On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 107-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 2, 2011
Before Judges Axelrad and R. B. Coleman.
Defendant Mark H. Petherbridge appeals from a Law Division judgment of conviction entered following a de novo review on the record of proceedings in the Southampton Township Municipal Court. The Law Division found defendant guilty of simple assault.*fn1 Because it is unclear whether the Law Division reached that result on the basis of an independent assessment of the record or based on a misapprehension that it was bound to defer to the decision of the municipal court, we remand for clarification and, if warranted, for further proceedings.
The matter arises from an altercation between defendant and a former client of the farm where defendant works and lives. Defendant is the caretaker of the farm and husband to the owner. The former client, Robert Gross, boarded his horse, Jake, at the farm. Although clients pay the farm for boarding their horses, other services such as veterinary and farrier care are paid separately. In early December 2007, Gross had a heated discussion with the farm's horse trainer regarding Gross's nonpayment of bills. In this discussion, Gross yelled and screamed at the horse trainer. The trainer voiced her fear to defendant and his wife that Gross might harm her or damage the farm's property.
On March 12, 2008, defendant and his wife spoke with Gross's wife about the recurring late payment or nonpayment of bills for certain services relating to the care of Jake, specifically, that the veterinarian was refusing to tend to Jake until an outstanding bill for services was paid. During their conversation, defendant suggested that Jake might need to be put down if he did not receive the proper care. Mrs. Gross was offended. Upon hearing of the discussion between defendant and Mrs. Gross, Gross called defendant and yelled at him for confronting Mrs. Gross. Defendant testified that Gross threatened his life, and defendant was so disturbed by the phone conversation that he called the State police, who quickly arrived. Upon further reflection, defendant decided he did not want to "escalate" the situation. He asked the police at that time not to contact Gross concerning the incident. Instead, defendant personally spoke with Gross about his behavior, but to no avail. Gross became belligerent and was dismissive of defendant's request that he alter his behavior. As a result of that response, defendant testified that he told Gross he was no longer welcome on the farm property.
Gross disputed the assertion he was ever told that he was not welcome on the farm. On March 23, 2008, Easter Sunday, Gross and his daughter, T.V., arrived at the farm to tend to Jake. Gross remained in his truck while T.V. went to a portable restroom to change her clothes. According to Gross, defendant approached Gross's truck, banged on the window, cursed at Gross, and told him in offensive language to leave the farm.
The two men have differing accounts of what was said or who attacked whom, however, both agree that angry words were exchanged and a scuffle ensued. Gross claims defendant was brandishing a "cat's claw," a metal tool used to remove small nails, and he dove into Gross's truck, and started hitting him. According to Gross, defendant injured Gross's right index finger, lip and left elbow. By contrast, defendant claims that Gross jumped halfway through the open truck window, hit him first, and then when defendant pulled the cat's claw from his pocket to defend himself, Gross grabbed it and yanked defendant into the truck, striking him repeatedly. Both men testified that after defendant removed himself from the vehicle -- whether he dove in or was pulled in -- he backed away and walked to the barn or a nearby shed. Gross presumed defendant was going for a larger crow bar.
Gross then quickly put his daughter into the truck and drove across the street to get off the farm property. From there, he called 911. The police responded and arrested defendant.*fn2
At the trial in municipal court, the judge did not find the defendant's version of the confrontation to be credible. The municipal court judge also rejected defendant's contention that he acted in self-defense and found defendant guilty of assault. The municipal judge stated:
I got to be honest, I just don't find that testimony [by defendant] to be credible. I don't believe that's how this incident happened. I think what happened is, there was a confrontation at the window and [defendant] for whatever reason reached in and struck [Gross] [Gross] had an injury on his -- the right side of his face consistent with being punched. There was blood in the vehicle.
There's also testimony that by -- by his own testimony [defendant] says that he interjected, and that was his word, into this situation between [Mrs. Gross] and his wife. He also admits that he called Gross a liar, a thief, and a drug dealer which is indicative of his state of mind at the time. I just don't believe [defendant's] version of what happened. I don't think physically it's possible to do what he claims happened. They obviously were both hot heads. Both confronted each other and I think [defendant] reached in and struck [Gross] as evidenced by his -- the injury to his face.
I don't find self-defense to be a reasonable argument here. You have somebody who's seated in a vehicle and someone who's standing outside the vehicle. Even if [Gross] was able to turn himself completely around and strike ...