On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Before Judges Stern, Keefe and Humphreys.
The opinion of the court was delivered by
Tried without counsel, defendant was found guilty in the South Plainfield Municipal Court of fifteen ordinance violations. The complaints charged defendant with having "a prohibited automobile," having an oversized fence and accumulating trash on her property. She was fined $200, together with $25 in costs, on each conviction, aggregating $3,375. On appeal to the Law Division, the defendant was again found guilty on eight of the fifteen complaints. The same fines and costs, totalling $1,800, were imposed.*fn1 Defendant now appeals to us and contends:
POINT I THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
A. MUNICIPAL COURT IMPROPERLY FAILED TO CONSIDER APPOINTMENT OF COUNSEL TO THE INDIGENT DEFENDANT.
B. INDIGENT DEFENDANT WAS DENIED APPOINTED COUNSEL AT TRIAL DESPITE POTENTIAL FOR IMPRISONMENT AND SUBSTANTIAL FINES.
C. MUNICIPAL COURT FAILURE TO CONSIDER APPOINTMENT OF COUNSEL DEPRIVED INDIGENT DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL.
D. APPOINTMENT OF COUNSEL TO INDIGENT DEFENDANT ON SUPERIOR COURT DE NOVO REVIEW DID NOT CURE DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL BY MUNICIPAL COURT.
POINT II SUPERIOR COURT ERRED IN APPELLATE DE NOVO REVIEW IN DENYING MOTION TO SUPPLEMENT RECORD AND IN AFFIRMING MUNICIPAL COURT CONVICTIONS.
We reverse and remand for a new trial in the municipal court of the charges on which defendant was found guilty on trial de novo. We do so because she was deprived of her right to counsel in the municipal court. She may not, of course, be retried on the charges on which she was acquitted or found "not guilty" by the Law Division. See, e.g., State v. Barnes, 84 N.J. 362, 369, 420 A.2d 303 (1980); State v. Mc Kelvey, 142 N.J. Super. 259, 260-1 (App. Div. 1976).
This was not defendant's first appearance before the municipal court. When defendant asked the municipal Judge if her case could be dismissed because she did not "have an attorney" and because counsel assigned to her on a prior matter "wasn't assigned to represent" her on the current charges, the request was denied. The denial was premised on the prosecutor's oral report to the municipal Judge that the Law Division had denied defendant's application for counsel on a prior unrelated appeal. The
Judge told defendant, "it's denied by the upper court, not by me. I'm denying it anyway." The Judge did not advise defendant of her right to retain counsel if she could afford an attorney. Nor did he advise defendant of her right to make an application for the assignment of counsel, or to make a showing that she was then indigent. But see R. 3:27-2; R. 7:1; State v. Laurick, 120 N.J. 1, 7-8, 575 A.2d 1340 (1990); State v. Gonzalez, 114 N.J. 592, 608, n.7, 556 A.2d 323 (1989); State v. VanRiper, 250 ...