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M.D. v. Verno

Superior Court of New Jersey, Appellate Division

June 20, 2013

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

PER CURIAM

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.

I.

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 ...


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