STATE OF NEW JERSEY VS. ELIAS GUZMAN, III (31-2017, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5271-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELIAS GUZMAN, III,
Defendant-Appellant.
_______________________________
Argued January 9, 2020 – Decided June 9, 2020
Before Judges Nugent and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Municipal Appeal No. 31-
2017.
Luke C. Kurzawa argued the cause for appellant (Reisig
Criminal Defense & DWI Law, LLC, attorneys;
Matthew Whalen Reisig, on the brief).
Patrick F. Galdieri, II, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Christopher L.C. Kuberiet, Acting
Middlesex County Prosecutor, attorney; Patrick F.
Galdieri, II, of counsel and on the brief).
PER CURIAM
Defendant, Elias Guzman III, appeals the Law Division's denial on trial
de novo of his motion to dismiss his motor vehicle summons for driving while
intoxicated, a charge to which he conditionally pled guilty. He argues a single
point:
THE DEFENDANT'S MOTOR VEHICLE
SUMMONS SHOULD BE DISMISSED BY THE
APPELLATE DIVISION SINCE AN UNAPPOINTED
MUNICIPAL PROSECUTOR APPEARED IN THE
STATE'S PROSECUTION IN CALENDAR YEARS
2016 AND 2017, RESPECTIVELY.
More specifically, he argues on appeal, as he did in the trial court, the summons
should be dismissed because an unappointed associate of the duly appointed
municipal prosecutor, not the appointed prosecutor, appeared for seven of the
eight municipal court proceedings that culminated in his guilty plea. Because
the remedy of dismissal is unprecedented and unwarranted, and because
defendant seeks no other remedy, we affirm the Law Division order denying
defendant's motion.
The facts are not in dispute. Early on a May morning in 2014, following
a traffic stop, a North Brunswick Township police officer issued four
summonses to defendant and charged him with driving while intoxicated (DWI),
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N.J.S.A. 39:4-50, reckless driving, N.J.S.A. 39:4-96, speeding, N.J.S.A. 39:4-
98, and failure to exhibit his registration, N.J.S.A. 39:3-29. The parties appeared
in North Brunswick Municipal Court eight times between February 29, 2016,
and November 30, 2017, for hearings and oral arguments on various motions
and a partial trial. 1
During the second day scheduled for trial, defendant orally moved to
dismiss the summonses. He argued that David A. Lonski, who had been duly
appointed by the municipal governing body in 2016 and 2017 as the municipal
court prosecutor, had appeared in only one municipal court proceeding
concerning the motor vehicle summonses. Lonski's associate at Shamy, Shipers
& Lonski, P.C., Robert J. MacNiven, who had not been appointed as an
additional municipal court prosecutor by the governing body, appeared during
the other proceedings.
Before court was adjourned, defendant entered a conditional guilty plea
to the DWI charge, and the judge dismissed the other summonses. Sentencing
defendant as a second offender, the judge suspended his driver's license for two
1
The record does not explain the delay between defendant's arrest and the first
municipal court hearing. The municipal court trial was delayed when the Law
Division granted and resolved defendant's interlocutory appeal of an order
denying a motion unrelated to the issue now before us.
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years, ordered him to complete thirty days of community service, and ordered
him to attend an Intoxicated Driver Resource Center for forty-eight hours. The
judge also ordered defendant to install an ignition interlock device in his
automobile and maintain it for two years after his license was restored. Last,
the judge imposed statutorily mandated fines, penalties, and assessments. The
judge later denied defendant's motion to dismiss, and defendant filed a notice of
appeal to the Law Division, where his motion was denied again. This appeal
followed.
The Legislature has declared that "[e]ach municipal court in this State
shall have at least one municipal prosecutor appointed by the governing body of
the municipality, municipalities or county in accordance with applicable laws,
ordinances and resolutions." N.J.S.A. 2B:25-4(a). The Legislature has also
authorized the appointment of more than one municipal prosecutor: "a
municipality may appoint additional municipal prosecutors as necessary to
administer justice in a timely and effective manner in its municipal court."
