Argued September 23, 2003 - Decided November 14, 2003
Before Judges Skillman, Coburn and Wells.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,
Robert W. Gluck argued the cause for appellant (Mandelbaum, Salsburg, Gold, Lazris, Discenza
& Steinberg, attorneys; Mr. Gluck, of counsel and on the brief; Sherri Orenberg-Ruggieri,
on the brief).
Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent State of New
Jersey (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of counsel and
on the brief).
Mark R. Sander argued the cause for K.B.
See footnote 1
The opinion of the court was delivered by
The defendant, Nicholas Tsilimidos, appeals from the denial of his post-conviction motion to
direct that his plea of guilt to harassment in violation of
not be evidential in civil proceedings.
The factual circumstances, undisputed, are simply described. In May 2002, defendant was charged
with an indictable offense, criminal sexual contact in violation of N.J.S.A. 2C:14-3b and
two disorderly persons offenses, harassment in violation of N.J.S.A. 2C:33-4b and offering alcohol
to a minor in violation of N.J.S.A. 2C:33-17a. The victim of these alleged
offenses, K.B., was a teenage girl in the employ of the defendant.
In July 2002, the defendant initially pled not guilty, but then entered a
retraxit plea of guilty to the harassment charge in accordance with a plea
agreement. The other charges were dismissed. He was sentenced to pay a $100
fine immediately, pay statutory costs and penalties, and ordered to submit to a
psychological examination. The judge reserved the right to impose non-custodial probation, conditioned on
the defendant's attendance at therapy in the event the psychological report recommended that
The following month, K.B. and her parents instituted a civil action against the
defendant for sexual harassment in violation of the Law Against Discrimination, N.J.S.A. 10:5-1
The sentencing proceedings resumed on September 26, 2002. Defendant was resentenced to a
one-year period of probation and to pay restitution of $600, in addition to
previously awarded fines and penalties. Defendant was ordered to have no contact with
K.B. Defense counsel then moved defendant's application to have the judgment include a
provision that it not be evidential in the pending civil case. The judge
denied the motion, rejecting the defendant's argument that because he pled to a
disorderly offense the Municipal Court rule should apply. The judge considered himself bound
by the Superior Court rule and found the defendant had offered no reason
to grant a civil reservation.
Defendant asserts on appeal that R. 7:6-2(a)(1) is applicable to the case of
a petty disorderly offense and should have been applied and his application granted
upon request even though the matter was heard in Superior Court. A second
point urges that the dictates of "even handed" justice require a uniform standard
to prevent forum shopping.
We disagree and affirm. We hold the judge was correct in declining to
apply the Municipal Court rule. There is no question, as the parties recognize,
that there is a significant distinction in the standard applicable to permitting a
civil reservation under the respective Superior Court and Municipal Court Rules. R. 3:9-2
provides: "For good cause shown the court may, in accepting a plea of
guilty, order that such plea not be evidential in any civil proceeding." In
contrast, R. 7:6-2(a)(1) states: "Upon the request of the defendant, the court may,
at the time of the acceptance of a guilty plea, order that the
plea shall not be evidential in any civil proceeding."
Here, the judge clearly was not sitting as a municipal judge. This case
began in Superior Court with an indictable offense and two non-indictable offenses. Both
are cognizable in Superior Court. R. 3:1-1 provides in relevant part:
The rules in Part III govern the practice and procedure in all indictable
and non-indictable proceedings in the Superior Court Law Division and, insofar as they
are applicable, the practice and procedure on indictable offenses in all other courts,
including the municipal courts . . . .
On the other hand, R. 7-1 provides:
The rules in Part VII govern the practice and procedure in the municipal
courts in all matters within their statutory jurisdiction, including disorderly and petty disorderly
persons offenses; other non-indictable offenses not within the exclusive jurisdiction of the Superior
Court . . . .
