Opinion
DOCKET NO. A-1421-11T4
06-15-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ZENKO LUCYK, Defendant-Respondent. ROMAN TRACZ, Appellant.
Christopher T. Campbell argued the cause for appellant. Anthony J. Vecchio argued the cause for respondent Zenko Lucyk. Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney; Ms. do Outeiro, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 11-039.
Christopher T. Campbell argued the cause for appellant.
Anthony J. Vecchio argued the cause for respondent Zenko Lucyk.
Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney; Ms. do Outeiro, on the brief). PER CURIAM
Private citizen-complainant Roman Tracz appeals from an October 11, 2011 order of the Law Division dismissing his appeal for lack of standing to appeal dismissal of the municipal court charges he filed against defendant. We affirm substantially for the reasons set forth by Judge Francis P. DeStefano in his written opinion appended to the order. We add the following brief comments.
In November 2010, Tracz filed several municipal court complaints against defendant. On June 8, 2011, Tracz obtained an adjournment of the trial, during which the municipal court judge instructed him to speak with the municipal prosecutor regarding discovery in the case. Tracz acknowledged he had already spoken briefly with the prosecutor. On the adjourned trial date of June 29, 20ll, Tracz appeared, represented by the municipal prosecutor, and defendant appeared, represented by current counsel. Defense counsel explained that Tracz failed to provide requested discovery to himself or other defense counsel since February or to accept his discovery responses. The municipal prosecutor said she recalled defense counsel informing Tracz at the first court appearance in February that he had to provide discovery. The assistant court administrator also stated that she told Tracz weeks earlier that he had to send his discovery to defense counsel. Tracz admitted he knew defense counsel had requested discovery from him and he did not comply.
The municipal court judge dismissed one of the charges as duplicative and dismissed the remaining citizen complaints on defendant's motion based on a "flagrant disregard of the rules of discovery." By letter of August 2, 2011, the Monmouth County Prosecutor's Office declined Tracz's private counsel's request for its assent to his acting as prosecuting attorney pursuant to Rule 3:23-9(d) for the purpose of filing a municipal appeal to the Law Division, noting it had reviewed the municipal court transcripts and discussed the matter with the municipal prosecutor. The assistant prosecutor further advised it would oppose prosecution of the appeal if Tracz's counsel did not withdraw his notice of appeal.
In dismissing Tracz's appeal, Judge DeStefano properly relied on State v. Bradley, 420 N.J. Super. 138, 142 (App. Div. 2011), which is directly on point. In Bradley we reiterated that, consistent with well-established public policy articulated in the case law, "there is simply no circumstance in which a private complainant can act as a prosecuting attorney without the special approval and process provided in Rule 3:23-9(d)."
There is no merit factually or legally to Tracz's argument that the municipal court judge implicitly placed him in the position of a de facto prosecutor by permitting him to serve as a go-between for discovery, as a result of which he should be entitled to prosecute an appeal to the Law Division and to this court. As we explained in Bradley, Rule 3:24(b), pertaining to municipal courts, provides that "[t]he prosecuting attorney may appeal, as of right, a pre-trial or post-trial judgment dismissing a complaint." Rule 3:23-9 specifically designates the Attorney General, municipal attorney, or county prosecutor as the "prosecuting attorney" for all appeals from the municipal court. An attorney representing "a complaining witness or other person interested in the prosecution may be permitted to act for the prosecuting attorney" only "[w]ith the assent of the prosecuting attorney and the consent of the court." R. 3:23-9(d).
Thus, in the circumstances here where there was an absence of such assent, the prosecutor "has exclusive jurisdiction to represent the State in appeals from municipal court[.]" State v. Ward, 303 N.J. Super. 47, 54 (App. Div. 1997). See also State v. Vitiello, 377 N.J. Super. 452, 455 (App. Div. 2005) ("The State, and only the State, can appeal a dismissal[.]"). Accordingly, Judge DeStefano properly determined that Tracz lacked standing to appeal as he neither qualified as a "prosecuting attorney" nor had the authority to act as a private prosecutor pursuant to Rule 3:23-9(d).
Moreover, the record does not reflect that Tracz acted as a de facto private municipal prosecutor. In this prosecution the State was represented by the Freehold Township Municipal Prosecutor. Tracz injected himself into the discovery process by sending discovery requests to defense counsel and his cooperation with the discovery process was necessary because he, not the municipal prosecutor, was in possession of the relevant discovery. We reject as without merit Tracz's bald assertion that his standing to appeal is directly conferred upon him in this instance by Rule 3:23-2, which states, in pertinent part, "[t]he defendant, a defendant's legal representative, or other person aggrieved by a judgment of conviction . . . shall appeal therefrom" (emphasis added), as that interpretation is directly contrary to established principles articulated by the Court in State v. Storm, 141 N.J. 245, 252-55 (1995) and its progeny, including Bradley.
We need not address Tracz's substantive challenge to the municipal court judge's dismissal of the complaints as an abuse of discretion in light of the ruling respecting his lack of standing.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION