On appeal from Superior Court of New Jersey, Law Division, Atlantic County, 0077-05.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Stern, A.A. Rodríguez and Lyons.
In the absence of adherence to the Rules governing appeals, we consider defendant's otherwise untimely appeal. Because Part III of the Rules Governing the Courts of the State of New Jersey apply to municipal appeals in the Law Division, defendant was entitled to receive the advice required by R. 3:21-4(h) and to file this appeal as within time, pursuant to State v. Molina, 187 N.J. 531 (2006),*fn1 because the Rule was not honored. To that end, a defendant must be sentenced de novo on the municipal appeal or waive that right on the record.
On October 9, 2003, sixteen-year-old C.L. was hired to baby-sit for J.H., defendant's three-year-old son. C.L. arrived at defendant's home at approximately 6 p.m. Defendant's fiancée (now wife) was leaving to take the couple's two daughters shopping and defendant was supposed to leave as well. However, defendant remained in the house with C.L. and J.H. "for a couple of hours."
Defendant was trying to put J.H. to bed, when J.H. said that he wanted to watch television in his parents' room and defendant said he wanted C.L. "to come with them." When the three entered the bedroom, J.H. laid down "in the middle" of his parents' bed and C.L. and defendant laid down on either side. Defendant began "hugging" J.H. and he "reached over and grabbed [C.L.'s] hand and was rubbing it and he kissed it once . . . ."
He rubbed her hand "for pretty much the whole period of time that [they] were lying there," for approximately four to five minutes.
At that point, J.H. decided that he wanted to go to the girls' room and watch television. C.L. and J.H. went to that room and watched television for ten or fifteen minutes. Thereafter, J.H. wanted to get something out of the living room and C.L. "followed" him there.
While J.H. was in the living room looking for his toys, C.L. stood in the doorway. Defendant "came over and sat next to [C.L.] and put his arm around [her]," rubbed her thigh both "on the inside and outside," "kissed [her] hip," and told her that she had "strong legs." Defendant asked C.L. if she "worked out."
C.L. and J.H. then went back to the girls' room to watch television again. When J.H. fell asleep, C.L. went back downstairs. Defendant had left by then, and C.L. began watching television. When the telephone rang, C.L. answered it. Defendant was calling to see if J.H. was sleeping. Defendant said that "he wished [J.H.] fell asleep earlier so [defendant and C.L.] would have had some time together."
After about a half-hour, defendant returned home. C.L. was sitting on a couch watching television. Defendant asked her "a couple of times how old [she] was and when [she] was turning 18." He asked "how strict" C.L.'s mother was and how late she was "allowed to stay out." Defendant told C.L. to give him a call "on one of [her] days off" and he'd "rearrange his schedule" so that they "could get a hotel room." Defendant told C.L. that he would "rent pornographic movies" so she "knew how [she'd] want to do it." After defendant's fiancée returned home, around 10 o'clock, C.L. walked home and told her mother about defendant's behavior.
Defendant was tried in municipal court and convicted of harassment, a petty disorderly persons offense, N.J.S.A. 2C:33-4(b). A pre-sentence report was ordered. On May 27, 2004, defendant appeared for sentencing. On that appearance defendant claimed that he had rented a hotdog cart to the judge in 1986, but had not been paid. The judge remembered getting a hotdog cart from a client "for a charity event," but had "no recollection whatsoever" of the defendant. Nonetheless, he said that "even if [defendant] consented now to me sentencing him, that would be improper in light of these allegations." The judge thereafter stated:
It will be up to the assignment judge to make . . . a determination whether, in fact, the verdict which I rendered is upheld and if . . . no one had any knowledge of this, I don't know why all of a sudden this was brought to his lawyer's attention because certainly it was no thrill of mine to hear this case, and I would have been more than happy to disqualify myself if I had ever known there was any . . . involvement, and this case took a couple of days of trial time, and for some reason your client never bothered to mention it. I don't know why.
Defendant's counsel apologized, but said that "once [the hotdog cart situation] was told to me, . . . it had to be raised." Defendant's counsel said that he and the prosecutor would "take it up with [Assignment] Judge Armstrong," who subsequently concluded that:
Mr. Taimanglo's delay in raising the "hot dog" cart issue until after the trial occurred and until after he was found guilty of the charge on April 1, 2004 [is] rather inexplicable. However, if there is merit to Mr. Taimanglo's concerns, he should not be precluded from making the appropriate formal application on the record at the time of sentencing requesting that [the municipal judge] recuse himself from the sentencing. If Mr. Taimanglo chooses to make such an application, I would expect his representations regarding the "hot dog" cart allegation to be made under oath.
Should any such recusal application be granted, I will appoint another judge to review the ...