                                NOT FOR PUBLICATION WITHOUT THE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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                                         2
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.
                                                                            A-5271-17T4
                                        3
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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                                        4
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 -


                                                                           A-5271-17T4
                                        5
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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                                        6
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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