Because this case was not "in the municipal court," Part VII Rules simply
did not apply. We recognized ten years ago in State v. LaResca,
267 N.J. Super. 411, 421 (App. Div. 1993) that the standard applicable to a
determination whether to grant a request for a civil reservation under R. 7:6-2(a)(1)
is "reduced" compared to the good cause requirement of R. 3:9-2. Under the
former rule, the defendant need merely request such a reservation and the order
will be entered as a matter of course unless the victim or the
State shows good cause not to enter the order. LaResca, supra, 267 N.J.
Super. at 421. We reasoned that the basis for the difference was
the often-informal nature of municipal court proceedings and the varied reasons why people
plead guilty without intending to incur the collateral consequences of the plea: time
constraints; inability to secure witnesses or not wanting to disturb them for a
small matter; unease with court proceedings, etc.
Pleas in criminal or quasi-criminal proceedings are evidential in a civil case as
a statement by a party under N.J.R.E. 803(b)(1). Eaton v. Eaton,
119 N.J. 628, 643-44 (1990). By far and away, the vast majority of civil reservation
orders in municipal court are granted in cases of violations of the Motor
Vehicle Code, N.J.S.A. 39:4-1 to -216, in order to avoid the consequences of
the plea in a civil negligence case arising out of a motor vehicle
accident. The relative ease with which such reservations are granted promotes pleas in
traffic cases while at the same time protecting the interests of the motor
vehicle owner and driver and the insurance carriers in the related civil case.
Similarly, while the standard is properly higher in criminal cases heard in Superior
Court, "good cause" may, nevertheless, be shown to grant a reservation where the
civil consequences of a plea may wreak devastating financial havoc on a defendant.
At the same time a reservation may eliminate an obstacle to a plea
and avoid an unnecessary criminal trial. State v. Haulaway, Inc.,
257 N.J. Super. 506, 508 (App. Div. 1992); Stone v. Keyport Boro. Police Dep't.,
Super. 554, 558 (App. Div. 1983); State v. LaRusso,
242 N.J. Super. 376,
379-380 (Law Div. 1990).
Rarely, if ever, do either accused or victim have a choice of forum
in criminal proceedings. Systemically, the State exercises its prerogative to choose the forum,
a choice dictated by considerations far more weighty than the question of whether
the defendant is entitled to a civil reservation. Accordingly, a unity of standards
contained in the Municipal and Superior Court rules in the matter of granting
a civil reservation is unnecessary to discourage forum shopping. Furthermore, the possibility of
disparate results in the rare case does not warrant the importation of Part
VII rules into proceedings in the Superior Court in the instance of disorderly
persons charges, particularly with regard to an issue so tangential to the principal
issues of such cases.
We do not refer to those instances where to resolve a potential conflict
of interest, for purposes of judicial efficiency and economy or for the convenience
of the litigants, a Superior Court judge sits as a local magistrate to
dispose of a pending case. In that circumstance, the judge should recognize such
differences as may exist between the Part VII Rules and those in Part
III and apply the Part VII Rules governing the Municipal Courts.
For the reasons stated R.3:9-2 applied to this case and defendant failed to
offer any reason sufficient to warrant the granting of his application for a
"no civil use" order. Accordingly, we discern no basis to disturb the judge's
order denying the same.
K.B., the alleged victim of the crime of which the defendant was charged,
has filed a brief on this appeal. She appeared in the trial court
to speak on sentencing issues pursuant to the Crime Victim's Bill of Rights,
N.J.S.A. 52:4B-34 to -38. N.J.S.A. 52:4B-36n. That enactment, however, does not extend to
authorize victims' appearances as of right in the Appellate Division. Accordingly, a motion
for leave to intervene and to file a brief should have been filed
and was not. Because, however, K.B. is the real party in interest on
the issue of whether or not to grant a civil reservation and we
would have favorably considered such a motion had it been filed, we have
overlooked the deficiency in this instance and considered K.B.'s brief on its merits.