indictable complaints instead of sending them for grand
jury action, the municipal court does not lose its
jurisdiction to entertain the disorderly persons matter
irrespective of the fact that the statute of limitations has
run for the filing of a non-indictable charge, provided
that the original indictable offense was filed within the
time applicable for that offense. State v. Stern, 197 N.J.
Super. at 53-54. See N.J.S.A. 2C:1-6b(2); N.J.S.A. 2C:1-
6d. See also State v. Cummings, 122 N.J. Super. 540, 543-
544 (App. Div. 1973); N.J.S.A. 2C:1-1e. Note,
however, that such a rule will likely not apply in those
situations where the charging of an indictable offense was
merely a sham or ploy to avoid the expiration of the
statute of limitations on the appropriate disorderly
persons offense charge. See State v. Stern, 197 N.J. Super.
at 54.
The Superior Court may impose no greater sentence
than that imposed in the municipal court, State v.
DeBonis, 58 N.J. 182, 188-89 (1971); see State v.
Czachor, 82 N.J. 392, 408-409 (1980); State v. Nash, 64
N.J. 464, 469-470 (1974), as the court’s jurisdiction is
appellate, not original. The judgement of the Superior
Court is thereupon substituted for that of the municipal
court.
III. GENERAL CONSTITUTIONAL ISSUES
A. Right to Jury Trial
Trial by jury is not accorded to one charged with a
disorderly persons offense or with a violation of a
municipal ordinance. N.J.S.A. 2C:1-4b. Such offenses
are deemed “petty offenses” rather than crimes within the
provisions of our state constitution relating to indictment
and trial by jury. Duncan v. Louisiana, 88 S.Ct. 1444
(1968); In re Yengo, 84 N.J. 111, 120-121, cert. denied,
449 U.S. 1124, 101 S.Ct. 941 (1981); State v. Owens, 54
N.J. at 157; State v. Linnehan, 197 N.J. Super. 41 (App.
Div. 1984); State v. Stern, 197 N.J. Super. 49 (App. Div.
1984); State v. Wishnatsky, 258 N.J. Super. 67, 80-81
(Law Div. 1990); State v. Zoppi, 196 N.J. Super. 596 (Law
Div. 1984). The maximum punishment authorized for
a disorderly persons offense, six months, is below that
authorized for a crime, and a conviction for such an
offense carries none of the consequential civil disabilities
which follow upon a conviction for a crime.
Note that where factually related petty offenses are
tried together, thus exposing the defendant to a potential
sentence in excess of six months, and the defendant is not
offered a jury trial, the sentence ultimately imposed may
not total more than six months. State v. Owens, 54 N.J.
at 163; State v. Linnehan, 197 N.J. Super. at 43. Note also
that concurrent jail sentences, each of which does not
exceed six months, are permissible.In State v. Linnehan, 197 N.J. Super. at 43-44, the
court held that the revocation of the defendant’s driver’s
license for a period of ten years and the excess insurance
premiums involved in his third conviction for drunk
driving were insufficient to convert a petty offense into a
crime so as to require a trial by jury. Also, fines may be
added to a six-month term without involving the rights
attendant on prosecution for crimes. State v. Zoppi, 196
N.J. Super. at 600.B. Right to Counsel (See R. 3:4-2(b); R. 7:3-2(b))
In Argersinger v. Hamlin, 407 92 S.Ct. 2006 (1972),
the Court held that “absent a knowing and intelligent
waiver, no person may be imprisoned for any offense,
whether classified as petty, misdemeanor, or felony,
unless he was represented by counsel at his trial.” These
same views had been expressed by the New Jersey
Supreme Court in Rodriguez v. Rosenblatt, 58 N.J. 281
(1971), wherein the court held that “as a matter of simple
justice, no indigent defendant should be subjected to a
conviction entailing imprisonment in fact or other
consequence of magnitude without first having had due
and fair opportunity to have counsel assigned without
cost.” Id. at 295. See also State v. Laurick, 120 N.J. 1, 7,
cert. denied, 498 U.S. 967, 111 S.Ct. 429 (1990); State
v. Lazarchick, 314 N.J. Super. at 516.An indigent defendant may waive counsel but must
do so intelligently and voluntarily. A painstaking
explanation of the advisability of and right to counsel, as
well as an inquiry into the defendant’s understanding,
must precede acceptance of a waiver. State v. Lach, 213
N.J. Super. 466, 470-471 (App. Div. 1986); State v.
Guerin, 208 N.J. Super. 527, 531-536 (App. Div. 1986).In State v. Hermanns, 278 N.J. Super. 19 (App. Div.
1994), the Appellate Division reversed defendant’s
convictions for a variety of disorderly persons offenses
because she was deprived of her right to counsel in
municipal court. In municipal court defendant showed
up without counsel and asked for a “dismissal” because
her counsel from a previous trip to municipal court had
not “been assigned to represent” her and she had no other
attorney. The judge, on representation of the municipal
prosecutor that the Law Division had previously denied
her application for counsel in a prior unrelated appeal,
denied defendant’s request and did not inform her of her
right to retain counsel if she could afford it, make