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State v. Hishmeh

Decided: July 16, 1993.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONNA HISHMEH, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Union County.

Antell, Dreier and Skillman. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Defendant appeals from convictions of failing to observe a traffic signal, N.J.S.A. 39:4-81, and leaving the scene of an accident, N.J.S.A. 39:4-129. She was fined $200 plus costs on each charge, for a total of $252 in the Plainfield Municipal Court. After a trial de novo in the Law Division, she received the same penalty.

Defendant was proceeding south on Plainfield Avenue in Plainfield when she allegedly ran a red light, striking the complaining witness' vehicle, which was proceeding west on West Fourth Street. After the accident, she travelled approximately two blocks when she stopped by the side of the road. Two other motorists, who had been behind the car that was struck, pursued defendant. One pulled in front of her and the other behind her after she had stopped. According to the investigating officer, defendant's vehicle may have been disabled. One of the witnesses who had pursued her testified that he attempted to flag defendant down, but did not know whether she pulled over because he did so, because of the condition of her vehicle, or because she voluntarily stopped. According to this witness, defendant told him either that she did not know why she left the scene, or that she did not know that she left the scene. She had a head injury, and was somewhat dazed, but nevertheless walked with the other drivers back to the scene of the accident. While she was doing so, a police car drove up and she flagged down the patrolman, who accompanied her back to her car. She gave him her wallet, which contained her license, and he retrieved the registration from the vehicle. Although the patrolman stated that the place her vehicle was

stopped might have been a quarter mile from the scene of the accident, other witnesses stated that it was two short blocks away (4th Street to 6th Street). The motorists estimated the distance at approximately 300 feet.

At the trial in the municipal court, defendant received no individualized advice concerning her right to an attorney, although a general statement was made by the Judge at the start of the evening's proceedings. See R. 7:4-4(d). Also, the municipal court Judge permitted the police officer to question witnesses on behalf of the State and further informed defendant that if she testified she would be cross-examined by the police officer. She stated, "I'd like to testify but since I don't have an attorney to cross-examine me, since Mr. Egbert [the police officer] is going to cross-examine me, I just want to sit out." She objected to the officer acting as the prosecutor, and again stated "I'd like to testify but I reserve that right not to because I don't have an attorney to cross-examine while Mr. Egbert states on the, you know, is working on the State's behalf." The Judge told her that she had elected to proceed without an attorney, but that she could testify or could remain silent. If she testified, she would be cross-examined by the officer.

Defendant raises two points on this appeal and states that neither was raised in the Law Division. The first is that the police officer should not have been allowed to act as the State's attorney. This was at least partially raised in the municipal court. The second point is that she was denied her right to counsel.*fn1

Apparently, the only reason defendant did not testify was that she feared cross-examination by a police officer when she was not represented by counsel. Under R. 7:4-4(b), the State's representation is limited to the Attorney General, the county or municipal attorney, or an attorney appearing on behalf of a complaining witness.*fn2 Thus absent an appearance by a municipal prosecutor, defendant's testimony would have been received, subject to such questions that the Judge may have directed to her. Defendant was given no advance warning, before deciding to proceed without an attorney, that the court would depart from this normal procedure. Given defendant's specific objection at the trial, this departure from procedure is enough to warrant a new trial.

Second, it is clear that each defendant must be given an individual statement concerning the right to counsel if the defendant faces a significant penalty, a "consequence of magnitude." See February 25, 1986 Memorandum to Municipal Court Judges from the Chief Justice. The memorandum stated:

MEMORANDUM TO: Municipal Court Judges

SUBJECT: R. 3:4-2 -- Advising Defendants of ...


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