On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4649.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Sapp-Peterson and Alvarez.
Defendant, Jay DiMatteo, appeals his conviction of the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(c). Defendant was sentenced in municipal court to thirty days jail time, placed on probation with conditions for a year, fined $500, and required to pay mandatory costs and penalties. On his appeal to the Law Division, pursuant to Rule 3:23, defendant was again found guilty following a trial de novo. The sentence was modified to credit for fifteen days served, a year's probation with conditions, a reduced fine of $250, and costs. We reverse and remand for a new trial.
Defendant was charged by Kelly Miller with forwarding unwanted flowers on two occasions and sending unwanted love letters. Kelly alleged that defendant was essentially stalking her, and that his conduct constituted harassment within the meaning of the statute. On August 16, 2006, a first appearance was conducted on the complaint.
At a first appearance in municipal court, pursuant to Rule 7:3-2, a defendant is to be informed of the pending charges, provided with a copy of the complaint if not previously supplied, and advised of the right to remain silent. "The judge shall [also] inform the defendant of the right to retain counsel or, if indigent, to have counsel assigned." R. 7:3-2. The rule goes on to state that the defendant shall be "specifically asked whether legal representation is desired," and his or her response is to be recorded on the complaint. The rule is basically identical to the procedure employed on a first appearance on indictable matters. Pressler, Current N.J. Court Rules, comment on R. 7:3-2 (2009).
Defendant, who appeared pro se, entered into the following colloquy with the court:
[THE COURT]: All right. Are you going to get an attorney?
[DEFENDANT]: No. I'm not going to get an attorney. I could, but I'm going to handle the case myself.
[THE COURT]: I would - - I want to just go on the record that this is a serious charge and depending on the outcome of this charge you could go to jail.
[DEFENDANT]: I understand that, Your Honor.
[THE COURT]: So, you know, in the middle of this you can't just say, well, I don't like the way this is going - - and I haven't prejudged this in any way. Don't get me wrong. But, you know, you're not an attorney.
[DEFENDANT]: I - - well, I'll leave that up to me. If I come - - if I come with an attorney, I'll have [an] attorney. If not, ...