June 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GUY MARSHALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Somerset County, Municipal Appeal No. 43-08-A-T11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 26, 2010
Before Judges Stern and J. N. Harris.
This is an appeal from an order of April 17, 2009, dismissing defendant's municipal appeal. He was fined $106 and assessed $33 in court costs and assessed two points against his driving record as a result of the conviction for speeding, but at a lesser speed than alleged. Defendant asserts due process violations which resulted in the conviction at the reduced speed, as opposed to dismissal or acquittal, because the State did not prove the allegations in the complaint and the complaint was amended by some court official and not the charging officer. In addition to the issue concerning the speed at which he was found to be driving, defendant asserts that the date of offense alleged in the complaint was not proven and requires dismissal, as the offense date of "10/27" is alleged and had to be proven, as opposed to "9/27," the date on which the offense was proven to occur and when the complaint was signed. Defendant protests the amendment of the offense date.
Our case law permits the amendment even of dates alleged in an indictment if the amendment is "not prejudicial." See State v. Bott, 53 N.J. 391, 403 (1969). Moreover, there can be no dispute that, even though motor vehicle charges are not "offenses" within the meaning of the Code of Criminal Justice, lesser included non-indictable motor vehicle charges can be considered by the judge even on the trial of an indictable. State v. Muniz, 118 N.J. 319, 324-34 (1990). Hence, defendant can be found guilty of speeding at a lesser speed than alleged in the complaint.
In any event, the municipal appeal was dismissed for failure to file the transcript of the municipal court proceedings in the Law Division, and that is all that is properly before us. We really do not know what happened in the municipal court, or why, in the absence of the transcript; nor could the Law Division. Defendant asserts he was indigent, however. If so, he was entitled to the transcript of the municipal proceedings at county expense. See R. 3:23-8(a).*fn1 See also R. 2:5-3(d).
The Law Division found defendant not to be indigent, and he does not expressly challenge that finding on this appeal, or at least provide a basis for such challenge, so there is nothing we can do in terms of reversing the Law Division and requiring it to produce the transcript at public expense and to proceed with the municipal appeal.
There were no proceedings in the Law Division so there is no transcript to be produced thereof. See R. 2:7-4. The fact that we found defendant indigent for purposes of filing this appeal does not make the Law Division wrong or require a finding that he was indigent at the time of the municipal appeal. In the absence of a transcript of the Law Division proceedings, the municipal appeal was properly dismissed.
We affirm the dismissal of the municipal appeal for failure to produce the required transcript which defendant was given a reasonable opportunity to produce.