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M.D. v. Verno

Superior Court of New Jersey, Appellate Division

June 20, 2013

M.D., Plaintiff-Appellant,
MICHELE C. VERNO, Defendant-Respondent.


Argued: May 30, 2013

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-2650-12.

Robert D. Herman argued the cause for appellant.

Elias T. Manos argued the cause for respondent (Nehmad Perillo & Davis, P.C., attorneys; Mr. Manos, on the brief).

Before Judges Axelrad and Sapp-Peterson.


Plaintiff appeals from the trial court's order dismissing his verified complaint and action for three writs of mandamus seeking to: (1) compel defendant Michele Verno, in her capacity as municipal court prosecutor, to dismiss the possession of narcotics paraphernalia charge because he was a participant in a sterile syringe access program; (2) prohibit Verno from dissuading pro se litigants from retaining counsel; and (3) prohibit the prosecution of those who are in possession of syringes and hypodermic needles who are participating in sterile syringe access programs. Judge Julio L. Mendez granted defendants' Rule 4:6-2(e) motion, concluding the decision to dismiss or not to dismiss a municipal court charge is solely discretionary. He additionally found there to be insufficient evidence to suggest Verno dissuaded plaintiff or other litigants from obtaining counsel. The judge further denied plaintiff's motion for summary judgment and motion to seal the complaint and use a fictitious name.[1] We affirm.


In March 2012, plaintiff was charged with disorderly persons offense N.J.S.A. 2C:36-2, use or possession with intent to use drug paraphernalia, namely, twenty hypodermic needles and sixteen cap cookers. He appeared in Mullica Township Municipal Court and advised Verno he was a participant in the Atlantic City Syringe Access Program and had a State of New Jersey Syringe Access Program card and letter from the South Jersey AIDS Alliance to prove it. According to plaintiff, Verno advised she would not dismiss the charge and the only agreement she would permit was him entering into a conditional discharge program, submitting to urine screens for two years at his expense, and paying $800 in fines. Plaintiff requested an adjournment to retain counsel, claiming Verno responded that the offer was "not going to get any better." Verno did, however, recommend the adjournment, which the court granted.

In the interim, plaintiff filed a verified complaint naming as defendants Verno and the Mullica Township Municipal Court, seeking a writ of mandamus dismissing the complaint against him because he was a participant in a syringe access program, N.J.S.A. 2C:36-6a, [2] or alternatively, a motion to dismiss the complaint pursuant to N.J.S.A. 2C:2-11 as a de minimis infraction.[3] He also filed a motion to seal the complaint and utilize a fictitious name pursuant to Rule 1:38. Plaintiff subsequently filed another motion for a second writ of mandamus to preclude Verno from dissuading pro se litigants from obtaining independent counsel in municipal court.

Defendants filed a motion to dismiss the verified complaint with prejudice for failure to state a claim, R. 4:6-2(e), and opposed M.D.'s petition for writs of mandamus and motion to seal and utilize a fictitious name. In response, plaintiff filed a cross-motion for partial summary judgment and a third writ of mandamus, this one requiring Verno to "follow" N.J.S.A. 2C:36-6a "in Mullica Township" and prohibit her from prosecuting individuals in possession of syringes and hypodermic needles who participate in lawful sterile syringe access programs.

On July 13, 2012, following oral argument, [4] Judge Mendez issued a written decision and order, granting defendants' motion and dismissing plaintiff's complaint in its entirety with prejudice and requests for mandamus relief. He also denied plaintiff's motion to seal the complaint and utilize a fictitious name. The judge recited the procedural history, relevant case law and statutes, and the standard of review for a dismissal of a complaint pursuant to Rule 4:6-2(e). He concluded that viewing both counts of plaintiff's verified complaint with liberality and assuming the truthfulness of all its allegations, see Printing Mart-Morristown v. Sharp Elecs., 116 N.J. 739, 746 (1989), the complaint failed to state a claim for relief.

Addressing the first count seeking to compel Verno's dismissal of plaintiff's pending criminal charges based on his participation in the sterile syringe access program, the judge explained:

A writ of mandamus is an extraordinary remedy to be reserved for extraordinary situations. This is not such an extraordinary situation that requires court intervention. The court is satisfied that the Prosecutor's determination to dismiss or not to dismiss the charges is clearly a discretionary call for Prosecutor Verno to make based on all relevant circumstances and this court is not inclined to involve itself in those discretionary determinations. As stated in Vas [v. Roberts, 418 N.J.Super. 509 (App. Div. 2011)], a writ of mandamus is appropriate to compel the exercise of discretion, but not to interfere or control the mode and manner of its exercise or to influence or direct a particular result.

Judge Mendez further noted that the proper forum for plaintiff to raise his arguments is not a writ of mandamus, but a motion in municipal court. Verno, in her capacity as municipal prosecutor, had a duty to evaluate the facts and decide whether to proceed with the charges, within her discretion, which the judge was satisfied she had done. The judge noted that plaintiff was not foreclosed from properly raising issues and defenses in municipal court, including whether the syringe program extends to Mullica Township and whether the concurrent possession of cap cookers qualifies as an exemption under N.J.S.A. 2C:36-6a.

