Opinion
DOCKET NO. A-5538-12T1
10-03-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. COLETTE MARKOVIC, Defendant-Respondent.
Ronald P. Mondello, attorney for appellant. Law Offices of Charles Shaw, P.C., attorney for respondent (Romain D. Walker, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-04-13. Ronald P. Mondello, attorney for appellant. Law Offices of Charles Shaw, P.C., attorney for respondent (Romain D. Walker, on the brief). PER CURIAM
The State appeals from the June 26, 2013 Law Division dismissal with prejudice of Borough of Fair Lawn complaints issued to defendant Colette Markovic for failure to register as well as pay fire registration fees and penalties pursuant to a Borough ordinance. Because the judge failed to state his findings when dismissing the complaints for "failure to provide basic discovery" after opposing counsel disagreed as to the discovery provided, we reverse.
Defendant is the owner of three commercial properties located at 5-10, 5-14 and 5-16 Banta Place in Fair Lawn. She was charged in six complaints with failing to register her properties with the Borough in accordance with the New Jersey Uniform Fire Safety Act (the Act) and the New Jersey Uniform Fire Code between 1998 and 2012. Fair Lawn Borough Code §§ 94-12, 104-10; N.J.S.A. 2A:58-1, 52:27D-192. The Borough's Fire Marshall, Jay Bender, testified in municipal court that defendant refused to pay the assessed registration fees despite yearly notifications by mail and personal delivery. He testified that he classified the properties as storage facilities because "they are used primarily for the storage of moderate hazard contents which are likely to burn with moderate rapidity but do not produce [] poisonous gases." Bender reviewed the certificates of occupancy and visited each of the properties before he classified them. He said they each had only a small office that was incidental to the primary storage use of the building. Although defendant was not present for trial in the municipal court, her lawyer raised the issue that defendant believed the properties should be classified as business use rather than storage, which would reduce the fees. Defense counsel indicated his client agreed to pay what was due, but that a lesser amount was owed because of the misclassification of the buildings.
The complaints reference the three properties separately. Three of the complaints cover 1998 to 2011 and three were issued for 2012.
At the previous court event defendant had not appeared and the municipal court told counsel the trial would proceed on the next date with or without defendant present. Counsel waived his client's appearance on the trial date.
Prior to trial, defense counsel sought a copy of all fire inspection files and reports for all commercial buildings in Fair Lawn from 2002 to present. Finding this request overly broad, the municipal court denied it, indicating:
Defense counsel had filed a request under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13, which the municipal court converted to a discovery request.
If at the time of trial it appears that the information or any portion of it will be relevant or necessary for defendant's defense . . . the Court can always mold an appropriate remedy at that time and grant a continuance of the trial, if necessary.On the trial date the prosecutor indicated that at defendant's request he had supplied information regarding eighteen other properties and, when defendant requested the same information regarding five more properties, that information was also supplied by the prosecutor on the trial date. Bender testified that the discovery furnished defendant cost Fair Lawn $600 because it had to be extracted by a software company as the information on the unrelated properties was no longer "available on the system[.]"
The prosecutor did not seek reimbursement from defendant, although pursuant to Rule 7:7-7(i)(3):
If the defendant requests an electronic record: (1) in a medium or format not routinely used by the prosecutor; (2) not routinely developed or maintained by the prosecutor; or (3) requiring a substantial amount of manipulation or programming of information technology, the prosecutor may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on (1) the cost for any extensive use of information technology, or (2) the labor cost of personnel providing the service that is actually incurred by the prosecutor or attributable to the prosecutor for the programming, clerical, and supervisory assistance required, or (3) both. Pursuant to R. 7:7-1, the defendant shall have the opportunity to review and object to the charge prior to it being incurred.
At a hearing five weeks after trial, the municipal court judge assessed an aggregate of $27,900 for the violations and an additional $198 in court costs. Defendant did not attend this hearing, but on her behalf her counsel alleged that his client had told him that the discovery he received on the trial date contained unspecified "discrepancies" when compared with what defendant had seen in the Fire Marshall's office months prior to trial.
Defendant filed an appeal to the Law Division. At the first Law Division hearing, in response to defense counsel's argument that his client was being treated in a disparate manner by Fair Lawn, the judge ordered that defense counsel could inspect three years of fire records and make photocopies of the records he wanted. Four weeks later the judge dismissed the complaints without prejudice because the discovery he ordered had not been supplied, expressing his opinion that it was extremely unlikely that Fire Marshall Bender was unable to readily produce a copy of the records, as Bender had represented. The State then filed a motion to vacate the dismissal, seeking oral argument and supported by a certification from counsel that Fair Lawn had once again retained the software company at the additional cost of $600 to supply copies of the records as ordered by the Law Division. Defense counsel responded with a cross-motion seeking a dismissal with prejudice supported by an attorney certification listing various remaining deficiencies in the State's discovery. Without oral argument or any articulated reasons, the judge granted defendant's cross-motion to dismiss the complaints with prejudice.
