On appeal from Superior Court, Law Division, Monmouth County.
Pressler, Scalera and Stern. The opinion of the court was delivered by Stern, J.A.D.
[229 NJSuper Page 533] Defendant appeals from his convictions on two counts of simple assault, N.J.S.A. 2C:12-1a. The convictions followed a trial on cross complaints filed in the Manalapan Township Municipal Court. We reverse and remand for a new trial.
Defendant filed complaints charging Joseph and Paul Giuliano with criminal trespass, N.J.S.A. 2C:18-3, and several motor vehicle violations. The Giulianos also filed complaints against defendant alleging two counts of simple assault, N.J.S.A. 2C:12-1a, two counts of harassment, N.J.S.A. 2C:33-4, and four counts of disorderly conduct, N.J.S.A. 2C:33-2. The events leading to the cross complaints followed the arrest of the Giulianos by defendant, an off duty New Jersey State trooper.
Defendant testified that while at home on the afternoon of February 8, 1987, he observed two persons operating all terrain vehicles (hereinafter ATVs, although called ATCs at trial) on his land. After observing the ATVs again about five minutes later, defendant immediately endeavored to follow and locate the trespassers in his truck. He discovered the Giulianos on their ATVs a short distance from his home. When he endeavored to arrest them, a confrontation and scuffle ensued.
At trial there was a factual dispute as to whether the Giulianos had operated their ATVs on defendant's property, when defendant identified himself as a police officer and how much force he used in endeavoring to arrest the Giulianos. Ultimately, defendant was able to force or get both Giulianos into his truck and transport them to the Manalapan Police Station. The cross complaints were subsequently filed.*fn1
The cross complaints were tried before the Manalapan Township Municipal Judge on May 19 and June 2, 1987. The Giulianos were represented by counsel, who indicated he was representing them "with respect to the charges lodged against them and prosecuting the charges lodged in turn against Mr. Dwyer
. . .". In response to questions posed by the judge at the outset of the trial, defendant indicated that he was representing himself, that he had "no problem in that regard," that he had had an opportunity to retain counsel and that he was voluntarily acting as his own attorney. When the Giulianos' attorney indicated to the judge that defendant had filed his complaints "first in point of time," the following colloquy occurred:
THE COURT: All right. Mr. Dwyer, we'll hear you first. Mr. Dwyer, you can take the stand and we'll hear your complaints first. In order to hear the whole story at once, even though it's a little awkward, I would like to hear the basis of the complaints that you took out against Mr. Paul and Mr. Joseph Giuliano, as well as, whatever you want to tell me with respect to their complaints against you. Okay?
MR. DWYER: As long as I can provide anything --
THE COURT: Yeah, sure. (Indiscernible) to say anything they want to say.
Defendant then testified as to the facts related to the charges he filed against the Giulianos and, at least to some degree, their complaints against him. On his direct testimony, defendant testified that he "grabbed" the Giulianos and indicated that they "struggled." The cross-examination included questions about defendant's efforts to arrest the Giulianos.
After defendant finished his testimony, he indicated that he had no other witnesses on his case. Defendant indicated that he was resting his case unless his wife was available to testify at the next session, and the court indicated that he would give defendant the opportunity to call her at that time. After the court reserved ...