On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Michels, McElroy and J. H. Coleman. The opinion of the court was delivered by Michels, P.J.A.D.
Defendant Ronald M. Spann, an attorney at law of the State of New Jersey, was convicted of contempt of court in violation of N.J.S.A. 2A:10-1 for willfully refusing an assignment to represent an indigent defendant who was charged in the Peapack-Gladstone Municipal Court with speeding (N.J.S.A. 39:4-98 c), driving while under the influence of intoxicating liquor (N.J.S.A. 39:4-50), failing to produce a valid insurance identification card (N.J.S.A. 39:3-29), and simple assault (N.J.S.A. 2C:12-1(a)). The trial judge sentenced defendant to six months in Somerset County Jail, which sentence was suspended and he was fined $1,000. Defendant appeals.
Defendant does not dispute the fact that he was assigned to represent a defendant in the municipal court or that he willfully refused to accept the assignment. Rather, he seeks a reversal of his conviction and the entry of a judgment of acquittal, raising the following contentions in his brief:
POINT I. REPRESENTATION OF INDIGENT DEFENDANTS IN MUNICIPAL COURT PROCEEDINGS IS STATUTORILY MANDATED TO BE UNDERTAKEN BY THE PUBLIC DEFENDER. SPANN, A PRIVATE ATTORNEY, PROPERLY REFUSED THE ASSIGNMENT BY THE MUNICIPAL COURT.
A. The Statutory Scheme versus the State's Claim of Contempt.
B. Spann's Reliance on N.J.S.A. 2A:158A-5.2 for the First Time on Appeal is Appropriate. The Court Should Decide the Issue of its Applicability.
POINT II. THE COURT BELOW ERRED IN RULING THAT SPANN'S ONLY RECOURSE TO CHALLENGE HIS ASSIGNED CLIENT'S "INDIGENCY" WAS TO FIRST ACCEPT AND COMPLETE THE REPRESENTATION OF THAT CLIENT.
POINT III. A JUDGE SHOULD NOT SIT AS THE TRIER OF FACT IN A CRIMINAL CONTEMPT TRIAL WHERE HE IS THE IMMEDIATE SUBORDINATE OF THE ASSIGNMENT JUDGE WHO IS THE CONTEMPT COMPLAINANT, AND A PRINCIPAL WITNESS AT THE TRIAL, AND WHO ALSO HAD ASSIGNED THE TRIAL JUDGE TO SIT IN THE MATTER.
POINT IV. NO FINDING OF THE INDIGENCY OF THE CLIENT ASSIGNED WAS EVER MADE BY THE COURT; THEREFORE, THE COURT LACKED JURISDICTION TO ASSIGN COUNSEL UNTIL SUCH DETERMINATION WAS MADE.
POINT V. SPANN'S ACTIONS CANNOT CONSTITUTE CONTEMPT BECAUSE THE MUNICIPAL COURT NEVER HAD JURISDICTION OVER THE MATTER, SINCE THE CHARGES AGAINST THE PURPORTED INDIGENT WERE NEVER PROPERLY DOWNGRADED.
Our duty on an appeal of a summary conviction for contempt is to try the matter de novo on the trial record, upon the law and the facts, towards the end of adjudicating both guilt and punishment. N.J.S.A. 2A:10-3 and R. 2:10-4. In re Yengo , 84 N.J. 111, 135 (1980), cert. den. 449 U.S. 1124, 101 S. Ct. 941, 67 L. Ed. 2d 110 (1981); Sarner v. Sarner , 28 N.J. 519, 525 (1959), app. dism. 359 U.S. 533, 79 S. Ct. 1137, 3 L. Ed. 2d 1028 (1959), reh. den. 360 U.S. 940, 79 S. Ct. 1446, 3 L. Ed. 2d 1552 (1959); In re Adler , 153 N.J. Super. 496, 499 (App.Div.1977); In re Parsippany-Troy Hills Education Ass'n , 140 N.J. Super. 354, 360 (App.Div.1975); In re Education Ass'n of Passaic, Inc. , 117 N.J. Super. 255, 259 (App.Div.1971); certif. den. 60 N.J. 198 (1972); Newark Bd. of Ed. v. Newark Teachers Union , 114 N.J. Super. 306, 318 (App.Div.1971), certif. den. 58 N.J. 605 (1971), cert. den. 404 U.S. 950, 92 S. Ct. 275, 30 L. Ed. 2d 267 (1971). "The only limitation on our power, beyond that ...