Although this is a quasi-criminal matter, counsel and the Law Division judge appear to have viewed the civil discovery rules as applicable. Rule 4:23-5 mandates a two-step process for dismissing complaints on the basis of a litigant's failure to comply with discovery requirements. First,
If a demand for discovery . . . is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to the discovery may . . . move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. . . . Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice.In the second step of this process,
[R. 4:23-5(a)(1).]
If an order of dismissal or suppression without prejudice has been entered . . . and not thereafter vacated, the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice. . . . The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated."The delinquent party may move on notice for vacation of the dismissal or suppression order at any time before the entry of an order of dismissal or suppression with prejudice." R. 4:23-5(a)(1).
[R. 4:23-5(a)(2).]
The main objective of the two-tier sanction process in Rule 4:23-5 is to compel discovery responses rather than to dismiss the case. See Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 96 (App. Div. 2008).
We recently held in a civil context that the trial court must "set forth what effort was made to secure compliance" with discovery and place those efforts on the record before dismissing a complaint with prejudice. A&M Farm & Garden Ctr. v. Am. Sprinkler Mech. L.L.C., 423 N.J. Super. 528, 539 (App. Div. 2012). The Law Division judge did not hold a hearing to determine whether or not the State complied with defendant's discovery request, nor express reasons for his decision. Thus we have no way to evaluate, even within the civil standards that do not apply in a quasi-criminal matter, whether the judge misapplied his discretion in dismissing the complaint with prejudice. R. 1:6-2(f); R. 1:7-4; Twp. of Parsippany-Troy Hills v. Lisbon Contractors, Inc., 303 N.J. Super. 362, 367 (App. Div. 1997).
The State did not argue that the civil discovery rules should not have been applied by the judge and we do not review issues not raised by the parties. State v. Arthur, 184 N.J. 307, 327 (2004). We expect, however, that the judge will apply the correct discovery procedures on remand. See R. 7:7-7(j) (governing failure to comply with discovery in the municipal courts); see also State v. Carrero, 428 N.J. Super. 495, 507-08 (App. Div. 2012) (limiting the right to extensive defense discovery absent a reasonable justification in two quasi-criminal drunk driving cases).
We have no doubt that the Law Division judge acted within his discretion pursuant to Rule 3:23-8(2) when requiring that additional discovery be provided to defendant for her de novo appeal, although defendant did not present any evidence whatsoever of a motivating discriminatory purpose or a discriminatory effect. United Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 25-26 (App. Div. 2001) (stating that proof of both are required to succeed on a claim of unconstitutional enforcement of an ordinance); State in the Interest of A.B. , ___ N.J. ___, ___, (2014) (slip op. at 14-15) (citing State ex rel. W.C., 85 N.J. 218, 228 (1981)) (stating that defendant has the burden to demonstrate the need for non-routine discovery). We are unable to properly assess the decision to dismiss these violations with prejudice without findings of fact regarding the State's discovery violations. In the criminal arena, dismissal of charges is a last resort. State v. Ruffin, 371 N.J. Super. 371, 384-85 (App. Div. 2004); see also State v. Prickett, 24 0 N.J. Super. 139, 147 (App. Div. 1990) (stating in a drunk driving case that "[w]e have frequently cautioned that in the administration of justice dismissal must be a recourse of last resort").
Defendant has not raised the issue of double jeopardy with regard to a reinstatement of these charges. Nonetheless, for completeness, we note that jeopardy did not attach because the Law Division judge did not review the facts nor make a finding based on the evidence. As our Supreme Court has stated:
In certain circumstances, i.e., where the proceedings against an accused are terminated during trial on a basis unrelated to factual guilt or innocence, the State may appeal from a ruling of the trial court in favor of the defendant without offending the principles expressed in the double jeopardy clause. . . . However, such an appeal is allowed only if the factfinder has not yet made a determination of the guilt or innocence of defendant.
[State v. Widmaier, 157 N.J. 475, 490-91 (1999)(quotation marks and citations omitted).]
Reversed and remanded to the Law Division for further proceedings consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
We note that defendant did not file a motion seeking relief and thus we disregard the request in her brief to sanction the State for its improper appendix.
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CLERK OF THE APPELLATE DIVISION