecutor on April 13, 2009. However, on the same date, the municipal court judge fined Giunta for contempt with respect to his failure to appear on prior occasions. Giunta disputed the factual basis for the contempt citation, but did not have his personal calendar with him. In response, the judge stated:
If you would like, it's $200.00 contempt, you can pay at the window. I will hold that money here and I'll dismiss the complaint.
You can send me a letter of all the dates you say you were here, . . . we have not only my notes, we have all of the calendars.
We'll pull out our notes and if you're correct, you'll get the money back. If you're not correct, it will stay here.
Giunta sent the letter to the judge, and it was received on April 24, 2009. The judge reviewed Giunta's submission and rejected his arguments in a letter dated May 14, 2009. Giunta filed his notice of municipal appeal on May 20, 2009. He received a letter, dated June 1, 2009, from the Law Division, informing him that the appeal would not be considered because it was untimely under Rule 3:23-2.
On June 15, 2009, Giunta filed a motion for leave to appeal out-of-time. The motion was denied by letter dated June 16, 2009, followed by an order dated July 21, 2009. This appeal followed.
Rule 3:23-2 requires that appeals from municipal courts in criminal proceedings be filed within twenty days of the date of the judgment. In this case, the municipal judge, in essence, granted Giunta's verbal motion for reconsideration and agreed not to process the contempt citation until he had received and reviewed Giunta's letter with respect to the dates on which he appeared in court. Giunta filed his appeal six days after receiving the judge's letter rejecting his contentions. He clearly acted quickly to perfect his right to appeal once the judge acted on his promise to review the facts underlying the contempt citation.
Consequently, we have determined that, as an equitable matter, Giunta's time to appeal did not begin to run until he received the municipal judge's letter of May 14, 2009. See R. 2:4-3(c) (tolling time to appeal); State v. Martin, 335 N.J. Super. 447, 451-52 (App. Div. 2000) (allowing late filing of municipal appeal when defendant was not advised of rights concerning appeal); State v. Gonzalez, 186 N.J. Super. 609, 615 (Law Div. 1982) (same). For that reason, we reverse the order on ...