On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0064-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and J. N. Harris.
Martin O'Boyle filed a harassment complaint against defendant, Frank DiLorenzo, Sr., alleging he sped past O'Boyle in an alarming manner. O'Boyle appeals from an order of the Law Division dismissing his appeal for lack of standing and, alternatively, holding the municipal court judge did not act improperly in dismissing O'Boyle's complaint for failure to appear and in declining to reinstate it. We affirm substantially for the reasons articulated by the Law Division judge on the record on December 22, 2009, following oral argument.
O'Boyle filed separate harassment complaints against defendant and Anthony DiLorenzo on the same day but involving different incident dates. Each was assigned its own docket number. Both complaints were ultimately assigned a trial date of December 10, 2008, in the Buena Vista Township Municipal Court. On October 22, 2008, Anthony DiLorenzo's motion to dismiss the complaint as de minimis, N.J.S.A. 2C:2-11, was granted by the Assignment Judge. Oral argument on O'Boyle's motion for reconsideration was scheduled for December 9, but, about three weeks before that date, it was postponed to December l7.
On December l0, O'Boyle failed to appear for trial in defendant's matter and, upon the State's motion, his complaint against defendant was dismissed by the municipal court judge. O'Boyle filed for reconsideration, claiming he believed defendant's matter had been stayed pending the outcome of the reconsideration motion involving Anthony DiLorenzo.*fn1 The State did not join in the motion, and, to the contrary, the municipal prosecutor challenged the complaining witness' standing and represented that had the case been restored, he would have moved to dismiss it. O'Boyle's motion was denied following oral argument on August l2, 2009.
O'Boyle appealed to the Law Division and the State moved to dismiss the appeal for lack of standing, relying primarily on our opinion in State v. Vitiello, 377 N.J. Super. 452, 455-57 (App. Div. 2005). By order of January 12, 2010, Judge Neustadter dismissed the private complaint for lack of standing and alternatively held the municipal court judge did not abuse his discretion. As to the latter ruling, the judge found that O'Boyle should have made a timely phone call to confirm the case had been postponed and noted that fifteen defense witnesses had been present on the trial date. This appeal ensued.
O'Boyle concedes that he does not have standing to bring an appeal in a case in which the municipal court complaint is dismissed after a determination on the merits. See Id. at 455-56 (holding that only the State has standing to appeal the dismissal of a complaint as de minimis under N.J.S.A. 2C:2-11, and not the citizen complainant). He argues, however, the rationale does not apply to a procedural dismissal. He further submits his failure to appear at the municipal court trial was a reasonable mistake and the Law Division judge's failure to reinstate the complaint and allow him his day in court resulted in "a manifest injustice" under Rule 7:8-5. Based on our review of the record, arguments of counsel, and the applicable law, we find O'Boyle's position to be without merit.
O'Boyle's distinguishing of Vitiello is an attempt to elevate form over substance. The same legal principles and rationale apply in both cases, i.e., that a private person may not prosecute allegations of a crime and bypass the prosecutor, as it is "the responsibility of the public prosecutor to investigate and prosecute serious crimes, and . . . the role of the victim or concerned citizen to report knowledge of criminal activities to the proper law enforcement authorities." Vitiello, supra, 377 N.J. Super. at 457 (quoting In re Loigman, 183 N.J. 133, 139 (2005)). Here, the municipal prosecutor requested the dismissal of O'Boyle's complaint and opposed reinstating it. The State did not appeal the dismissal or order denying reinstatement. Furthermore, the county prosecutor challenged the private complainant's standing to appeal and represented that had the complaint been reinstated, he would have moved to dismiss it. Accordingly, O'Boyle "can have no greater right" to proceed on his grievance against defendant when the State's representatives have determined the matter does not warrant prosecution. See Vitiello, supra, 377 N.J. Super. at 457.
We are also satisfied the municipal court judge did not abuse his discretion. There is a sufficient basis in the record to support a finding of good cause for dismissing O'Boyle's complaint for lack of prosecution and denying the private complainant's motion for reinstatement. Moreover, O'Boyle has failed to present convincing arguments that a "manifest injustice" resulted from the determination. See R. 7:8-5.