Opinion
DOCKET NO. A-4075-10T2
02-12-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN ALEXANDER, Defendant-Appellant.
Alison Perrone, attorney for appellant. Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 56-10.
Alison Perrone, attorney for appellant.
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from a March 10, 2011 Law Division judgment imposing a $165 sanction for failure to appear at a municipal court proceeding. We affirm, but remand for correction of the judgment of conviction (JOC) to reflect that the sanction be imposed pursuant to Rule 1:2-4(a).
On July 23, 2009, defendant received a ticket in Florence Township for failure to inspect his vehicle, N.J.S.A. 39:8-1. The ticket provided an August 11, 2009 summons date, which was rescheduled for October 13, 2009. Defendant failed to appear in October, but was excused because he informed the municipal court that he was incarcerated in another county at the time. The court did not charge him with failure to appear.
The court noted, however, that "there may be some doubt as to whether" defendant was actually in jail on October 13, 2009.
The court rescheduled the matter for December 8, 2009. Again, defendant did not appear and did not pay his ticket. On December 29, 2009, the court served defendant with a failure to appear notice and required him to appear on January 25, 2010. Defendant did not appear and did not pay the ticket. On February 27, 2010, the court notified the Motor Vehicle Commission that defendant had failed to pay a ticket, and that it should begin the license suspension process. On April 7, 2010, a bench warrant issued after defendant failed to respond to the notice of proposed suspension.
Defendant was purportedly arrested on this warrant and he posted bail on May 17, 2010. The court scheduled the matter for June 2, 2010, and then rescheduled for June 28, 2010. On June 28, defendant appeared, and the court dismissed the charge based on failure to prosecute. The court did, however, impose a $165 fine for defendant's failure to appear on December 8, 2009 and January 25, 2010. The court rejected both of defendant's proffered explanations: that the court had the wrong address on file, and that he was unable to attend due to his incarceration.
Thereafter, defendant appealed the sanction to the Law Division. On November 4, 2010, the judge remanded the case to the municipal court to "clarify which dates the court found that defendant failed to appear." After clarification from the municipal court, the case returned to the Law Division. On March 10, 2011, the judge heard oral argument and stated:
[It is] upon . . . the record of [the municipal] court on December 14th that I make my finding that it has been proven beyond a reasonable doubt . . . that the defendant failed to appear on the two dates. . . . [It is] a nonappearance on two different occasions. Why? I don't know. . . . And[,] we don't have any record of that.The judge then entered the JOC for contempt pursuant to Rule 1:10-1.
Defendant submitted an incorrect JOC on appeal.
On appeal, defendant argues that there is insufficient evidence in the record to sustain the imposition of a sanction.
We review the Law Division's judgment, not the municipal court's. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). Our function is to determine only whether the "findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 4 2 N.J. 146, 162 (1964). Unlike in the Law Division, this court will not make independent findings of fact. State v. Minitee, 210 N.J. 307, 317 (2012). Moreover, we review summary convictions for contempt de novo, and we may enter any order that we deem just. R. 2:10-4; Amoresano v. Laufgas, 171 N.J. 532, 560 (2002).
Rule 1:10-1 provides, in pertinent part:
A judge conducting a judicial proceeding may adjudicate contempt summarily without an order to show cause if:
(a) the conduct has obstructed, or if continued would obstruct, the proceeding;
(b) the conduct occurred in the actual presence of the judge, and was actually seen or heard by the judge;
(c) the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness;
(d) immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner; and
(e) the judge has afforded the alleged contemnor an immediate opportunity to respond.
The order of contempt shall recite the facts and contain a certification by the judge that he or she saw or heard the
conduct constituting the contempt and that the contemnor was willfully contumacious. . . .
Failure to appear may be punished as direct contempt under Rule 1:10-1 where the contemnor refuses to explain the absence, or where the offered explanation is "insulting, frivolous, or clearly inadequate." In re Yengo, 84 N.J. 111, 126-27 (1980), cert. denied, 449 U.S. 1124, 101 S. Ct. 941, 67 L. Ed. 2d 110 (1981); see also State v. Kordower, 229 N.J. Super. 566, 585 (App. Div. 1989). Where, however, there is "some evidence of the adequacy of the explanation," the court "should characterize the matter as an indirect contempt" pursuant to Rule 1:10-2. In re Yengo, supra, 84 N.J. at 127.
Determining whether an absence is excusable typically "requires reference to facts not immediately within the court's perception." Id. at 124-25. Moreover, the "extraordinary power" to punish summarily for direct contempt "should be exercised sparingly and only in the rarest of circumstances." In re Daniels, 118 N.J. 51, 61, cert. denied sub nom. Daniels v. Superior Court of N.J., Appellate Div., 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990). Rule 1:10-1 requires proof beyond a reasonable doubt. Amoresano, supra, 171 N.J, at 549.
Here, both the municipal court and Law Division dealt with defendant's case as a contempt charge under Rule 1:10-1. On remand, the municipal judge referred to the case as a "contempt issue." In the Law Division, defense counsel and the judge made several references to "contempt," and the judge found defendant guilty of failure to appear "beyond a reasonable doubt." Further, defendant offered two explanations for his failures to appear: a mix-up with his address, and incarceration. Defendant's excuses were not "insulting, frivolous, or clearly inadequate." In re Yengo, 84 N.J, at 126-27. Thus, the judge erred by relying on Rule 1:10-1 to impose the sanction.
Nevertheless, defendant's sanction for failure to appear was appropriate under Rule 1:2-4, which provides, in pertinent part:
(a) Failure to Appear. If without just excuse . . . no appearance is made on behalf of a party on the call of a calendar . . . or any other proceeding scheduled by the court, or on the day of trial . . . the court may order any one or more of the following: (a) the payment by the delinquent attorney or party . . . in such amount as the court shall fix,. . . or (d) such other action as it deems appropriate.Unlike proceedings for contempt, Rule 1:2-4(a) does not require "procedural safeguards of the kind accorded criminal defendants." In re Milita, 195 N.J. Super. 1, 2-3 (App. Div. 1984) (affirming a sanction under Rule 1:2-4 that the trial court inappropriately adjudged as contempt).
A judge has discretion to impose sanctions on those who fail to appear or violate court orders. Kohn's Bakery, Inc. v. Terracciano, 147 N.J. Super. 582, 584-85 (App. Div. 1977). Judges should exercise such discretion in light of the most appropriate sanction for the conduct at issue. See Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 10-11 (App. Div. 2007) (stating that the trial court should have "explore[d] the availability of lesser sanctions").
Here, the record adequately supported the judge's findings. The judge found that on December 8, 2009 and January 25, 2010, defendant failed to appear in municipal court for his scheduled hearings. The record included a detailed recitation, by the municipal court, of defendant's procedural history, and of the court documents demonstrating his failure to appear on those two dates. Moreover, the judge found neither of defendant's explanations regarding his failure to appear persuasive. The court had defendant's correct address for months prior to the dates on which defendant failed to appear, and defendant was not incarcerated on those dates. Further, the court sent defendant a failure to appear notice after he was released from custody and after any confusion as to defendant's address had been resolved.
Neither party included the documents in the record, and the Law Division decided the matter on the transcript of the proceeding before the municipal court.
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Additionally, the judge did not abuse his discretion in imposing the $165 sanction. The amount is relatively modest, and is within the "substantial range of permitted sanctions" under Rule 1:2-4(a). Irani v. K-Mart Corp., 281 N.J. Super. 383, 387 (App. Div. 1995).
We affirm but remand to correct the JOC.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION