On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 38-09-P-T23.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2011 - Decided Before Judges Yannotti and Skillman.
Defendant was convicted of assault, in violation of N.J.S.A. 2C:12-1(a)(1), based on his violent confrontation with two men who were attempting to repossess his car.
During the middle of the afternoon on February 18, 2009, Herbert and Brian Dougherty, who were a father and son working as repossession agents for Metropolitan Recovery Bureau, undertook to repossess a pickup truck belonging to defendant. The two repossession men hooked defendant's truck up to their tow truck, which had a wheel lift that raises the vehicle being repossessed off the ground by its drive wheels in order to tow it.
After they had lifted defendant's truck and pulled it into the street, defendant came out of his house. At this point, according to Brian Dougherty, he told defendant they were repossessing his truck, showed him the paperwork authorizing the repossession, and asked him to remove his property from the truck.
Defendant refused to allow the repossession to proceed, stating to Dougherty: "You're not taking it. I'm going to drive it off the back of the truck." Defendant then ran over to the front of his pick-up truck and tried to jump into the driver's seat. However, Herbert Dougherty was already sitting in that seat. Defendant then tried to pull the older Dougherty out of the truck and, after he was unsuccessful in this effort, he turned on the engine and tried to shift it into gear. Brian Dougherty tried to stop this maneuver by grabbing the shift lever to hold it in park, but defendant told Dougherty he was going to bite his hand. Dougherty responded that if defendant bit him, he would punch defendant. According to Dougherty, defendant then bit him, breaking the skin on three fingers. Dougherty tried to extricate his fingers from defendant's mouth, as a result of which both men fell out of the truck, causing defendant to hit his head on the pavement.
Defendant testified to a somewhat different version of the incident, denying that Brian Dougherty ever showed him any paperwork authorizing the repossession of his truck and claiming that he thought the Doughertys were trying to steal the truck. Defendant also denied biting Dougherty's fingers, claiming that any injury to Dougherty's hand occurred when he punched defendant in the mouth.
After this incident, Brian Dougherty filed a citizen complaint in the Warren municipal court charging defendant with assault. Defendant subsequently filed citizen complaints charging both Doughertys with harassment, in violation of N.J.S.A. 2C:33-4, and charging Brian Dougherty with assault.
After a consolidated trial with respect to these charges and countercharges, the municipal court judge credited the Doughertys' version of the incident and discredited the version testified to by defendant and his girlfriend. Based on his credibility findings, the judge found defendant guilty of assault and dismissed the charges defendant had filed against the Doughertys. The municipal court judge imposed a sentence upon defendant of two years probation, incarceration in the county jail for ten days, a $1000 fine, a requirement that defendant enter an anger management program, and statutorily mandated penalties and fees.
On appeal to the Law Division, defendant, who was then represented by counsel for the first time, raised a series of procedural objections to the proceeding conducted in municipal court. The Law Division rejected those objections, which are also raised on this appeal, and found defendant guilty of assault based on a de novo review of the municipal court record. The Law Division imposed the same sentence imposed by the municipal court.
On appeal, defendant presents the following arguments:
POINT I: NO PROBABLE CAUSE SUPPORTED THE ISSUANCE OF THE COMPLAINT. POINT II: THE DEFENDANT VEN WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO COUNSEL. POINT III: THE DEFENDANT'S FIFTH AMENDMENT RIGHTS WERE VIOLATED. POINT IV: THE TRIAL WAS IMPROPER UNDER STATE V. STORM. POINT V: THE EVIDENCE FAILED TO SUPPORT A CONVICTION. POINT VI: THE CUSTODIAL SENTENCE OF THIS FIRST TIME OFFENDER WAS IMPROPER.
We reject defendant's argument that the complaint against him must be dismissed because there was no finding of probable cause substantially for the reasons set forth in the May 14, 2010 written opinion of the Law Division. However, we conclude that defendant's conviction must be reversed because the municipal court judge did not adequately advise defendant of his right to counsel, including the right to assigned counsel if he was unable to afford retained ...