February 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC VEN, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 counsel, and the risks of representing himself. This conclusion makes it unnecessary to consider defendant's other arguments.
Rule 7:3-2 provides that "[a]t the defendant's first appearance . . . [t]he judge shall inform the defendant of the right to retain counsel or, if indigent, to have counsel assigned." Each defendant in municipal court must be directly advised of these rights. See State v. Gonzalez, 114 N.J. 592, 608 (1989). Rule 7:3-2 also requires the municipal court to "inform the defendant of the range of penal consequences for each offense charged."
The right to the assistance of counsel stems from the United States Constitution. U.S. Const. amend. VI. The right to counsel is also protected by the New Jersey Constitution. N.J. Const. art I, ¶ 10. A defendant may waive the right to counsel only if the waiver is "knowing and intelligent." State v. Reddish, 181 N.J. 553, 592 (2004).
In order to find that a waiver of counsel was knowing and intelligent, "[t]he court must make certain by direct inquiry on the record that defendant is aware of 'the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.'" State v. Kordower, 229 N.J. Super. 566, 577 (App. Div. 1989) (quoting State v. Cole, 204 N.J. Super. 618, 623 (App. Div. 1985)); see also Reddish, supra, 181 N.J. at 592-95. This requirement is applicable to the trial of a disorderly persons offense in municipal court. See State v. Ashford, 374 N.J. Super. 332, 336-37 (App. Div. 2004); State v. Abbondanzo, 201 N.J. Super. 181, 184-85 (App. Div. 1985); see also Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971).
At defendant's initial appearance before the municipal court, the judge had the following brief discussion with him regarding the retention of counsel:
THE COURT: Mr. Ven, you're charged with one count of assault. Do you intend to retain or consult an attorney in connection with that charge?
THE DEFENDANT: I will consult an attorney.
Because the municipal court judge could have assumed that defendant's consultation with counsel would lead to his retention, there was no need at this juncture for the municipal court judge to explain to defendant the perils of proceeding without counsel.
However, at defendant's second appearance before the municipal court, the judge had another brief discussion with defendant in which defendant indicated that he did not intend to be represented by counsel:
THE COURT: Okay. Mr. Ven, do you intend to hire an attorney?
THE DEFENDANT: No, Your Honor.
THE COURT: Okay.
THE DEFENDANT: I've consulted one.
At this point, the court should have made the kind of direct inquiry of defendant on the record required to support a finding that his decision to proceed without counsel was knowing and intelligent. He also should have advised defendant that he was entitled to assigned counsel if he was unable to afford counsel. However, the court failed to do so.
At the beginning of the trial, the municipal court had another discussion with defendant concerning his representation by counsel:
THE COURT: And you have previously indicated to the Court that you are waiving counsel and that you wish to proceed in this matter without an attorney.
MR. VEN: That is correct, Your Honor. THE COURT: And you have given -- you have been given sufficient to determine if you should have an attorney or if you do want an attorney. And it's my understanding you have decided to waive counsel. You do not wish to have an attorney; correct?
MR. VEN: That is correct, Your Honor. THE COURT: You know you have the right to an attorney throughout the proceeding.
MR. VEN: I understand that.
This colloquy seemed to indicate that there had been a previous waiver by defendant of the right to counsel that the court, after appropriate inquiry, had found to be knowing and intelligent, which the court was asking defendant to reaffirm before beginning the trial. However, the record before us does not disclose the kind of discussion with defendant required for an effective waiver of counsel or any finding by the municipal court judge that defendant's waiver of the right to counsel was knowing and intelligent. Furthermore, the court's satisfaction of its obligation to assure itself that a defendant's waiver of the right to counsel was knowing and intelligent is especially important in a case such as this where defendant not only faced possible incarceration if convicted but was in fact sentenced to a ten-day term of imprisonment.
We recognize that the inquiry required of a person charged with a disorderly persons offense in municipal court to confirm that a waiver of counsel is knowing and intelligent may be less comprehensive than the inquiry required of a defendant charged with an indictable offense who will be tried before a jury. However, the court in this case made no inquiry at all of defendant concerning his understanding of the charges, the penalties to which he would subjected if convicted, or the difficulties he could encounter in attempting to represent himself. Therefore, his conviction must be reversed.
Reversed and remanded to the Warren municipal court for a new trial.
© 1992-2011 VersusLaw Inc.