As to the second count, Judge Mendez found there to be insufficient evidence to suggest Verno dissuaded plaintiff or other litigants in municipal court from retaining counsel. The judge explained that Verno's purported statement to plaintiff that retaining legal counsel would not get him a better deal "is the type of language sometimes used by prosecutors who wish to make a point that they are making the best offer in the case." He agreed, however, that it had the "potential of dissuading some self-represented litigants from obtaining an attorney" and thus cautioned a prosecutor about making such a statement. Nevertheless, Judge Mendez found the evidence demonstrated that plaintiff was "in no way dissuaded from obtaining counsel[, ]" noting that "the court postponed the matter to allow [plaintiff] to obtain not one, but two attorneys, and Prosecutor Verno herself signed off on the postponement." Accordingly, he concluded that Verno's statement alone was not sufficient grounds for issuing a writ of mandamus.

Noting the presumption that all court records are open to public inspection, the judge found plaintiff failed to make any arguments to support the sealing of the complaint. Moreover, in view of the dismissal of the complaint, the issue was moot. This appeal ensued.


On appeal, plaintiff argues the court erred in granting defendants' motion to dismiss his complaint and in denying his motion for summary judgment. He recognizes that mandamus is an extraordinary remedy but urges that it was warranted under these circumstances, arguing N.J.S.A. 2C:36-6a afforded him the right not to be charged with possession of the needles rather than requiring him to assert it as an affirmative defense in court. He further emphasizes the importance of sterile syringe access programs; the potential for scared, unrepresented participants in the programs who may be strong-armed by Verno and other municipal court prosecutors into entering guilty pleas to possession offenses; and seeks discovery to explore Verno's conduct regarding other similarly-situated defendants.

We are not persuaded by plaintiff's arguments and affirm substantially for the reasons articulated by Judge Mendez in his comprehensive written decision. We add the following brief comments.

We apply a plenary standard of review from a trial court's dismissal of a complaint pursuant to Rule 4:6-2(e). Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J.Super. 103, 114 (App. Div.), certif. denied, 208 N.J. 368 (2011). Moreover, the legal conclusions of the trial court are reviewed de novo, without any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We review summary judgment decisions de novo and apply the same standard utilized by the trial court, namely, whether the evidence, when viewed in light most favorable to the non-moving party, raises genuinely disputed issues of fact sufficient to warrant resolution by the trier of fact or whether the evidence is so one-sided that one party must prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Viewing plaintiff's mandamus complaint with all liberality, accepting every allegation as true, and affording him every reasonable inference of fact, see Printing Mart, supra, 116 N.J. at 746, his sole allegation in support of his claim that Verno was dissuading him from retaining counsel was that Verno refused to dismiss the charge against him; offered him a conditional discharge plea; and in response to his request for an adjournment to retain counsel, she replied, "It doesn't matter. It's [the offer] not going to get any better." Verno signed off on his request for a postponement, which was granted by the municipal court judge. Plaintiff's claim based on Verno's ten-word response to him is clearly insufficient to withstand a Rule 4:6-2(e) motion and remand for what, in essence, would be a "fishing expedition" into whether she potentially dissuaded other participants in the syringe access program from retaining counsel.

As noted by Judge Mendez, plaintiff presented an insufficient basis to invoke the extraordinary remedy of mandamus here. Rather than filing this civil lawsuit after he obtained the adjournment of the municipal court proceeding, the appropriate procedure would have been for plaintiff to have pursued the de minimis motion and, if unsuccessful, to have asserted the arguments and challenges raised in this case by appropriate motion in the municipal court. The prosecutor then would have had the opportunity to respond and if the matter was not resolved amicably, the municipal court judge would have rendered a decision. Pursuant to R. 3:23-8, any appeal would proceed de novo on the record to the Law Division, and then to this court, R. 2:2-3(a)(1).

Plaintiff is basically seeking for us to provide an advisory opinion respecting the applicability of N.J.S.A. 2C:36-6a to municipal court prosecutions statewide. We decline to do so. See State v. Rose, 206 N.J. 141, 189 (2011) ("The notion that a court of appeals willy-nilly can decide issues unnecessary to the outcome of the case results in the wholesale issuance of advisory opinions, a practice our judicial decision-making system categorically rejects."). We have elaborated:

First, for reasons of judicial economy and restraint, courts will not decide cases in which the issue is hypothetical, a judgment cannot grant effective relief, or the parties do not have concrete adversity of interest. Second, it is a premise of the Anglo-American judicial system that a contest engendered by genuinely conflicting self-interests of the parties is best suited to developing all relevant material before the court.
[Cinque v. N.J. Dep't of Corr., 261 N.J.Super. 242, 243-44 (App. Div. 1993) (internal quotation marks and citation omitted).]

Here in particular, plaintiff was charged with a single offense of use or possession with intent to use drug paraphernalia, which included cap cookers as well as hypodermic needles. Considering that during oral argument before Judge Mendez plaintiff abandoned his challenge regarding the cap cookers, it would clearly be inappropriate for us to render a legal decision on these issues at this time.


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