N.J.S.A. 2B:25-4(e).
In addition to these statutes, defendant based his motion on the following
relevant, undisputed facts. On January 1, 2016, in a duly adopted resolution, the
Township Council of the Township of North Brunswick "authorize[d] the Mayor
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to execute and the Township Clerk to witness an agreement with David P.
Lonski of the firm Shamy, Shipers & Lonski, PC to serve as municipal
prosecutor for calendar year 2016 . . . ." On January 2, 2017, the council adopted
a resolution with identical wording.
The "Professional Services Contract" for 2016 identified the parties as the
Township and "Shamy, Shipers & Lonski, PC," but authorized the Mayor to
execute the agreement with "David P. Lonski of the firm Shamy, Shipers &
Lonski, PC." The 2017 professional services contract identified the parties as
the Township and "David P. Lonski of the firm Shamy, Shipers & Lonski, PC"
and authorized the mayor to execute the contract "with David P. Lonski of the
firm Shamy, Shipers & Lonski, PC."
Based on an application of statutory construction rules, the Law Division
judge determined that the statutes pertaining to municipal court prosecutors
permitted municipalities to appoint law firms as prosecutors. Acknowledging
"the wording of the resolution[s] and contract[s] are not as precise as one would
hope," the judge nonetheless determined the intent of the resolutions and
contracts was to appoint the law firm, not an individual within the firm, as the
municipal prosecutor. The court found that language in the contracts that
permitted the prosecutor to "secure any and all Professional, technical and non -
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technical staff which may from time to time be necessary" also suggested the
Township "envisioned prosecutorial staff beyond just Lonski."
We agree with the Law Division judge's conclusion, albeit not necessarily
his reasoning, that defendant was not entitled to have the charges against him
dismissed because they were prosecuted in municipal court by a professional not
expressly appointed as a municipal prosecutor by the governing body. "[I]t is
well-settled that appeals are taken from orders and judgments and not from
opinions, oral decisions, informal written decisions, or reasons given for the
ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199
(2001). Defendant has cited no authority, and we can conceive of no
justification, for imposing dismissal as a remedy for municipal charges being
prosecuted by a professional not duly appointed by the municipality.
Dismissal, rather than a new trial, is a rare remedy. For example, N.J.S.A.
2C:1-1(c) provides that a court shall dismiss a case pending or initiated after the
effective date of the New Jersey Code of Criminal Justice if the offense was
committed prior to the effective date and is no longer an offense under the code.
Cases may also be dismissed on double jeopardy grounds. N.J. Const. art. I, ¶
11. In contrast, even in cases involving structural error, the remedy is not
generally dismissal, but rather a retrial or remand for further proceedings. See
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e.g. United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 152 (2006) (holding
erroneous deprivation of counsel of choice is a structural error not subject to
harmless-error analysis, and affirming judgment reversing defendant's
conviction and remanding for new trial); State v. Kates, 216 N.J. 393, 397 (2014)
(explaining that summary denial of defendant's request for an adjournment to
obtain counsel of choice amounts to structural error and requires a new trial).
Significantly, in a case in which we held that a defendant's municipal court
conviction was void ab initio because he was prosecuted by a private attorney
who had not complied with Supreme Court requirements established in State v.
Storm, 141 N.J. 245 (1995), we reversed and remanded for a new trial. State v.
Myerowitz, 439 N.J. Super. 341, 345, 359 (App. Div. 2015). We did not dismiss
the charges against the defendant.
Here, defendant was not convicted at a municipal court trial. Rather, he
entered a guilty plea to DWI. He has not challenged his plea or asked that it be
set aside so that he can proceed to trial. Rather, the sole remedy he seeks is
dismissal of the DWI charge. That remedy is unprecedented and unwarranted.
Accordingly, we affirm his conviction and sentence.
Affirmed.
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