STATE OF NEW JERSEY VS. TROY G. COLVELL (07-2017, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 20, 2018
• Docket: A-0963-17T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0963-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY G. COLVELL,

Defendant-Appellant. _________________________

Submitted October 11, 2018 – Decided December 20, 2018

Before Judges Vernoia and Moynihan.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 07- 2017.

Troy G. Colvell, appellant pro se.

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (John M. Carbonara, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Troy G. Colvell appeals from his convictions, following a trial

de novo on the municipal court record, for violating N.J.S.A. 39:4-561 and

N.J.S.A. 39:3-74,2 arguing:

POINT I

MUNICIPAL PROSECUTOR FAILED TO FULFILL HIS DUTIES.

POINT II

PROSE[C]UTOR AND POLICE OFFICER USE OF CELL PHONE DURING OFFICER'S TESTIMONY AT MUNICIPAL TRIAL.

POINT III

[DEFENDANT] PROPERLY FILED MOTIONS NEVER ADDRESSED BY THE LAW DIVISION.

POINT IV

STATE FAILED TO TIMELY SERVE ITS BRIEF.

POINT V

DEFENDANT DENIED HIS MUNICIPAL APPEAL RIGHTS.

1 N.J.S.A. 39:4-56 provides: "No person shall drive or conduct a vehicle in such condition, so constructed or so loaded, as to be likely to cause delay in traffic or accident to man, beast or property." 2 N.J.S.A. 39:3-74 provides in pertinent part: "No person shall drive any vehicle so constructed, equipped or loaded as to unduly interfere with the driver's vision to the front and to the sides." A-0963-17T3 2 POINT VI

EVIDENCE AND SUPPLEMENTATION ISSUES NEGATIVELY AFFECTING DEFENDANT.

POINT VII

LAW DIVISION ORDER AND DECISION PREMATURE AND INACCURATE.

We determine defendant's arguments in Points I and II to be without

sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2).

We agree, however, that the Law Division judge did not consider defendant's

motions and afford him a trial de novo hearing. We consequently reverse and

remand this matter. As such, defendant's contentions in Point IV are moot; even

if the State's brief was not timely served, defendant now has sufficient time to

address the State's arguments.

Defendant was stopped for driving forty-seven miles per hour in a twenty-

five-mile-per-hour zone. Instead of issuing a speeding summons, the officer

cited defendant for two motor vehicle violations that exposed defendant to lesser

fines than did the speeding ticket and no motor vehicle points.

Following a trial in the municipal court at which he was found guilty of

both violations, defendant appealed to the Law Division. He filed a "Motion for

Production of Documents Objects and Supplementation" and a motion for

A-0963-17T3 3 reconsideration of the court's finding of guilt; there is no record that either

motion was entertained or decided by the court. The Law Division judge did

not hold any trial de novo hearing. He issued a written opinion, concluding

"defendant's appeal is DENIED, and the lower [c]ourt's findings are

AFFIRMED," and, at a separate proceeding, sentenced defendant in open court.

We disagree with the State's present argument that the Law Division judge

had "a right to ignore such frivolous and time consuming motion[s] in the name

of judicial efficiency." While courts have the inherent power "to control the

filing of frivolous motions and to curtail 'harassing and vexatious litigation,'"

Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010) (quoting Rosenblum

v. Borough of Closter, 333 N.J. Super. 385, 387, 391 (App. Div. 2000)), the Law

Division judge made no such finding; he made no finding at all. We held in

Rosenblum that "the complete denial of the filing of a claim without judicial

review of its merits would violate the constitutional right to access of the

courts." 333 N.J. Super. at 390 (citing U.S. Const. amend. XIV, § 1). The

complete disregard of a filed motion has the same constitutional infirmity. Our

Supreme Court warned, "[w]e cannot expect the public to maintain confidence

in the judicial system if judges treat constitutional rights as minor obstacles to

the disposition of cases." In re Bozarth, 127 N.J. 271, 280 (1992). While there

A-0963-17T3 4 is no indication the Law Division judge treated the motions as obstacles, the

failure to address those motions must be remedied. As such, we remand the case

to the Law Division to consider them; we leave their disposition to the court's

discretion.

Notwithstanding that the Law Division in a trial de novo is obliged to

"determine the case completely anew on the record made in the Municipal Court,

giving due, although not necessarily controlling, regard to the opportunity of the

magistrate to judge the credibility of the witnesses," State v. Johnson, 42 N.J.

146, 157 (1964), the criminal division manager is required to "fix a date for [a]

hearing" upon defendant's compliance with the filing requirements of Rule 3:23-

2, R. 3:23-4(b). Although neither Rule 3:23-4(b) nor Rule 3:23-8, titled

"Hearing on Appeal," specifically requires that a hearing take place, the obvious

references in the Rules to a hearing do.

In holding that courts should "ordinarily conduct a hearing on the record"

in contested retail-firearms-dealer applications, we recognized that conducting

open-court hearings – required by Rule 1:2-1 unless prohibited by rule or statute

– is a fundamental principle. In re Cayuse Corp. LLC, 445 N.J. Super. 80, 90-

91 (App. Div. 2016); see also Smith v. Smith, 379 N.J. Super. 447, 450-52 (Ch.

Div. 2004) (tracing our courts' "long and venerable tradition" of openness and

A-0963-17T3 5 recognizing the resultant "numerous beneficial functions" (citation omitted)). In

Cayuse, 445 N.J. Super. at 91, we referenced the Code of Judicial Conduct,

Canon 3(A)(6),3 which provides: "A judge should accord to every person who is

legally interested in a proceeding, or that person's lawyer, full right to be heard

according to law," Code of Judicial Conduct, Pressler & Verniero, Current N.J.

Court Rules, Appendix to Part 1 at 508 (2016). That tenet is especially

applicable to this case in which a self-represented litigant seeks to advance his

municipal appeal. The official comment to current Canon 3, Rule 3.7 of the

Code of Judicial Conduct states: "A judge may make reasonable

accommodations to ensure pro se litigants the opportunity to have their matters

fairly heard." Code of Judicial Conduct, Pressler & Verniero, Current N.J. Court

Rules, Appendix to Part 1, cmt. 1, following Canon 3, R. 3.7 at 538 (2019). As

such, we require on remand that, in a new trial de novo, defendant be afforded

a hearing on the record. In light of the Law Division judge's prior decision, we

require the Presiding Judge of the Criminal Division to assign this appeal to a

different Law Division judge to conduct the trial de novo. See In re Baby M.,

3 The tenet in former Canon 3(A)(6) is now expressed in Canon 3, Rule 3.7 which provides: "A judge shall accord to every person who is legally interested in a proceeding, or to that person's lawyer, the right to be heard according to law or court rule." Code of Judicial Conduct, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part 1 at 538 (2019). A-0963-17T3 6 109 N.J. 396, 463 n.19 (1988) ("The original trial judge's potential commitment

to [his] findings and the extent to which a judge has already engaged in weighing

the evidence persuade us to make that change." (citations omitted)).

During that trial, we caution the new Law Division judge not to follow the

prior judge's path of basing conclusions on the ticketing officer's opinion or

belief that defendant violated the relevant statutes. It is the court's responsibility

to determine if the State's evidence proved the elements of the violations beyond

a reasonable doubt. See State v. Bealor, 187 N.J. 574, 586 (2006) (citing State

v. Fearon, 56 N.J. 61, 62 (1970) and State v. Cummings, 184 N.J. 84, 98-99

(2005)).

Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.

A-0963-17T3 7