August 27, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, BY LARRY S. LOIGMAN, ESQ., PLAINTIFF-APPELLANT,*FN1
SUPLEE, CLOONEY & CO., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 09-042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 3, 2010
Before Judges Sapp-Peterson and Espinosa.
Plaintiff, Larry S. Logiman, appeals from the dismissal of the criminal complaint he filed against defendant, Suplee, Clooney & Company, on the basis that plaintiff lacked standing to file the appeal. We affirm.
The Township Council of Ocean Township retained defendant to perform auditing services. On June 11, 2009, Loigman signed a citizen's complaint against defendant alleging official misconduct, N.J.S.A. 2C:30-2(a). Plaintiff alleged that defendant "intentionally fail[ed] [to] report deficiencies for 2006 and 2007 calendar years in the annual audit reports so that [defendant] would continue to benefit from [Township] contracts valued at more than $200.00[.]" Although the complaint contained the statement, "PROBABLE CAUSE DETERMINED BY STATEMENT FROM COMPLAINANT[,]" no process was issued. The complaint was transferred to the Freehold Borough Municipal Court where it was dismissed by the municipal court judge, who found no probable cause existed to issue an arrest warrant or summons. See Rule 7:2-2(a)(1) (requiring the dismissal of a citizen complaint where a judge finds no probable cause).
Loigman appealed the dismissal to the Law Division and captioned his papers "State of New Jersey by Larry Loigman, Esq. versus Suplee, Clooney and Company." Judge Ira E. Kreizman dismissed the appeal, finding:
Mr. Loigman is not a defendant nor an aggrieved person as defined by Rule 3:23-1, and Rule 3:23-2. I find that he does not have standing to appeal.
I find further that he is not a prosecuting attorney as set forth in [Rule] 3:23-9(a) to (c), and I will further find that he has no standing to appeal. The fact that he's aggrieved by the determination of the [c]court doesn't give him standing and I'm going to sign an order dismissing his application with prejudice.
The present appeal followed.
On appeal, Loigman essentially contends that the complaint was dismissed by the court without the prosecutor first conducting an independent investigation to determine if probable cause existed for the issuance of process. We reject this argument and affirm substantially for the reasons expressed by Judge Kreizman in his July 14, 2009 oral opinion. We add the following brief comments.
We have previously held that "[t]he 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) (citing State v. Carlson, 344 N.J. Super. 521, 525-26 (App. Div. 2001), certif. denied, 171 N.J. 336 (2002)). Loigman was never designated as a "private prosecutor" to prosecute this matter and may not, without such designation, attempt to do so. See In re Grand Jury Appearance Request by Loigman, 183 N.J. 133, 139 (2005) (noting that "[i]n the modern era, it has been 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").
Loigman's contention that he is entitled to a remedy is correct. That remedy, however, does not equate to the right to prosecute an appeal without first having been designated as a "private prosecutor." R. 3:23-9(d). As the Court noted in Loigman, his remedy is to report his knowledge of criminal activities to the appropriate law enforcement authority. Ibid. To the extent Loigman believed the Monmouth County Prosecutor's Office was somehow remiss in discharging its obligations because it failed to conduct an independent investigation of his claims, as the State points out in its brief, there is no evidence in the record that he "contacted the State Attorney General's Office or the United States Attorney's Office."