Opinion
DOCKET NO. A-3652-10T2
01-12-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AMY MONDADORI, Defendant-Appellant.
Albert P. Mollo argued the cause for appellant. Mary R. Juliano, Assistant Prosecutor, argued the cause for respondent (Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-076.
Albert P. Mollo argued the cause for appellant.
Mary R. Juliano, Assistant Prosecutor, argued the cause for respondent (Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief). PER CURIAM
Defendant appeals from a conviction of simple assault of two individuals after a trial de novo in the Law Division. The sole basis for appeal before the Law Division, was that the City of Asbury Park municipal court erred when it denied defendant's motion to bar the testimony of prosecution witnesses whose anticipated testimony had not been disclosed before trial in the form of written summaries. Judge Anthony J. Mellaci, Jr. rejected defendant's argument and, after reviewing the record evidence anew, entered judgments of conviction on the two assaults. In her present appeal, defendant renews her discovery argument. We affirm.
I.
The case was initiated by two victims' citizen complaints. R. 7:2-2a(1). Defendant filed citizen complaints charging that she was the victim of assault by the same two individuals. The municipal court denied defendant's motion for disclosure of testimonial summaries of anticipated witnesses. The City of Asbury Park municipal prosecutor represented the State in prosecuting the two victims' complaints, as well as defendant's complaint. The municipal court dismissed defendant's complaint upon the municipal prosecutor's motion, without opposition, for lack of proof after she declined to testify, and found defendant guilty of both assaults. The municipal court imposed sentences on each assault consisting of one year of probation conditioned upon completion of an anger management course, a no-contact order, punitive fines and mandatory fees and penalties.
In the trial de novo, Judge Mellaci agreed that defendant was not entitled to pre-trial disclosure of testimonial summaries. In deciding the merits of the complaints, he relied on the testimony of the victims, one of whom had a previous dating relationship with defendant, and two eyewitnesses, concluding beyond a reasonable doubt that defendant had assaulted the two victims. The judge stated that he re-imposed the sentence imposed by the municipal court. However, we note that the Law Division's judgment of conviction that is included in the record before us omits re-imposition of the terms of probation condition on anger management, and the no-contact order, which were ordered by the municipal court.
Defendant renews her argument before us that the State was obliged to create and disclose written summaries of the anticipated testimony of its witnesses. Having failed to do so, defendant argues that the convictions should be vacated, as the witnesses should have been barred from testifying. We disagree.
II.
Neither the Constitution nor our court rules compel the discovery defendant sought. The court reasonably exercised its discretion in denying the requested discovery. Moreover, modification of the discovery rules is appropriately left to the Supreme Court, in exercise of its rule-making power.
Although the State is obliged under due process principles to disclose exculpatory evidence and impeachment materials, there is no general constitutional right to discovery in criminal cases. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963) (due process requires disclosure of exculpatory information); Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed.2d 104, 108 (1972) (Brady requires disclosure of evidence affecting credibility if witness's reliability may affect guilt or innocence); Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed.2d 30 (1977) (there is no general constitutional right to discovery in a criminal case); State v. Marshall, 148 N.J. 89, 269, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d 88 (1997). In short, constitutional principles did not mandate the creation and disclosure of the summaries of anticipated testimony that defendant sought in this case.
The right to discovery in criminal cases is largely a creation of the Rules of Court. However, as Judge Mellaci correctly held, our discovery rules do not oblige the State to create written summaries of the anticipated testimony of all prosecution witnesses. Rule 7:7-7b(8) requires disclosure of "record[s] of statements, signed or unsigned" of persons whom the prosecution knows to have relevant evidence or information, but only if the records already exist. Cf. R. 7:7-7b(11) (requiring the production of an expert's report or "a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion"). Establishing such an obligation would impose substantial burdens on the State, with obvious potential impacts on our municipal courts' capacity to process its high volume caseloads efficiently.
We recognize discovery in criminal cases under our rules is intended to be broad, to assist the search for truth and to accomplish justice. "In general, a defendant in a criminal case is entitled to broad discovery." State v. D.R.H., 127 N.J. 249, 256 (1992) (citation omitted). Moreover, the judiciary is vested with the inherent power to order discovery in a criminal prosecution when justice so requires. Ibid. See also State ex rel. W.C., 85 N.J. 218, 224 (1981) (court has "inherent power" to order pretrial lineups as part of discovery process, notwithstanding that no procedural rule provided for it); R. 7:7-7(a) (stating "discovery shall be available to the parties only as provided by this rule, unless the court otherwise orders"). "Whether discovery should be expanded involves exercising judicial discretion or, put another way, balancing the beneficial effects of discovery against its disadvantages." State ex rel. W.C., supra, 85 N.J. at 224.
However, we discern no abuse of discretion in the court's decision to deny defendant the extraordinary discovery she sought. We are unpersuaded by defendant's argument that the initiation of this case by citizen complaints, and the alleged absence of police reports, provided unique circumstances warranting the discovery sought. Through the citizens' complaints, defendant was placed on adequate notice of the allegations against her. Moreover, the fact that citizens initiated the case actually undermines defendant's argument. Given the nature of the case, neither defendant nor one of the complainants was apparently willing even to speak to the prosecutor in advance of trial. Witnesses were subpoenaed by a complainant, not the prosecutor. Thus, it would have been unrealistic to impose upon the State an obligation to summarize the anticipated testimony of parties it had not interviewed and witnesses it did not control.
Finally, we observe that it is not for this court to dictate a general change in the State's obligation to provide discovery to a municipal court defendant. The matter is most appropriately reserved for the Supreme Court in the exercise of its rule-making authority. See Constantine v. Twp. of Bass River, 406 N.J. Super. 305, 331 (App. Div.) (stating that, absent legislation, the issue of what fees may be charged for municipal court discovery lies within the authority of the Executive branch, or the Supreme Court's rule-making authority over practice and procedure), certif. denied, 200 N.J. 208 (2009).
In sum, for the reasons stated, we find no error in the court's decision to reject defendant's discovery request. However, we are compelled to remand to enable the Law Division to correct an apparent error in the judgment of conviction by conforming it to the court's oral decision, wherein the court expressed its intention to reimpose the same sentence imposed by the municipal court, which included terms of probation conditioned on anger management, and a no-contact order. See State v. Walker, 322 N.J. Super. 535, 556 (App. Div.) (the sentencing transcript is the true source of the sentence), certif. denied, 162 N.J. 487 (1999). If it was not the court's intention to adopt those aspects of the municipal court sentence, then it should so clarify.
Affirmed, and remanded for correction or clarification of judgment of conviction.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION