On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 55-2006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 26, 2007
Before Judges Payne and Sapp-Peterson.
The State appeals from the order of the Law Division vacating defendant's conviction in municipal court for resisting arrest due to the municipal court judge's failure to permit defense counsel to make a closing argument. We reverse the ruling of the Law Division and remand the resisting arrest charge to the Winslow Township Municipal Court for trial before another judge.
Defendant's charges arose out of her July 20, 2005 arrest for aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and resisting arrest, N.J.S.A. 2C:29-2(a)(3). The aggravated assault charge was later downgraded to simple assault, N.J.S.A. 2C:12-1(a). Trial proceeded before the municipal court judge on July 10, 2006. At the conclusion of the testimony, the court inquired of counsel whether "both sides rest" and defense counsel responded, "That's correct, Your Honor." The judge proceeded to render her oral decision, which defendant apparently interrupted by openly praying, causing the judge to admonish the defendant before continuing with her decision. At no time while the judge was delivering her decision, or even when the judge briefly stopped to admonish defendant, did defense counsel alert the judge that he wanted to make a closing argument. The judge found defendant guilty of resisting arrest and, sua sponte, disorderly conduct, N.J.S.A. 2C:33-2(a). The judge invited defense counsel to speak prior to sentencing. It was at that point that defense counsel told the judge that he had intended to make a closing argument. The judge remarked, "No, that wasn't necessary, counsel." The court imposed a fine, penalty and court costs on the resisting arrest charge and court costs on the disorderly conduct offense.
Defendant filed a de novo appeal to the Law Division, arguing that she was denied her Sixth Amendment right to counsel, the municipal judge failed to make adequate findings of fact on the resisting arrest conviction, and the judge, without any notice, sua sponte found her guilty of an uncharged offense, disorderly conduct. Based upon his de novo review of the record, the Law Division judge found defendant not guilty of disorderly conduct*fn1 and, although convinced by the evidence that the State had sustained its burden on the resisting arrest charge, vacated the conviction because the municipal judge did not afford defense counsel the opportunity for closing argument. The State's ensuing appeal followed.
Because the Law Division judge decided an issue of law, the scope of our review is de novo and we owe no deference to the judge's legal conclusion that the municipal judge's procedural error required that the court reverse the decision and vacate defendant's conviction. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (no deference is owed to the trial court's "interpretation of the law and the legal consequences that flow from established facts"). While we agree reversal was appropriate, the matter should have been remanded to the Winslow Township Municipal Court for a new trial.
Rule 1:7-1(b) provides that "after the close of the evidence and except as may be otherwise ordered by the court, the parties may make closing statements in the reverse order of opening statements." As the rule makes clear, there is no mandatory requirement that summations be given. There is, however, no question that where requested, a defendant is entitled to make a closing argument. As the Supreme Court stated in Herring v. New York, 422 U.S. 853, 858-59, 95 S.Ct. 2550, 2553-54, 45 L.Ed. 2d 593, 597 (1997),
There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge. The issue has been considered less often in the context of a so-called bench trial. But the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a non-jury criminal trial is a denial of the basic right of the accused to make his defense.
Here, defense counsel specifically advised the municipal judge that he had intended to make closing arguments. Thus, this case does not present the situation where the Law Division was required, in its de novo review, to determine whether defendant affirmatively waived his right to have defense counsel make a closing argument. See State v. Vigilante, 194 N.J. Super. 560, 565 (Law Div. 1983). We are satisfied that the judge properly concluded that the failure to afford the defense the opportunity to make a closing argument warranted reversal of defendant's conviction for resisting arrest.
The Law Division judge erred, however, when he failed to order a new trial. As the State argues in its brief, the reversal of defendant's conviction did not implicate double jeopardy concerns. See State v. Golotta, 354 N.J. Super. 477, 484 (App. Div. 2002). The reversal was due to the municipal judge's failure to afford defense counsel an opportunity to make closing arguments, which is trial error, as opposed to a reversal based upon a lack of evidential support to sustain the conviction. Hence, there was no bar to retrial. See State v. Lane, 279 N.J. Super. 209, 214 (App. Div. 1995).
The judgment of the Law Division is reversed and the matter is remanded to Winslow Township Municipal Court for a new trial before another ...